10. Memorandum from the Communication
Workers Union
I believe you will have received a Submission
on the International Covenant on Economic, Social and Cultural
Rights from the Institute of Employment Rights, written by Professor
Ewing and John Hendy QC and dated 31 March 2004. The CWU fully
supports that Submission. I thought it might be helpful to your
Committee if I drew attention to a specific case which shows the
limitations imposed on this and other unions by the UK's failure
to implement the right to strike guaranteed by Art 8(1)(d) of
the International Covenant on Economic, Social and Cultural Rights.
I should point out that many of the restrictions
imposed by UK law on the right to take industrial action have
had an impact on this union. It is not only that the union has
many times in the past been obliged to desist from taking what
it has been advised would be unlawful industrial action in circumstances
where it has considered that by any standard of fairness and,
indeed proportionality to the power of employers over our members
at the workplace, such industrial action was wholly justified
in order to defend our members legitimate interests. More than
that the union has felt obliged not to support its members to
the extent of repudiating action they may have felt compelled
to take in circumstances where the law, which is highly complex,
has been uncertain and so offered the real risk of an employer
(or affected third party) obtaining an injunction against the
union. Such injunctions are, as you know, granted on the lowest
conceivable legal threshold—that of demonstrating merely
that "there is a serious issue to be tried", an "arguable
case." The penalties for non-compliance with an injunction
are fines, sequestration and imprisonment—even if the injunction
at full trial is shown to have been unwarranted as a matter of
law.
The point is demonstrated in the recent case
of British Telecommunications plc v Communications Workers
Union [2003] IRLR 58. In that case BT sought to impose a new
productivity scheme called "self motivational team working."
The members objected. The union therefore proposed a strike of
all its engineering members in Customer Services Field Operations
and Northern Ireland. There were 14,001 such members comprising
some 90% of those workers. The members were balloted and the ballot
was in favour.
The union had given notice of the ballot as
s 226A of the Trade Union and Labour Relations Act 1992 required
it to do. After the ballot and prior to the commencement of the
industrial action, BT challenged the ballot notice. S 226A requires
that the notice must contain "such information in the union's
possession as would help the employer to make plans and bring
information to the attention of" the voting employees. Furthermore,
"if the union possesses information as to the number, category
or workplace of the employees concerned" the notice must
contain that information too.
The union's notice identified that it intended
to ballot the 14,001 members in the categories specified across
all BT's workplaces.
The court held that:
"it will, or at least arguably
may, be of practical assistance to BT to have numbers broken down
beyond the simple information that 14,001 is the total number
concerned."
Further:
"it is arguable that the union
has information as to numbers employed in different categories
in Scotland, England and Wales, information which would be capable
of being helpful to BT in making plans to address the strikes
which have been called."
This was not withstanding that since 90% of
the relevant workforce were union members BT knew perfectly well
that what was intended was a strike by, so far as possible, the
entire identified workforce. It was also the case that BT were
unable to tell the court what kind of plans they would have made
if they had they had more information as to numbers in England,
Wales and Scotland.
Because there was an arguable case, an injunction
was granted preventing the union calling or supporting the industrial
action. If any members had nonetheless gone on strike the union
would have had to repudiate their action and they would have been
unprotected by unfair dismissal law if they had been sacked.
The decision, of course, defeated the democratic
decision of the members expressed in accordance with the onerous
provisions of the law. More than that the denial of the right
to strike to the union and to these members plainly conflicts
with the guarantee contained in Art 8(1)(d) of the International
Covenant. Furthermore the case illustrates the extent to which
UK law breaches the European Social Charter and Convention 87
of the ILO. These points are well made in the Submission of the
Institute of Employment Rights. But I would like to draw attention
in particular to the most recent report of the Conclusions of
the European Social Rights Committee under Art 6(4) of the European
Social Charter which is similar, of course, to Art 8(1)(d) of
the International Convention: On 6 April 2004 the European Social
Rights Committee reported (Conclusions XVII-1) its conclusions
in relation to the right to strike in the UK and found, once again,
that UK law was not compliant with the Charter. The CWU considers
that the Committee's analysis could have been written with the
BT v CWU open in front of it. I attach to this letter the
section of the Conclusions introducing its consideration of the
UK and the section dealing with Art 6 of the Charter. I trust
these will be of interest to you.
The Government in its Review of the Employment
Relations Act 1999, "reaffirms its commitment to retain the
essential features of the pre-1997 law on industrial action"
apart from small changes to the information required to be given
in pre-strike notices and to minor accidental balloting failures.
The CWU and its lawyers have studied carefully the changes to
be introduced to s 226A and we find that a substitute obligation
is to be introduced which will require the union to supply the
employer with lists and figures "together with an explanation
of how those figures were arrived at":
"The lists are:
(a) a list of the categories of employee
to which the category of employees concerned belong; and
(b) a list of the workplaces of the employees
concerned.
The figures are:
(a) the total number of employees concerned;
(b) the number of employees concerned in
each of the categories in the list mentioned (above); and
(c) the number of the employees concerned
who work at each workplace in the list mentioned (above).
The lists and figures supplied under this section
must be as accurate as is reasonably practicable in the light
of the information in the possession of the union at the time
when it (gives the notice of the ballot)."
Quite frankly, we consider these obligations
to be more onerous than the existing law. It seems most unlikely
to us that the government has taken into account the findings
of the international supervisory bodies, in particular the Conclusions
of the Economic and Social Rights Committee appended to this letter
which found, as you see, that current ballot notice requirements
were "excessive." We can see no basis on which a breach
in this respect of Art 6(4) of the European Social Charter would
not equally amount to a breach of the similar right guaranteed
by Art 8(1)(d) of the International Covenant on Economic, Social
and Cultural Rights. We conclude that even after the changes proposed,
UK law will remain in breach of its international obligations.
I hope that the above gives your committee some
insight into the problems faced by working people and their trade
unions by the UK's failure to implement the International Convenant
on Economic, Social and Cultural Rights which it has voluntarily
submitted itself to be bound.
18 May 2004
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