20. Memorandum from the Transport and
General Workers Union
I write to convey this union's support for the
Submission on this subject made to your Committee by the Institute
of Employment Rights, drafted by Professor Ewing and John Hendy
QC and dated 31 March 2004. Whilst my union supports the entirety
of the submission we would wish to draw to your attention a particular
example of the impact on working people in this country of 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. The case concerns workers formerly employed by
Friction Dynamics Ltd. The facts of the case may be well
known to your Committee but I hope I will be forgiven for setting
them out again, in summary.
In Caernarfon in North Wales, an area of high
unemployment, 86 workers—all members of the TGWU and the
whole of the production workforce—were dismissed for taking
strike action. The strike was the last resort available to resist
action taken by the employer effectively to derecognise the TGWU
which had long standing collective agreements with the firm. The
employer's purpose in by-passing the union was in order that it
could unilaterally impose on the workforce changes to terms and
conditions (including pay cuts) which were very adverse to them.
The employer sought to exploit s 238A of the Trade Union and Labour
Relations Act 1992 (inserted by the Employment Relations Act 1999)
which provides a remedy for unfair dismissal to workers dismissed
for taking lawful industrial action within eight weeks of the
start of the industrial action (or longer period if the employer
has failed to take reasonable procedural steps to resolve the
dispute): "the eight week rule." The employer wrote
to the workers at Friction Dynamics the day after the eighth week
and sacked them all. But the workers, supported by the TGWU, took
their case to an employment tribunal which decided that a letter
sent by the employer (unwisely) on the second day of the industrial
action technically amounted to a dismissal. So the later attempted
dismissal was irrelevant and the workers were held to be dismissed
within the eight weeks. Consequently the workers were held to
be unfairly dismissed and became entitled to compensation.
In fact the employer then went into liquidation
and the former employees will only be eligible to receive basic
awards (equivalent to redundancy payments) paid not by the employer
but by the Secretary of State for Trade and Industry, ie the tax
payer. The employer now trades under the name of Dynamics Friction,
I understand.
More importantly, the workers lost their jobs.
And even if the employer had not gone into liquidation my union
was advised that it might prove impossible to secure re-instatement
orders since the employer would have argued that it was not practicable
to take the workers back because the employer had taken advantage
of the very depressed labour market in Caernavon to fill those
jobs that were needed with non-union labour at reduced rates of
pay. We were also vey conscious that reinstatement orders are
not automatic—indeed employment tribunal statistics show
that they are only ordered in less than half a per cent of unfair
dismissal cases. And even where reinstatement is ordered the employer
may disregard the order, though enhanced compensation will follow.
There is no provision for the contempt of court proceedings, daily
fines, sequestration and other remedies for disobeying a court
order visited on trade unions which do not comply with a court
order, for example to call of industrial action.
The injustice of the Friction Dynamics case
if obvious. The lack of protection for the right to strike is
evident. Only by reason of a technical error on the part of the
employer did the workers succeed in their unfair dismissal claim.
But that proved virtually worthless to them. It most certainly
did not protect their jobs. The case proves that the right to
strike is not protected in the UK: it is a right that British
workers do not have. My union intends to draw this case to the
attention of the supevisory authorities of the International Covenant
on Economic, Social and Cultural Rights, the International Labour
Organisation, and the European Social Charter.
The International Committee on Economic, Social
and Cultural Rights considered, in its Report of December 1997,
in relation to Art 8(1)(d), the proposed introduction into the
UK of the eight week rule (then before Parliament in what became
the Employment Relations Act 1999):
The Committee considers that failure to incorporate
the right to strike into domestic law consititutes a breach of
Article 8 of the Covenant. The Committee considers that the common
law approach recognising only the freedom to strike, and the concept
that strike action constitutes a fundamental breach of contract
justifying dismissal, is not consistent with protection of the
right to strike. The Committee does not find satisfactory the
proposal to enable employees who go on strike to have a remedy
before a tribunal for unfair dismissal. Employees participating
in a lawful strike could not ipso facto be regarded as
having committed a breach of an employment contract . . .
The Committee recommends that the right
to strike be established in legislation, and that strike action
does not entail any more the loss of employment, and it expresses
the view that the current notion of freedom to strike, which simply
recognises the illegality of being submitted to an involuntary
servitude, is insufficient to satisfy the requirements of Article
8 of the Covenant . . .
In other words unfair dismissal protection is
not enough. The very basis for dismissing a worker for taking
industrial action is invalid under the International Covenant
because industrial action should not amount to a breach of contract.
It is indicative of the government's attitude
to its international obligations that it ignored this judgment
and persisted in introducing the eight week rule in the 1999 Act.
Since then the tragedy of the Friction Dynamics
case has been played out. Indeed, the case was referred to
in the White Paper entitled "The Review of the Employment
Relations Act 1999," published in February 2003 and which
led to the Employment Relations Bill currently before Parliament.
Notwithstanding the case, the Review did not propose any significant
amendment to the eight week rule.
This is particularly remarkable since only months
before the publication of the Review, the International Committee
on Economic, Social and Cultural Rights in its Report on the UK
reiterated once again its 1997 conclusions on the point. Even
more remarkably the Review did not even mention the fact that
twice the International Committee had unambiguously concluded
that the eight week rule was insufficient to provide the protection
guaranteed by the International Covenant, a treaty ratified by
and binding on the UK. Still less did the Review put forward any
explanation as to why the UK arrogated to itself the right to
flout its treaty obligations in this manner.
Needless to say the current Employment Relations
Bill and the government's proposed amendments to it take no heed
of the obligations of the International Covenant exposed by the
International Committee.
My union therefore finds it galling, to say
the least, to note that the Minister introducing the current Employment
Relations Bill told the House of Commons that "the Government
take their international obligations very seriously" (Standing
Committee D on the Bill, Hansard, col 114, 5 February 2004). On
the 3rd Reading Debate Mr John McDonnell MP proposed some amendments
which would have brought UK into line with Art 8(1)(d) in the
terms expressed by the International Committee (29 March 2004,
cols 1350-1353). Mr McDonnell specifically mentioned the International
Covenant as well as the International Labour Organisation and
the European Social Charter. He touched on the breaches of all
three treaties, now fully documented in the Submission of the
Institute of Employment Rights to your Committee. The Minister
(col 1355) did not see fit to respond in relation to the International
Covenant or the European Social Charter. But he did refer to the
International Labour Organisation claiming that:
The ILO gives due regard to our opinions,
and understands that it is perfectly possible for different parties
to interpret in good faith the implications of its Conventions
in different ways. As a result, the ILO's governing body has never
formally reprimanded us for failing to comply with key Conventions
87 and 98. Our standing with the ILO is as high as ever.
The minister appears to have overlooked that
the findings of the ILO Committee of Experts (on which the hon
Mrs Justice Cox, a judge of the Queen's Bench Division of the
High Court sits) on the absence of the right to strike in the
UK are unambiguous (they are set out in terms in the Institute
Submission). They are most certainly not open to interpretation.
Furthermore the International Labour Conference, which is the
supreme authority of the ILO, has approved them—repeatedly.
The suggestion that the standing of the UK remains
high in the ILO notwithstanding that almost every year since 1989
its strike and other industrial relations legislation has been
condemned by the ILO as being in breach of fundamental Conventions
87 and 98 is, with all due respect, absurd. Britain's standing
has slipped a very long way since 1949 and 1950 when the British
Foreign Secretary, Ernest Bevin (a former General Secretary of
this union), signed his name to make this country the very first
to ratify Convention 87 and then Convention 98 (which British
civil servants had been instrumental in drafting).
By the same token the decisions of the International
Committee on Economic, Social and Cultural Rights in this sphere
are equally and equally authorative as, indeed, is Art 8(1)(d)
itself.
In most European countries the constitution
provides the right to strike—and a lawful strike does not
break the contract of employment it merely suspends it. It is
therefore unlawful to sack a worker on lawful strike and the courts
will prevent it. If this were the law here there would be no need
for complex unfair dismissal rules to protect strikers.
What is fundamentally needed therefore is that
the right of every worker to take industrial action and the right
of every trade union to call or support industrial action is protected
in UK law subject only to the restrictions permitted by the international
obligations ratified by the UK.
At the very least, in order to approach compliance
with Art 8(1)(d), an amendment is required to the 1992 Act which
deletes s 238A and provides that where a worker is engaged on
industrial action called by a trade union lawfully pursuant to
s.219, such industrial action shall not under any circumstances
be held to constitute a breach of the contract of employment but
instead shall suspend the obligations under the contract of both
the employee and the employer during the currency of the industrial
action. Any dismissal of a worker taking lawful industrial action
or by reason that she had taken or intended to take industrial
action shall be void and of no effect. Such provisions would need
some elaboration to deal with consequential matters such as pay,
pensions, seniority, holidays, misconduct outside the industrial
action, redundancy, replacement labour and so on. Since industrial
action breaches the contract of employment the worker is not entitled
to be paid for time whilst taking industrial action. This would
obviously equally apply if the contract were suspended during
the action.
This proposal does not go as far as the right
to strike guaranteed by ILO Convention 87 as the Institute makes
clear. For the ILO requires that the right to strike is an individual
right not dependent on approval by a union. On the other hand
it would be a significant step forward and could be achieved by
simple amendment to the current legislation. It would avoid the
need for detailed alternative limitations on the "lawfulness"
of the workers' industrial action.
For completeness I should add, in fairness,
that the Employment Relations Bill does propose some changes to
current law on dismissal during industrial action. But the Bill
does nothing about the heart of the problem, the breach of contract
rule. It does not change the eight week provision.
The Bill will allow the period to be extended
by the length of any lock-out by the employer. The eight week
period is also to be extended where the employer has failed to
take reasonable procedural steps to settle the dispute. In addressing
that question the Bill will require the tribunal to take into
account, where there is an agreement to resolve the dispute by
mediation or arbitration, whether either party has: failed to
send a representative with authority to settle, or not co-operated
in making arrangements for the mediation or conciliation, or not
fulfilled any commitment given in the course of mediation or conciliation,
or failed to answer any reasonable question in the mediation or
conciliation. The Bill will also render inadmissible in evidence:
the notes of the mediator or conciliator, and also communications
to him except with the permission of the communicator. The mediator
or conciliator may refuse to answer whether a question was or
was not reasonable.
Quite why these amendments are thought to be
important is mystifying, although the TGWU does not, of course,
oppose them. In Friction Dynamics these issues did arise
but the tribunal found that failure to turn up at conciliation
meetings or send someone with authority, failure to co-operate
in arranging meetings and failure to fulfil commitments in relation
to conciliation were all failures by the employer to take reasonable
steps to settle the dispute and hence would have lengthened the
eight week period had it been necessary in that case to do so.
So the Bill as amended, has it been law, would have not assisted
the Friction Dynamics workers one jot.
4 May 2004
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