2009 Annual Survey of violations of trade union rights - United Kingdom
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - United Kingdom, 11 June 2009, available at: http://www.refworld.org/docid/4c52cac024.html [accessed 20 September 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Restrictions on the right to strike remain in place. British Airways have been using EU law to prevent a strike. The retail giant Marks & Spencer sacked a worker after he talked to the press about the company's plan to cap redundancy pay.
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.
On 13 November, the TULR(C)A was amended to allow a trade union to exclude a person on the basis of his or her membership, or former membership, of a political party. This followed the 2007 decision of the European Court of Human Rights arguing that UK law was in breach of Article 11 of the European Convention on Human Rights (ECHR), which 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. The Trades Union Congress (TUC, the national trade union centre) continues to take the view that the new laws do not fully comply with Article 11 of the ECHR, however.
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 2004 ERA protects workers against being offered incentives by their employer not to become members of a trade union, not to take part in the activities of their union or make use of its services, and 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 1999 ERA. This rule applies even if there is no trade union at the company where the employees work.
Lack of protection for employees of small firms: Companies employing fewer than 21 workers are excluded from the statutory recognition provisions of the ERA.
Right to collective bargaining: Collective bargaining is protected by law. However in 2006, the ILO Committee of Experts expressed concern at the absence of any right for UK unions to access workplaces.
Information and consultation rights: The 2004 ERA empowered the government to introduce regulations for implementing 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 2004 ERA places additional 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 the right to strike: Further to a resolution adopted at its 2005 Congress, the TUC has been 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 (CFA) 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 seek the solution in consultation with the social partners. The government insists, however, that many restrictions criticised by the CFA, such as the ban on solidarity strikes, are necessary.
Trade union rights in practice and violations in 2008
Collective bargaining: 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.
Anti-union tactics: Following reports in 2002 and 2006 on difficulties encountered by trade unions to secure recognition from employers, a 2007 survey of 583 human resource professionals and 524 union representatives conducted by the TUC and Personnel Today concluded that according to 92% of the unionists and 36% of the HR professionals, being a union representative could seriously damage one's career prospects.
In July 2008, the government signed a joint statement with trade unions, business and voluntary organisations providing for a set of rights for employees of government contractors, including access to information about trade unions.
Professional union busters: Following a 2003 TUC survey and TUC campaigning, new laws prohibiting union busting tactics by employers came into effect in 2005.
British Airways threatens to invoke the EU law, pilots turn to the ILO: The decision by British Airways (BA) to establish a new subsidiary triggered a dispute with the British Airline Pilots' Association (BALPA). At the end of February, after all negotiations had been exhausted, pilots voted overwhelmingly on strike action. BA threatened to take legal action against BALPA for unlimited damages on the basis of the Treaty on the European Community. BALPA went to the High Court to seek a view on the European legislation on strike action, however UK judges continue to avoid ruling on such matters, despite the fact that two recent decisions of the European Court of Justice (Laval and Viking cases) gave national courts the ability to adjudicate on the merit and legality of a strike under EU law. In September, BALPA decided to lodge a complaint, later endorsed by the International Transport Federation, before the ILO Committee on Freedom of Association (CFA), since the government had done nothing to clarify the law on strike action.
Marks & Spencer fires a whistleblower: On 3 September, Tony Goode, a member of the GMB trade union at Marks & Spencer (where he had been working for 25 years) was dismissed for revealing the company's plan to cut redundancy pay. However, Goode only spoke to the press after he had tried in vain to resolve the issue internally. GMB suspected that the company had access to Goode's private mobile phone records. Even though the leaked information was not classified as confidential, Goode was suspended and then sacked. After an unsuccessful appeal to the company, GMB decided to represent Goode in the industrial tribunal.
Unite wins recognition at Leicester Paper Company: "Unite", the country's largest trade union (affiliated to the TUC and ICEM), has been organising workers at the Leicester Paper Company in very hostile circumstances. The company tried to avoid recognising the union by constantly including new workers in the proposed bargaining unit and changing various employment contracts. On 14 July, after two hearings, the Central Arbitration Committee granted Unite recognition and obliged the employer to start negotiations within one month.
Workers forced into self-employment and sacked for turning to a trade union: Six Kosovo construction workers worked on a contract that was transferred to FM Conway Ltd. The new contractor put pressure on the men to work on a self-employed basis. When they refused to do so and involved the Union of Construction, Allied Trades and Technicians (UCATT), they were dismissed on trumped-up charges. UCATT planned to represent the Kosovans in this unfair dismissal case in court.