Transcript The Origins and Influence of ILO Convention No. 98

The Origins and Influence of
ILO Convention No. 98
The UK Story
Tonia Novitz, Professor of Labour Law, University of Bristol
The UK and the ILO
Was the ILO ‘largely the creation of British
civil servants and trade unionists’?
R. Lowe, ‘Hours of Labour: Negotiating Industrial
Legislation in Britain 1919 - 1939' (1982) 35 Economic
History Review at 260
Note influential figures in the ILO:
- Director:
Harold Butler 1932 -1939
- Director-General:
Wilfred Jenks 1970 - 1973
The UK Role in Negotiations over
Convention Nos 87 and 98
Problems with ratification of other ILO
Conventions
K. Ewing, Britain and the ILO, Second Edition (1994) Institute
of Employment Rights, 20; House of Commons Hansard, 27
May 1921, col. 486.
but not Nos. 87 and 98?
Convention No. 87 described by UK government representative
as ‘an edifice of international legislation relating to freedom of
association which will be a blessing to mankind’.
ILO, Record of Proceedings (1947) International Labour
Conference, 30th Session, 304 per Sir Guildhaume MyrddinEvans.
The Content of
Conventions No. 87 and 98
•
Art.
Art.
Art.
Art.
No. 87 on Freedom of
Association and the Right to
Organise
2: right of workers (and
employers) to establish and
join organisations ‘of their own
choosing’
3: right of organisations to
determine their own activities
8: subject to ‘the law of the
land’?
11: state to take ‘all necessary
and appropriate measures’
•
No. 98 on the Right to
Organise and Collective
Bargaining
Art. 1: protection against acts of
anti-union discrimination
Art. 2: adequate protection from
‘acts of interference’ especially
from ‘domination of
employers…’
Art. 3: machinery appropriate to
national conditions to be
established
Art. 4: measures to be taken to
‘promote the full development
and utilisation of machinery for
voluntary negotiation… with a
view to the regulation of terms
and conditions of employment
by means of collective
agreements’.
UK Ratification and Implementation
The UK was the first state to ratify both ILO Conventions No.
87 (on 27 June 1949) and No. 98 (on 30 June 1950).
BUT the UK never
adopted any implementing
legislation - taking the view
that the UK was already in
compliance.
Note ratification of ILO
Convention No. 151
relating to the public
sector (1978) ratified
by the UK on 19 March 1980.
UK Compliance 1949 - 1979
UK laissez-faire
Endorsement of closed shop
by ILO CFA – see:
Case No. 96, 13th Report (1954) and
Case No. 182, 30th Report (1958)
One other case concerning negotiation
machinery in banking sector resolved
Case No. 292, 105th Report (1968)
Exceptions to voluntarism:
Industrial Relations Act 1971
(ss 44 – 50)
Employment Protection Act 1975
(ss11 – 16)
Not subject of ILO
comment…
UK Non-compliance 1979 - 1997
Denunciation of ILO Conventions (although not Nos 87 and 98) and few new
Conventions ratified (none from 1987 onwards).
Violation of ILO Convention No. 98:
Art. 1:
Art. 2:
trade union discrimination: the problem of
blacklisting (Case 1618), the Wilson and
Palmer litigation, and the Ullswater
amendment (Case 1730)
issue of interference: the ban on union
membership at GCHQ (Case 1261)
intimidation in the Co-Steel plant in
Sheerness (Case 1852)
Arts3&4: no ‘machinery’ for recognition
as under EPA,
but creation of new machinery for control
of public sector pay… the Pay Review
Body… (Cases 1038 and 1518)
Compliance from 1997 onwards?
Apparent enthusiasm for freedom of association:
•
•
•
Restoration of right to join a union to workers at GCHQ
Support of ILO Declaration on Fundamental Principles and Rights at Work 1998,
in which freedom of association and the right to collective bargaining are listed as
‘fundamental’ (one of four core labour standards)
Ratification of ILO Convention No. 111 on the elimination of discrimination 1958
(in 1999), ILO Convention No. 138 on minimum age 1973 (in 2000), and ILO
Convention No. 181 on the worst forms of child labour 1999 (also 2000). These
are all ‘core’ Conventions. The UK has also ratified various maritime Conventions
and most recently ILO Convention No. 187 on a promotional framework for
occupations safety and health 2006 (in 2008).
Underlying reluctance to implement fully Convention No. 98:
Issues have arisen concerning:
•
anti-union discrimination (Convn No. 98, Art.1)
•
Protection from ‘acts of interference’ and
domination of employers’ (Convn No. 98, Art.2)
•
collective bargaining machinery (Convn No. 98,
Arts 3 and 4)
Violation of Art. 1 - Blacklisting
Follow up to Case 1618:
Employment Relations Act 1999, s.3:
power for the Secretary of State to introduce regulations
which prohibit the compilation, dissemination and use of
trade union blacklists –
draft Regs issued for consultation, but no action taken
The Consulting Association: raid in February 2009
Government statement that would introduce legislation:
May 2009
Response to the European Court of Human
Rights judgment in Wilson v UK
UK initially dealt with ILO criticism by enactment of
Employment Relations Act 1999.
Clear from judgment of the EtCHR in Wilson (2002) that
this was insufficient
Ewing (2003) 32 ILJ 1-22.
Employment Relations Act 2004:
An insufficient response again?
Concerns voiced by ILO Committee of Experts in 2009
Interference under Art. 2:
Trade Union Recognition and Membership
Report of the Committee of Experts on the Application of Conventions and
Recommendations (2009) concerned with:
- limited scope of the ‘unfair practices’ provision under the statutory
recognition procedure
- use of contractual clauses in the shipping sector forbidding contact with a
recognized trade union
- the lack of provision for multiple unions where one trade union fails to
meet the 40% threshold
- exclusion of small businesses employing less than 21 workers (special
arrangements can and should be made)
NOTE: More general problems with access to trade union representation
also highlighted in an Individual Direct Request issued under Convention No.
87.
See Dukes (2008) 37 ILJ 236-267; also Bogg (2009) 38 ILJ forthcoming.
A further issue –considered by the ILO supervisory bodies thus far in
relation to ILO Convention No. 87 – is whether the UK legislative response
to the ASLEF case in the Employment Act 2008 constitutes undue
government interference in trade union affairs
See Ewing (2009) 38 ILJ 50-57.
Use of Public Sector Pay Review
Bodies: Compliance with Art. 4?
Prison Officers’ Association
ILO CFA: Case No. 2383
The Ministry of Justice v POA [2008]
ICR 702; [2008] IRLR 380 (QBD).
The Global Jobs Pact adopted by ILO
International Labour Conference June 2009
Art. 14: ‘International labour standards create a basis for and
support rights at work and contribute to building a culture of
social dialogue particularly useful in times of crisis. In order to
prevent a downward spiral in labour conditions and build the
recovery, it is especially important to recognize that:’
‘Respect for fundamental principles and rights at work is critical
for human dignity. It is also critical for recovery and
development.’
Consequently, there is to be a commitment to increase:
(amongst other objectives):
‘respect for freedom of association, the right to organize and
the effective recognition of the right to collective bargaining as
enabling mechanisms to productive social dialogue in times of
increased social tension, in both the formal and informal
economies.’