The Origins and Influence of ILO Convention No. 98

1. The Origins and Influence of ILO Convention No. 98 The UK Story Tonia Novitz, Professor of Labour Law, University of Bristol

2. 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

3. 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 Myrddin-Evans.

4. No. 87 on Freedom of Association and the Right to Organise Art. 2: right of workers (and employers) to establish and join organisations ‘of their own choosing’ Art. 3: right of organisations to determine their own activities Art. 8: subject to ‘the law of the land’? Art. 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’. The Content of Conventions No. 87 and 98

5. 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.

6. 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…

7. 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: trade union discrimination: the problem of blacklisting (Case 1618), the Wilson and Palmer litigation, and the Ullswater amendment (Case 1730) Art. 2: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)

8. 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)

9. 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

10. 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

11. 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.

12. 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).

13. 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.’