2008 Annual Survey of violations of trade union rights - United Kingdom
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - United Kingdom, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca6532.html [accessed 27 November 2015]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Trade unions' right to select their members was upheld in the landmark judgement of the European Court of Human Rights. Meanwhile, restrictions on the right to strike remain and employers are hiring oversees consultancies to prevent organising.
Trade union rights in law
Freedom of Association: The Trade Union and Labour Relations Consolidation Act (TULR(C)A 1992) sets out most trade union rights, including the right of workers to form and join trade unions of their choice. The Employment Relations Act (ERA) 1999 also contains provisions governing trade union rights. In 2004, a further Employment Relations Act was introduced, which strengthened existing legislation and created new protections.
Statutory recognition: Employers with 21 or more employees must recognise unions that can prove that a majority of employees want a union to represent them. A trade union may apply to the Central Arbitration Committee (CAC), a statutory body, for formal recognition, and the CAC has the power to compel an employer to recognise a union for the purposes of collective bargaining. Support for recognition must be shown either by majority membership, or via a workforce ballot, in which 40 per cent of those eligible to vote must vote in favour. A union has to show at least 10 per cent membership in the bargaining unit to trigger a ballot. Collective agreements are voluntary agreements and are not legally binding. Trade unions have traditionally supported the voluntary approach.
The ERA 2004 protects workers against being offered incentives by their employer not to be a member of a trade union, not to take part in the activities of or make use of the services of their union, and not to give up having their terms and conditions of employment determined by a collective agreement negotiated by their union. Workers are also protected against dismissal or other forms of reprisal for making use of the services of their trade union. The Act protects the role of unions in grievance and disciplinary hearings by giving the workers the right not only to be accompanied by a union representative but also for the representative to speak on the worker's behalf, a point which had been unclear under the ERA 1999. This rule applies even if there is no trade union at the company where the employees work (a provision already contained in the old Act).
Lack of protection for employees of small firms: Companies employing fewer than 21 workers are excluded from the statutory recognition provisions of the ERA.
Information and consultation rights: The 2004 ERA empowers the government to make regulations to implement the European Union's Information and Consultation Directive. Employees have the right to be informed and consulted about all decisions affecting their employment, failing which employers will face fines.
Strikes allowed – with limitations: Strikes must be confined to workers and their own employers, the dispute must be wholly or mainly about employment related matters, and the decision must be based on a secret ballot of the workers concerned. If striking workers are dismissed within 12 weeks of taking part in a legal strike, they can claim unfair dismissal. In most instances, after the end of a 12-week or longer period, where there has been a lock out, employees can be fired legally for participating in lawful strike action. However, the ERA 2004 places increased duties on employers to try to resolve the dispute through conciliation. Failure to do so can mean that dismissals after the protected period are unlawful.
Secondary picketing and sympathy strikes still outlawed: Secondary picketing was prohibited by the 1990 Employment Act, and there is no immunity from civil liability for workers taking part in sympathy strikes.
Insolvency laws: Under current insolvency law, unscrupulous businessmen can sack workers, declare their companies bust, buy up the assets and then restart trading without having to pay the sacked workers a penny.
Trade Union Freedom Bill – greater protection of right to strike: Further to a resolution adopted at its 2005 Congress, the national trade union centre, the Trades Union Congress (TUC), is seeking the adoption of a Trade Union Freedom Bill. The proposals in the bill include improved protection from dismissal for workers taking part in industrial action, simplification of the complex regulations governing strike ballots and notices, strengthening the bar on the use of agency workers to replace striking workers, revising the law on industrial action injunctions and modernisation of the definition of an industrial dispute. The TUC notes that despite important changes in industrial relations law since 1997, UK trade unions members have fewer rights to take industrial action than in 1906 when the current system was introduced.
Jersey: The Employment Relations (Jersey) Law 2007 has been the subject of much controversy since it was adopted in 2005 and eventually came into force in January 2007. The Act has formed the basis of a complaint to the ILO Committee on Freedom of Association in relation to various provisions concerning registration procedures; possible sanctions and penalties for legitimate trade union activity; definitions of "collective agreement" and "employment dispute" which limit the ability of unions to bargain collectively and take industrial action; and compulsory arbitration. The CFA has found substance in this complaint and urged the government to undertake tripartite consultations with a view to remedying the aspects of the legislation in breach of ILO Conventions and the principles of freedom of association.
Trade union rights in practice and Violations in 2007
The most outstanding feature of the statutory trade union recognition scheme has been a significant increase in voluntary agreements, although even today only about one third of the workforce are covered by collective agreements – about half the European average.
The right to expel extremists upheld: On 27 February the European Court of Human Rights (ECHR) upheld the right of the ASLEF trade union to be able to choose its members in accordance with the union's values. ASLEF's policy has always been to stand for equality and to "expose the obnoxious practices" of nationalistic political movements. An activist of the British National Party (BNP) who distributed anti-Islamic leaflets was expelled from the union in 2002. Following the court battle, ASLEF was forced to re-admit him into the union, against the union rules, because of the 1992 law that prohibited expulsion from a union on a basis of party membership. In 2005 ASLEF submitted a complaint to the ECHR, and the latter unanimously decided that the situation was not compliant with the freedom of association principles as stipulated in the European Convention on Human Rights. On 7 November the government proposed new laws removing obstacles on a trade union's right to expel members. In practice, trade unions currently can expel members because of their party membership, with compensation. The TUC reported that the BNP has sent some of its members to infiltrate the TUC in order to draw negative publicity when compensations are later granted in courts.
Anti-union tactics: The report, "Modern Rights for Modern Workplaces", released by the TUC in September 2002, details a number of tactics used by hostile employers during a recognition claim, which includes "setting up an in-house staff association, placing workers under surveillance as they walk past union organisers outside the workplace, issuing threats that they will close or re-locate the business rather than face recognition, packing the bargaining unit with new temporary employees before the ballot, packing union access meetings with management personnel, giving workers the option of going home early when there is a union meeting organised, dismissing activists or declaring their jobs to be redundant, intimidating workers on a one-to-one basis and 'encouraging' workers to sign personal contracts before or after recognition".
Professional union busters: The TUC also published a survey on employer responses to union organising in November 2003. A small minority of employers have used US consultants to successfully resist unionisation. Employers wishing to resist unionisation adopt a number of tactics ranging from victimisation and dismissal of union activists, denying access to the workplace, discouraging membership and circulating anti-union literature. As a result of TUC campaigning, new laws prohibiting the use of unfair practices by employers or unions came into effect in 2005, but new examples of such employer practices were reported again afterwards.
This year, the Kettle Chips company hired The Burk Group (TBG) to sabotage the recognition claim of Britain's largest trade union Unite. Before the ballot, unite was confident of a victory among production workers. After hiring TBG, the company persuaded the Central Arbitration Committee to include office workers as part of a larger bargaining unit that would vote on recognition. TBG then stressed the threat of strikes in the event of union victory, which influenced many office workers. In October, Kettle Chips staff, many of them vulnerable migrant workers, voted 206 to 93 not to join Unite. The union exposed the role of TBG and the aggressive use of supervisors as the most striking aspects of the employer's campaign.
Research highlights troubles with the right to organise: A study published in April 2006 by the TUC and the Labour Research Department shows that it has become increasingly difficult for unions to secure recognition from employers. From November 2004 to October 2005 there was a significant fall in the number of trade union recognition agreements, to 61 new deals covering 12,000 employees over the 12-month period compared to 179 deals covering 20,000 workers the previous year. The study also shows that unions were fighting hard for recognition, with the number of campaigns for recognition agreements rising sharply.
In January a survey of 583 human resource professionals and 524 union representatives by the TUC and Personnel Today concluded that being a union representative could seriously damage one's career prospects. Ninety-two per cent of trade unionists believed that their union activism damaged their careers, and 36 per cent of HR professionals agreed with this statement.
Massive online campaign triggers threats, sacking: In August, the trade union news website LabourStart.org launched an online campaign to support Fremantle Trust employees in North London care homes. The company CEO received over 5,000 protest emails. The company's reaction was to accuse the LabourStart editor Eric Lee of libel and threaten LabourStart with legal action. In September, Fremantle Trust sacked the Unison trade union representative Andrew Rogers. In the meantime, the management asked LabourStart to stop the campaign, which did not happen.
On 6 September, Fremantle Trust contacted the internet service provider for LabourStart and demanded, under the threat of lawsuit, that the provider shuts down the campaign. LabourStart had to shut down the campaign by noon of the next day, only to revive it instantly in nine languages on another server. Meanwhile, the internet provider concluded that the campaign was legitimate: no defamation was found in the contents.
Activists locked out at Cammel Laird Gibraltar: Trade union activists from the Transport and General Workers Union (TGWU) have been fighting for union recognition at the ship repair company Cammel Laird Gibraltar Ltd. Following the union's struggle against poor working conditions, the management set up a company staff association. Workers were asked to leave TGWU and join the association. When TGWU managed to organise an overtime ban action, the human resource director invited each worker individually to discuss if he or she supported the ban. On 8 March, four trade union activists were locked out. One of the activists was arrested under the ancient law barring mass gatherings and noise inside the city walls of Gibraltar. After strong representations made by the TGWU to local politicians, local press and other unions, an agreement was reached between the Gibraltar Trades Council and the government of Gibraltar, which opted for a vote by the workers for union recognition. This was accepted by the TGWU, but with the condition that all workers who are voting should have worked for the company for more than nine months and ballot papers should be colour-coded to identify the job roles. Three of these activists further suffered victimisation by not being allowed to attend a union representatives course on 11 April. After receiving advice from their union they decided to attend the union training and were later sacked.