21. Memorandum from UNISON
I understand you 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.
In supporting that submission, UNISON would
like the Committee to take into account the difficulties experienced
by the members of our union when trying to organise what we believe
was legitimate industrial action in two specific cases—the
first against Nottingham City Council, the second involving University
College London NHS Trust.
The details of both cases are included in the
enclosed document. We very much hope that the evidence we provide
of the problems experienced by UNISON and its members will assist
your Committee in deciding whether UK law meets its international
obligations.
1. UNISON welcomes the inquiry by the Joint
Committee on Human Rights into the failure of the United Kingdom
to comply with the International Covenant on Economic, Social
and Cultural Rights. UNISON believes that the government should
comply with international obligations (especially in this case
where they have been voluntarily entered into). It is also UNISON
policy that trade union rights in this country should comply with
minimum international obligations. These obligations are set out
clearly in the ICESCR, ILO Conventions and the Council of Europe's
Social Charter of 1961. It is well known that the United Kingdom
is in breach not only of the ICESCR, but also ILO Conventions
87 and 98, and the Social Charter of 1961.
2. UNISON understands that the Joint Committee
seeks views on the following questions:
— Is there a case for incorporation
of guarantees of economic social and cultural rights in UK law?
Can the Covenant rights be adequately protected without incorporation?
— Can you provide evidence of areas
where you believe the lack of such guarantees leads to lesser
or unsatisfactory protection of economic social and cultural rights,
such as to breach the UK's obligations under the Covenant?
In dealing with these two questions in this
submission, we confine our attention specifically to the right
to strike. As the Joint Committee pointed out in its press release,
the CESCR recommends that the right to strike be incorporated
in legislation and that strike action should no longer entail
the loss of employment, in accordance with Article 8.1 (d) ICESCR.
For details about the scale of Britain's failure to comply with
international obligations relating to the right to strike, UNISON
would draw the attention of the Joint Committee to the submission
by the Institute of Employment Rights which we support.
INCORPORATION OF
GUARANTEES OF
ECONOMIC SOCIAL
AND CULTURAL
RIGHTS IN
BRITISH LAW
3. UNISON believes that the right to strike
should be formally recognised and enforced in British law. At
the present time the taking of industrial action is a breach of
contract by those taking part. The organising of industrial action
is also tortious on the ground that the organisers are interfering
with the trade, business or employment by unlawful means. This
is the case even though the industrial action may have been provoked
by the unlawful conduct of the employer (such as the unilateral
variation of terms and conditions of employment) for which the
existing law provides no effective redress. A trade union can
be restrained by injunction (or interdict) from organising unlawful
industrial action, and can be required to pay damages as well
as the legal costs arising out of any litigation for exercising
what is recognised by international law and acknowledged by the
Court of Appeal as a "fundamental human right": London
Underground Ltd v NUR [1996] ICR 170, at p 181.
4. It is true that there is protection against
dismissal for those taking part in a strike. But this applies
only in the case of a lawful strike, a term which is narrowly
defined in a way which is in breach of UN, ILO and Council of
Europe of standards. In any event the protection has unequivocal
protection for only eight weeks, again in apparent breach of international
standards. It is also true that there is a statutory immunity
from tortious liability for those who organise industrial action,
and that such immunity has existed since 1906. But there are two
problems with the immunity approach as a way of giving legal protection
to industrial action. The first is that it can provide immunity
only from known liabilities. This means that as new torts are
invented by the courts, there is no protection, even though the
union may have satisfied balloting and other obligations imposed
by legislation. The second problem is that the immunity is too
narrow and safeguards the exercise of a fundamental human right
only in very limited circumstances. Thus in order to be protected
by immunity, the action
— Must be taken in contemplation or
furtherance of a trade dispute.
— Must satisfy detailed balloting and
notice obligations.
— Must not constitute secondary or
solidarity action.
EVIDENCE OF
AREAS WHERE
THE LACK
OF PROPER
GUARANTEES LEADS
TO UNSATISFACTORY
PROTECTION OF
ECONOMIC SOCIAL
AND CULTURAL
RIGHTS, SUCH
AS TO
BREACH THE
UK'S OBLIGATIONS
UNDER THE
COVENANT?
5. The failure to comply with international
legal obligations directly affects UNISON and the human rights
of our members. An example of this earlier this year is provided
by an unreported case in which Nottingham City Council obtained
an interim injunction in the High Court against UNISON. The injunction
was later overturned on our application—on narrow grounds.
One of the reasons the injunction was first granted was that UNISON
was allegedly involved in breaching the employer's statutory duty.
Inducing breach of statutory duty is a tort rarely referred to,
and there is no immunity from liability in relation to this tort
in the Trade Union and Labour Relations (Consolidation) Act 1992,
s 219. This is an extremely important matter and UNISON is concerned
that this cause of action could be deployed against us and other
public sector unions in the future with devastating effect. An
effective and clearly defined right to strike would protect trade
unions from litigation of this kind.
6. Another example of how the failure to
comply with international legal obligations is provided by University
College London NHS Trust v UNISON [1999] ICR 204 (CA). Here
UNISON was restrained by injunction from taking industrial action
because it did not fall within the current narrow definition of
a trade dispute in the Trade Union and Labour Relations (Consolidation)
Act 1992, s 244. UNISON challenged this restriction on our human
rights by making a complaint about a violation of article 11 of
the ECHR. The application was ruled inadmissible. However, the
fact that industrial action could not be taken in the circumstances
of the UCL NHS Trust case was a breach of other international
human treaties which—unlike the ECHR—provide clear
and specific protection for the right to strike. Thus in an unusual
move, the Social Rights Committee of the Council of Europe has
specifically referred to this case in its criticisms of the United
Kingdom for its breach of article 6(4) of the Social Charter (which
expressly protects the right to strike):
The Committee considers that the right to strike
or take other industrial action in the United Kingdom is subject
to serious limitation. The notion of a trade dispute, as defined
in Section 244 of the Trade Union and Labour Relations (Consolidation)
Act, is limited to disputes between workers and their employer.
Accordingly, secondary action is not lawful, effectively preventing
a union from taking action against the de facto employer if this
is not the immediate employer. The Committee notes that the courts
have interpreted the law so as to also exclude action concerning
a future employer and future terms and conditions of employment,
in the context of a transfer of part of a business (University
College London NHS Trust v UNISON [1999] ICR 204). The scope
for workers to defend their interests through lawful collective
action is thus excessively circumscribed in the United Kingdom.
(Emphasis added)
(Council of Europe, Social Rights Committee,
Conclusions XVI—1, p 18)
CONCLUSION
7. UNISON considers it to be wholly unacceptable
that British law on the right to strike should continue to be
governed by common law liabilities with their origins in Victorian
times. A modern legal system—informed by a modern human
rights culture—would ensure that fundamental social rights
were effectively protected in accordance with minimum standards
established by international human rights treaties. It should
not be possible for an employer to obtain an injunction (which
the union has to discharge) on the specious ground that industrial
action constitutes a tort which no one had ever thought about.
Consequently it is UNISON's view that there should be a right
to strike as required by the ICESCR. This should mean that any
dismissal of a worker for exercising this right should be void,
and that trade unions should not be liable in tort or any other
ground for organising such action.
8. In terms of the content of any such right,
UNISON believes that this should meet the minimum standards established
by the ICESCR, the ILO, and the Council of Europe. We are at a
loss to understand why there should be any difficulty about this
and why Britain's shameful record of violation of fundamental
social rights should not be urgently addressed. The current position
is all the more extraordinary in light of the fact that the United
Kingdom continues to subscribe to these obligations. We understand
that the British government has signed the Council of Europe's
Revised Social Charter of 1996, as well as the ILO Declaration
on Fundamental Principles and Rights at Work of 1998. Both of
these instruments protect the right to strike, either directly
or indirectly. In committing itself to these instruments, the
government surely has some commitment to their contents. It seems
hardly credible that the government would sign these instruments
(a) in ignorance of their provisions, or (b) indifferent to its
obligation to ensure that domestic law complied with their terms.
10 May 2004
| 
