Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the information provided in the Government’s report, the comments made by UNISON in November 2000 and the reply thereto.

1. Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without interference by the public authorities. The Committee recalls that its previous comments concerned section 174 of the Trade Union and Labour Relations Act of 1992 (TULRA) as amended in 1993, which severely restricted the situations in which trade unions may exclude or expel individuals from membership. The Government states that there are no developments to report and that the number of complaints in this respect has remained at the same level. The Committee requests the Government to keep it informed of any developments in respect of this section, including information on complaints brought before the industrial tribunal under this provision.

2. Individual rights in relation to unlawful industrial action (section 235A of the 1992 TULRA). The Committee notes that the first (and so far only) case of this type was brought by parents on behalf of their child, and related to industrial action by his teachers. The teachers took industrial action because of a direction from the head teacher that the child, whom the teachers considered disruptive, should be taught in ordinary classes. The case failed as the court held that the industrial action was lawful. The Committee notes this information.

3. Section 59 of the Merchant Shipping Act, 1995 (strike when a ship is securely moored). The Government indicates that consultations were undertaken with interested parties to identify possible solutions and that there remains a need for provisions to guard against actions which could result in serious damage to vessels, or serious injury or death to persons; the Government proposes to amend section 59 so that it applies only to actions which cause or could cause loss or serious damage to vessels, or serious injury or death to any person. The Committee notes this information and requests the Government to provide it with the text of the amending provision in its next report.

4. Definition of trade dispute (section 244 of the 1992 Act). The Committee notes the Government’s observations in reply to UNISON’s comments in connection with the UCLH case, where national courts upheld an injunction preventing proposed industrial action on the ground that the action was not "in contemplation or furtherance of a trade dispute", a view which was confirmed by the European Court of Human Rights. While noting the particular circumstances of the case (in the context of subcontracting of hospital services to a private consortium, the union intended to take industrial action to obtain a guarantee that its members’ terms of employment would be transferred to the new employer), the Committee notes that due to the restrictive definition of trade disputes, workers in practice lose the common law protection against breach of employment contract in such situations and, therefore, are prevented from using an essential means of defending their interests. The Committee requests the Government to keep it informed in its next reports of measures taken or intended to remedy this situation.

5. Review of the 1999 Employment Relations Act. The Committee notes that an in-depth review of the ERA was launched in July 2002, to examine the operation of the entire Act through full consultation with unions, employers and other interested parties, including an assessment of the operation of these provisions in practice and their interpretation by the courts. The Committee requests the Government to keep it informed of the progress and results of that review in its next report, including on issues that were raised in its previous comments on the basis of comments by workers’ organizations (e.g. UNISON’s comments on pre-ballot and pre-strike notices, and in particular the interpretation of the amendments brought to section 226A(2)(c) of the 1992 TULRA) and on issues raised in previous observations.