18 February 2016

By Carolyn Jones, Director, Institute of Employment Rights

It’s official! The Trade Union Bill currently being rushed through Parliament by the Conservative Government is in breach of international labour standards. So says the latest report to be published by the ILO Committee of Experts in February 2016.

To regular readers of IER’s website, this will come as no surprise. Reports presented by Keith Ewing and John Hendy have highlighted how UK laws in general and the Trade Union Bill in particular, fail to meet ILO standards. Articles prepared by others from the IER network of experts such as Michael Ford and Tonia Novitz have explained in some detail how the UK continues to be criticised for failing to reflect standards agreed and accepted as fundamental in a civilised society. Now, in this latest ILO report, the UK government is taken to task over proposals contained in the Trade Union Bill.

So what gives the ILO authority to comment on domestic laws? Readers will know that the right to strike is a fundamental right, embodied in the United Nations International Covenant on Economic, Social and Cultural Rights, 1966. It is a fundamental right that has been protected by the ILO supervisory bodies for over 60 years (principally by the Committee on Freedom of Association since 1952 and the Committee of Experts on the Application of Conventions and Recommendations since 1959). The decisions of these supervisory bodies have given rise to a body of principles on the right to strike, broadly shared by the international community and based on the general principles of freedom of association.

Perhaps the more pertinent questions to ask are what gives the Tories the right to so arrogantly flout international laws relating to trade unions? And why is the government wasting time introducing yet further restrictions to a framework of law that is already acknowledged as the most restrictive on trade unions in the western world? Despite the Bill and its impact assessment being criticised as ‘not fit for purpose’ the Government is bulldozing ahead with its unpopular proposals

Concerns over Trade Union Bill 2015

On 01 September 2015 and again on 25th November 2015, the TUC submitted complaints to the ILO about the contents of the proposed Trade Union Bill. In replying to the complaints, this 2016 annual report from the ILO Committee of Experts begins by reminding the Government of the Committee’s previous request that the UK “carry out a review… of the issues raised by various workers’ organisations… relating to the exercise and regulations of industrial action”.

The Committee goes on to note that while the Government asked Bruce Carr to undertake a review, the terms of reference of that review were restricted to “limited questions of alleged use of extreme tactics in industrial disputes and the effectiveness of the existing legal framework for preventing inappropriate or intimidatory actions in such disputes”. The Committee of Experts go on to point out that “the review was not charged to examine the various matters that had been raised by the workers’ organizations in the country over recent years”.

Nevertheless, as the Committee notes, the result of the “limited review” was used as a basis for proposals contained in the Trade Union Bill, proposals which the ILO Committee goes on to judge as undermining a number of ILO Conventions including Convention 87 (on the fundamental right of Freedom of Association and Protection of Right to Organise), and Convention 151 (on Labour Relations in Public Services).

The most serious complaints raised by the Committee relate to:

• the impact of the 40% threshold, which the Committee noted “would constitute an obstacle to the right of workers’ organizations to carry out their activities without interference”;
• The inclusion of education and transport sectors as ‘important services’ covered by the additional 40% threshold, which the Committee argues goes beyond the ILO’s definition of essential services. The Committee warn that the threshold "is likely to severely impede the right of these workers and their organizations to organize their activities in furtherance and defence of their occupational interests without interference";
• The restrictive nature of postal ballots and the need to modernise the system;
• The use of agency workers as striker replacements;
• The removal of check-off and facility procedures in the public sector;
• The proposals to invalidate existing collective agreements relating to facility time and check off arrangements;
• The requirement to opt in to the political fund, within a limited time period;
• The further restrictions on picketing;
• The proposals to increase the powers of the Certification Officer.

The Committee has asked the Government to review these matters with the social partners with a view to modifying the Bill. They also demand that the Government reply in detail before the end of 2016 to the Committee of Experts’ comments and concerns. Don’t hold your breath! As the initial comments of the Committee’s report suggest, the Government does not have a good track record of either discussing matters with social partners or modifying its ideologically driven proposals.

No doubt these same issues together with previous complaints by trade unions will be considered once again by the Committee of Experts in their next annual report, by which time the Trade Union Bill is likely to be an Act, albeit with the possibility of some minor concessions. This is one reason why Keith Ewing and John Hendy have consistently argued that this Bill will not be defeated in Court Rooms or Lecture theatres but by political and industrial action.

But despite the Government’s obvious arrogant attitude towards the ILO and the principles of international law, the now infamous leaked ‘Dear Oliver and Chris’ letter from Nick Boles suggests the government is rattled. In that letter, marked ‘sensitive’ , the Minister of State for Business suggested a number of concessions be considered to avoid the probability of the House of Lords defeating “flagship” parts of the Trade Union Bill. As Christine Blower from NUT said recently at an IER Rally, "such concessions, though welcome, do not go nearly far enough to remove the inherent dangers in the Bill". Kill the Bill – derail the Act must remain our attitude and our strategy.

An earlier ILO report on the principle of the right to strike noted, "the full importance of the ILO principles on the right to strike emerges when one realizes the extent to which substantial restrictions on fundamental trade union rights undermine not only the balance of labour relations and the existence of a counterbalance to the power of the State in the economy, but also reduce expectations of any improvement in conditions of employment and in the standard of living within civil society".

As Steve Turner from UNITE said at our recent rally against the Trade Union Bill, we cannot allow that to happen – not on our watch!