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Tonia Novitz
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Title:
International Principles and Domestic Pragmatism:
Will the Employment Relations Act 1999 implement international labour
standards?
September 1999
The present Labour Government has declared a greater interest in compliance with international labour standards than did its predecessor. This paper compares Ministerial rhetoric with the reforms contained in the Employment Relations Act, focussing on standards relating to freedom of association. It identifies a disjuncture between statements of international principle and the policy of domestic pragmatism.
A. The International Labour Organisation: Its Standard-Setting and Supervisory Capacity
A key source of international labour standards is the tripartite International Labour Organisation (ILO), a UN agency. The principle of freedom of association must be respected by every member of the Organisation, under the ILO Constitution. ILO Conventions No. 87 on freedom of association and the right to organise (1948) and Convention No. 98 on the right to organise and collective bargaining (1949), are two of seven ‘core’ ILO Conventions. The UK was the first state to ratify Convention No. 87 in 1949 and ratification of Convention No. 98 followed soon afterwards. A campaign to secure ratification of all core Conventions was launched in 1995. Once a state has ratified a Convention, under international law it is bound by the obligations contained therein. These obligations, which set minimum standards, can only then be evaded by denunciation.
Compliance with ratified ILO Conventions is monitored by a reporting system, in which a Committee of Experts evaluates state reports and observations from trade unions and employers’ associations. Selected cases are then discussed by the tripartite Conference Committee which may highlight non-compliance in a 'special paragraph'. Complaints procedures are also available, the most important for our purposes being that relating to freedom of association. A tripartite Committee on Freedom of Association bases its jurisdiction on the constitutional guarantee of freedom of association, and will therefore entertain complaints from trade unions and employer organisations regardless of whether the State in question has ratified Conventions Nos. 87 or 98. Its jurisprudence, contained in a Digest published at regular intervals, is supplemented by the occasional decisions of the Fact-Finding and Conciliation Commission on Freedom of Association and is closely related to that of the Committee of Experts, which also provides a periodic General Survey on freedom of association.
There is no military or trade sanction available for failure to comply with ILO standards. The Organisation depends on international embarrassment as a means by which to encourage compliance.
B. The UK Response to International Labour Standards: Prima Facie Evidence of a Change in Attitude
From 1979 - 1997 there was significant resistance to new ILO initiatives. For ten years no ILO Convention was ratified by the UK, while numerous Conventions were denounced. Obligations under Conventions Nos. 87 and 98 were construed narrowly, despite concerns expressed by the TUC and ILO supervisory bodies.
Examples of a change in attitude on the part of the 'New Labour' Government include:
- Indirect acceptance of ILO standards through the adoption of EC Directives.
- Compliance with ILO recommendations when trade union membership was restored to GCHQ.
- Statements made by Government representatives at the ILO International Labour Conference indicating a commitment to ILO standards and human rights for workers.
- Participation in drafting of the ILO Declaration on Fundamental Principles and Rights of Workers, as well as the new ILO Child Labour Convention.
- Ratification of one of the two core ILO Conventions still outstanding, Convention No. 111 on the elimination of discrimination, in June 1999.
- Ministerial statements in Parliament criticising Conservative government for breaches of international labour standards, and claiming that the present Government takes its ILO commitments ‘very seriously'.
- New provisions in the Employment Relations Act relating to protection of trade union members from blacklisting and protection of strikers from dismissal were expressly stated to be a response to previous criticism from ILO supervisory bodies.
C. Convenient Evasions: or what has been left out of the Employment Relations Act
Nevertheless, the Employment Relations Act will not change various facets of British labour legislation which are arguably in violation of ILO standards. For example, trade unions will still be unable to discipline members for refusing to take industrial action; nor will they be able to claim immunity from civil liability in respect of sympathy strikes. This is despite the recent challenge to such provisions contained in a 1999 Report of the ILO Committee of Experts.
Moreover, in certain instances the Employment Relations Act seems only to make a partial attempt to comply with ILO standards and recommendation. This paper considers three examples.
* Section 16 and Schedule 5 of the Employment Relations Act introduce a new section 238A into Trade Union and Labour Relations Consolidation Act 1992 (TULRCA), providing limited protection of workers who take industrial action from dismissal. The eight week threshold period led to challenge from the Opposition who wished to see it shortened. More importantly, such a threshold does not appear to comply with ILO standards.
* Section 1 of the Employment Relations Act inserts new Schedule 1A into TULRCA, thereby providing a mechanism whereby an employer may be obliged to recognise a trade union for the purposes of limited collective bargaining, and ultimately to adhere to a procedure agreement according to which such bargaining should take place. These provisions only apply to workplaces containing 21 or more employees and, thereby, the problem of numerical thresholds arises again. Once again, the Conservatives challenged this magic number and there is even statutory provision for it to be raised or reduced as ‘necessary’. This numerical flexibility seems to be inconsistent with the body of case law and jurisprudence established by the ILO Committee on Freedom of Association.
* Section 2, Schedule 2 and Section 17 of the Employment Relations Act reforms the present law relating to discrimination on grounds of trade union membership. The controversy here centres, not on numerical thresholds, but on the implications of the amendments for sections 146 and 148 of TULRCA. This raises issues associated with the cases of Associated Newspapers v Wilson and Associated British Ports v Palmer [1993] IRLR 336 (CA); [1995] IRLR 258 (HL), and subsequent criticism of UK law by the ILO Committee on Freedom of Association and Committee of Experts. There are two strands to this criticism. Firstly, the ILO supervisory bodies consider that there should be protection from discrimination on grounds of trade union membership regardless of whether this is by act or omission. Secondly, in their view, no distinction should be drawn between trade union membership and access to collective bargaining. Schedule 2 provides explicit protection of trade union members from discrimination by omission as well as direct action. However, there has been no acknowledgement of the ILO view that trade union membership and collective bargaining are inter-related. Instead, a separate provision, section 17, gives powers to the Secretary of State to make regulations (subject to an affirmative resolution procedure) to protect workers from detriment and dismissal where they refuse to enter into a individual contract which would replace a collective agreement. The key issue is how these powers are constrained by sub-section 4, which stems from the Conservative ‘Miller’ amendment proposed in the House of Lords. The failure to repeal section 148(3) TULRCA also suggests that breach of ILO standards will continue.
D. The Implications: Is ILO Interest in UK Industrial Relations Likely to Subside?
The Labour Government’s stated commitment to international principle may seem a welcome departure from the previous recalcitrance of the UK. However, this departure is not as dramatic as Ministerial statements might suggest. The Employment Relations Act does not take all the measures necessary to comply with ILO recommendations.
The 1999 Report of the Committee of Experts suggests that the ILO will continue to identify instances of non-compliance, despite the emergence of an apparently well-intentioned Labour Government. This is, in part, because ILO supervisory organs are unlikely to depart from the jurisprudence they have developed, by consensus, over so many years. However, it is also due to the actions taken by the TUC to date. For example, it was evident from the 1999 Report that the Committee of Experts also relied heavily on representations made by the TUC. Moreover, there remains the potential for any trade union, not only the TUC, to bring a complaint before the ILO Committee on Freedom of Association.
The onus will be on the trade union movement to utilise ILO procedures, if more subtle instances of Government resistance are to be addressed. Early indications are that the TUC will be prepared to do so. At the 1999 TUC Congress a motion was carried, calling for ratification and compliance with all ILO Conventions and for protection of the right to strike in line with ILO definitions. It seems that Government efforts to avert international embarrassment will be in vain, if unions are not prepared to settle for the pragmatic compromise represented by the Employment Relations Act.
This paper was delivered to the Industrial Law Society at its Annual Oxford Conference in September 1999. An extended version of this paper is due to be published in the Modern Law Review later this year