Memorandum submitted by the Institute
of Employment Rights
INTRODUCTION
1.1 The activities of business affect human
rights in a number of ways, but most obviously as employers. There
are a number of human rights obligations to which the United Kingdom
is a party which are designed to protect the human rights of people
while at work and to regulate the abuse of power by businesses
over their employees. We would accept that not all international
labour treaties are classified as human rights treaties; and here
we address only a few those which are so classified. We accept
also that these treaties are not normally addressed to businesses
directly; but they create norms with which businesses can be expected
to comply, or in relation to which the State has a duty to compel
compliance.
1.2 The IER is concerned that these fundamental
human rights provisions inadequately implemented in the United
Kingdom. The state of law is such that it is possible for British
business operating in this country to act lawfully in circumstances
in which these obligations are not circumvented. As will be clear
from what follows, the human rights obligations that affect businesses
as employers are vast. Space permits only a brief account of one
of these aspects of the problem, namely the right to freedom of
association. Questions relating to the role of British business
overseas are considered in a separate submission by ICTUR, which
we support.
INTERNATIONAL HUMAN
RIGHTS OBLIGATIONS
2.1 The starting point is the International
Labour Organisation which is responsible for advancing and protecting
labour standards throughout the world. There are now 182 countries
which are members of the ILO (a United Nations agency), and at
the present time there are 188 international labour conventions
(treaties binding in international law, when ratified). These
conventions include a number of Conventions (all of which have
been ratified by the United Kingdom) dealing with what are regarded
by the ILO as human rights issues, as follows
Freedom of association and the effective
recognition of the right to collective bargaining (Conventions
87 and 98);
Effective abolition of child labour (Conventions
138 and 182);
Elimination of all forms of forced or
compulsory labour (Conventions 29 and 105);
Elimination of discrimination in respect
of employment and occupation (Conventions 100 and 111).
2.2 In addition to the ILO, a second source
of human rights obligations designed to constrain the activities
of business (and others) is the Council of Europe. Here the European
Social Charter of 1961 (ratified by the United Kingdom) includes
a number of obligations addressed to States though designed to
deal with the protection of workers from abuse by business (and
other employers). They include the
The Right to Organise (article 5)'
The Right to Collective Bargaining (article
6(2));
The Right to Strike (article 6(4)).
There is now a Revised Social Charter of 1996 (signed
but not ratified by the UK), which includes a more comprehensive
list of rights and a procedure (the Collective Complaints procedure)
for their better supervision. The United Kingdom has signed but
not ratified this treaty, though we have proposed in the past
that it should do both.
2.3 The foregoing ratified treaties have
yet greater force by reason of the reliance on ILO and Social
Charter jurisprudence by the European Court of Human Rights in
recent cases on article 11 of the ECHR. This provides protection
for the right to freedom of association "including the right
to form and join trade unions for the protection of his interests".
The cases include Wilson v United Kingdom[302]
which related to the conduct of Associated
Newspapers in withholding benefits from Mr Wilson because he refused
to surrender his rights relating to collective bargaining; and
more recently the breath-taking decision of the Grand Chamber
in Demir and Baykara v Turkey, 12 November 2008, where
the Court repudiated earlier jurisprudence on article 11. Influenced
by ILO Convention 98, the European Social Charter and the national
traditions of member states of the Council of Europe, the Grand
Chamber said that
having regard to the developments in labour
law, both international and national, and to the practice of Contracting
States in such matters, the right to bargain collectively with
the employer has, in principle, become one of the essential elements
of the "right to form and to join trade unions for the protection
of [one's] interests" set forth in Article 11 of the
Convention, it being understood that States remain free to organise
their system so as, if appropriate, to grant special status to
representative trade unions.[303]
2.4 Finally, so far as business and human
rights are concerned, reference should also be made to the OECD
Guidelines on Multinational Enterprises,[304]
which have been endorsed by all 30 OECD member states, as
well as 11 other countries.[305]
The guidelines (revised in 2000) provide
Enterprises should, within the framework
of applicable law, regulations and prevailing labour relations
and employment practices:
(a) Respect the right of their employees to be
represented by trade unions and other bona fide representatives
of employees, and engage in constructive negotiations, either
individually or through employers' associations, with such representatives
with a view to reaching agreements on employment conditions.
(b) Contribute to the effective abolition of
child labour.
(c) Contribute to the elimination of all forms
of forced or compulsory labour.
(d) Not discriminate against their employees
with respect to employment or occupation on such grounds as race,
colour, sex, religion, political opinion, national extraction
or social origin, unless selectivity concerning employee characteristics
furthers established governmental policies which specifically
promote greater equality of employment opportunity or relates
to the inherent requirements of a job.
THE RIGHT
TO MEMBERSHIP
OF A
TRADE UNION
3.1 As we have thus seen, the right to membership
of a trade union is recognised by a host of human rights treaties:
ILO Conventions 87 and 98, the ECHR, article 11, and the
European Social Charter 1961, article 5. It is also protected
by British law, in the form of the Trade Union and Labour Relations
(Consolidation) Act 1992, which makes it unlawful for an employer
to refuse to employ someone because of his or her trade union
membership (widely construed by the courts). It is also unlawful
to subject someone to a detriment because of his or her membership
of a trade union or participation in trade union activities, and
unfair to dismiss someone or select someone for redundancy for
the same reasons. These provisions were strengthened by the Employment
Relations Acts 1999 and 2004, the latter amendments having
been introduced only after the European Court of Human Rights
found that the discrimination against a trade union activist by
Associated Newspapers (the publisher of the Daily Mail
and the Mail on Sunday) violated article 11 of the
ECHR.[306]
The Employment Relations Act 1999 ( s 3) makes additional
provision for the making of regulations to deal with employer
blacklists, though theses powers have never been invoked.
3.2 In addition, trade union membership
data is sensitive personal data for the purposes of the Data Protection
Act 1998, and as such cannot be processed without the consent
of the individual to whom it relates. This, however, has not been
effective. On 6 March 2009, the Information Commissioner's
Office issued a Press release in which it was alleged that 44 construction
companies had used the services of the Consulting Association
Ltd run by a man called Mr Ian Kerr.[307]
According to the ICO, this man is believed to have "run the
database for over 15 years", and it was said to have
included the details of 3,213 workers. According to the ICO.
"it uncovered evidence at Kerr's premises that named construction
firms subscribed to Kerr's system for a £3,000 annual
fee" It was stated further that "[c]ompanies could add
information to the system and pay £2.20 for details
held on individuals", and that [i]nvoices to construction
firms for up to £7,500 were seized during the raid".
According to press reports, details of workers' trade union activities
and past employment conduct were said to have been recorded on
cards, with one individual said to be a "poor timekeeper,
will cause trouble, strong TU [trade union]", while another
card referred to a member of the Union of Construction, Allied
Trades and Technicians as "Ucatt
very bad
news".[308]
3.3 The companies alleged to have been involved
are: Amec Building Ltd; Amec Construction Ltd; Amec Facilities
Ltd; Amec Industrial Division; Amec Process & Energy Ltd;
Amey Construction Ex-member; B Sunley & Sons Ex-member; Balfour
Beatty; Balfour Kilpatrick; Ballast (Wiltshire) plc Ex-member;
Bam Construction (HBC Construction); Bam Nuttall (Edmund Nuttall
Ltd); C B & I; Cleveland Bridge UK Ltd; Costain UK Ltd; Crown
House Technologies; (Carillion/Tarmac Construction); Diamond (M
& E) Services; Dudley Bower & Co Ltd Ex-member; Emcor
(Drake & Scull) Ex ref; Emcor Rail; G Wimpey Ltd Ex-member;
Haden Young; Kier Ltd; John Mowlem Ltd Ex-member; Laing O'Rourke
(Laing Ltd); Lovell Construction (UK) Ltd Ex-member; Miller Construction
Ltd Ex-member; Morgan Ashurst; Morgan Est; Morrison Construction
Group Ex-member; NG Bailey; Shepherd Engineering Services Ltd;
Sias Building Services; Sir Robert McAlpine Ltd; Skanska (Kvaerner/Trafalgar
House plc); SPIE (Matthew Hall) Ex-member; Taylor Woodrow Construction
Ltd Ex-member; Turriff Construction Ltd Ex-member; Tysons Contractors
Ex-member; Walter Llewellyn & Sons Ltd Ex-member; Whessoe
Oil & Gas Ltd; Willmott Dixon Ex-member; Vinci plc (Norwest
Holst).[309]
3.4 An enforcement notice was issued by
the ICO against Mr Kerr,[310]
who according to the BBC "faces prosecution and a £5,000 fine
if found guilty of breaching the Data Protection Act'', while
the businesses using his services "would be issued with a
legal order not to repeat the offence, and if they breached it
they too would face prosecution".[311]
That, however, does not seem an adequate response to the very
real hardship potentially suffered by the blacklisted individuals,
as reported in the national and regional press.[312]
In our view, a scheme should be introduced to compensate these
people, with a template for this purpose to be found in the Employment
Act 1980.[313]
This established a publicly funded retroactive compensation scheme
for workers who claimed that they had suffered loss as a result
of having been excluded from employment because of their non-membership
of a trade union where a union membership agreement was in force.
The individuals who appear on Mr Ian Kerr's blacklist should be
informed of that fact;[314]
they should be informed of the identity of the companies which
were supplied with their personal data (if that information is
currently available); and they should be also to entitled to make
an application under the proposed compensation scheme if they
are able to demonstrate the likelihood of having suffered loss
because of unemployment relating to their blacklisting. Legislation
which may be necessary for these purposes should also impose a
levy on the employers who used the services of Mr Kerr, to pay
for the compensation of the workers affected. This would be in
addition to any other possible legal remedies the blacklisted
workers may have against Mr Kerr, his company, and the businesses
that used Mr Kerr's services.
THE RIGHT
TO BARGAIN
COLLECTIVELY
4.1 The right to bargain collectively is
also protected by a number of the international human rights treaties
referred to above; it has also been read into article 11 of
the ECHR, with potentially important implications for domestic
law, particularly in view of the Court of Appeal's reluctance
to engage with the issue in a case involving Mirror Group Newspapers.[315]
According to the Court of Appeal, "the right to be recognised
for the purposes of collective bargaining does not fall within
the rights guaranteed by Article 11" (para 35).[316]
In the Mirror Group case, the company had recognized a
small union (BAJ) which had at most one member, in a deliberate
attempt to prevent recognition by the NUJ which was thought to
have a majority of the workers of the bargaining unit in membership.
This dispute arose in the context of the statutory recognition
procedure, which enables trade unions to make an application for
recognition to the Central Arbitration Committee with a view to
a bargaining order being imposed unless the employer agrees to
recognize the union voluntarily in the meantime. The process,
which requires the union to demonstrate majority support, is complicated
and provides employers with many opportunities to resist the union's
application. The TUC has also made complaints to the ILO that
the procedure fails to comply with Convention 98.[317]
Many businesses have resisted collective bargaining arrangements
and have usually been able to avoid extending bargaining rights
to their workers despite the procedure.[318]
These include household names such as Amazon, Asda, Black and
Decker, BSkyB, Gatwick Express, Kettles' Foods, Kwik-Fit, Ryanair,
Shoezone, and T Mobile. Others include the following.
4.2 News International, like media companies
all over the world relies heavily on human rights instruments
as the foundation of its business, including the right to freedom
of expression, which it is assiduous in promoting, through the
courts at the highest level if necessary. News International derecognized
the print and journalist unions in the 1980s in controversial
circumstances, and ceased collective bargaining with them. Since
then the company has established the News International Staff
Association which it recognized for the purposes of collective
bargaining, but which has been denied a certificate of independence
from the Certification Officer for Trade Unions and Employers'
Associations (the trade union regulator) on the ground that while
it was no longer subject to domination or control by the company,
it could not be said that it was not "liable to interference".[319]
Nevertheless, independent trade unions are not permitted to make
an application for recognition under the statutory procedure because
the Employment Relations Act 1999 prevents an application
being made by one union where another is already recognized. Although
an application for recognition can be made only by an independent
trade union, an application by such a union can be blocked by
the pre-existing recognition of a non-independent trade union.
This is despite the fact that ILO Convention 98 provides
that "workers" and employers' organisations shall enjoy
adequate protection against any acts of interference by each other
or each other's agents or members in their establishment, functioning
or administration' (article 2). It is also provided that "Machinery
appropriate to national conditions shall be established, where
necessary, for the purpose of ensuring respect for the right to
organise as defined in the preceding Articles" (article 3).
4.3 Cable and Wireless plc has a Code of
Ethics and Business Principles in which it is committed "to
providing a working environment in which employees can realise
their full potential and contribute to business success".
It also declares that the company will "respect the dignity
of the individual and support the Universal Declaration of Human
Rights and the ILO Core Conventions".[320]
The latter include the right to freedom of association, which
for this purpose includes the right to bargain collectively. In
2007 the CWU made a request for recognition which was refused.
The company contested the admissibility of the claim, it contested
the union's proposed bargaining unit before the CAC and then all
the way to the High Court), it successfully contested the union's
right to automatic recognition (despite the union having a majority
of members in the bargaining unit), it resisted a union complaint
that it had indulged in an unfair practice, for example by means
of a letter from the CEO of the company to staff during the balloting
period "which mentioned, in the first paragraph, the successful
trading year and the size of the consequent bonus payments and
then, in the second paragraph drew attention to the union recognition
ballot and urged colleagues to vote "No'', and it won the
ballot, with the union securing 77 votes (23% of those voting),
despite having 185 members (55.2%) at the start of the balloting
period.[321]
The CAC procedure took over a year to complete, the company was
represented by city solicitors (with a partner of Herbert Smith
attending one of the CAC cases) and a member of the Bar at key
stages, and it employed the services of labour consultants The
Burke Group, whose web site brazenly states that it has expertise
in "union avoidance", and "preventive labor relationsunion
free workplaces".[322]
Such organizations are sometimes referred to colloquially as "union
busters".
4.4 General Electric has an impressive code
of conduct, entitled The Spirit and the Letter,[323]
in which it commits to
Fair employment practices do more than keep
GE in compliance with applicable labor and employment laws. They
contribute to a culture of respect. GE is committed to complying
with all laws pertaining to freedom of association, privacy, collective
bargaining, immigration, working time, wages and hours, as well
as laws prohibiting forced, compulsory and child labor and employment
discrimination. Beyond legal compliance, we strive to create an
environment considerate of all employees wherever GE business
is being conducted.
General Electric is also a participant in the
UN Global Compact,[324]
as well as a TOP Olympic sponsor, and as such enjoys various legal
privileges bestowed upon it by the British State in the Olympic
and Paralympic Games Act 2006. GE companies have, however, strongly
resisted collective bargaining in the United Kingdom:
GE Caledonian is a company based in Scotland;
its website proudly carries both the GE and the Olympic logos.
The company refused an application for recognition by AEEU as
it then was, and in the process tried unsuccessfully to persuade
the CAC to provide the company with a list of the names of its
employees who had signed the union's petition requesting recognition
(a claim can only get off the ground with the support of 10% of
the workforce). If that application had succeeded, it could have
had very significant implications for the statutory procedure
as a whole, though this was denied by the company's legal representative
(Mr Martin Warren), as placing "too much reliance is placed
on unsubstantiated allegations of employer victimisation".
In that case a union activist formerly employed by the company
told the CAC that a company circular sent around the time of the
application for recognition invited employees to attend small
group meetings during which the company would present both sides
of the argument in respect of union recognition. He then explained
that these meetings had in fact been management presentations
as to why union recognition had to be resisted.[325]
Support for collective bargaining was overwhelmingly rejected
in a ballot (by 449 to 243 on a 95% turnout.[326]
In another case involving a GE company
(GE Thermometrics UK Ltd), the union (Amicus) had 47.1% membership
(49 members) in a bargaining unit of 104 workers, with
support from 55% of the workforce. The union claimed that there
had been large scale anti union activity from the company, and
"provided evidence of briefings for the workers indicating
that recognition will bring about a loss of flexibility which
the parent company would not stand for and would endanger the
future of the plant and their jobs". The union also "pointed
out that all this went on at a time when the Union had no official
access to the workforce and coupled with the one-to-one meetings
where pressure was put on workers to resign from the union and
a "25th hour" speech on the issue by the worldwide CEO
of the company placed unreasonable pressure on the workers to
vote against recognition". The latter were said to be "personal
views which the Company had sought to distance itself from",
the company also dismissing "allegations of intimidation
as a misrepresentation or misunderstanding of the company's attempt
to make its views about recognition know[n] by the workers".
On another high turnout (95%), a majority voted against the union,
with only 38 workers voting in favour of recognition[327].
THE RIGHT
TO STRIKE
5.1 The third of the human rights affecting
business considered in this submission is the right to strike.
As we pointed out in pars 2.12.3 above, it is widely
recognized as a human right in international human rights treaties,
and indeed has incongruously (in light of the current state of
English law) been recognized as such by the Court of Appeal.[328]
British law has been widely criticized by international human
rights agencies over many years for failing to comply with minimum
international standards, a matter to which we have brought to
the attention of the JCHR on an earlier occasion. These criticisms
have been levelled by the UN Committee on Economic, Social and
Cultural Rights, the ILO Committee of Experts (on which sits an
English High Court judge (Cox J)) and the ILO Freedom of Association
Committee, as well as the Social Rights Committee of the Council
of Europe.[329]
These criticisms relate to the circumstances in which trade unions
may be restrained from taking collective action and the circumstances
in which individual workers can be dismissed without a remedy
for taking such action. In recent years a number of businesses
have taken advantage of legal rules operating in the United Kingdom
to undermine the right to strike as recognized in international
instruments.
5.2 One of the most notorious cases on the
dismissal of strikers in recent years relates to the conduct of
Friction Dynamics in 2001. The details are to be found in an article
published in The Lawyer magazine by Mr Andrew Chamberlain,
a partner in the law firm Addleshaw Goddard which acted for the
company in unfair dismissal claims from August 2002 until
the company went into liquidation. According to Mr Chamberlain,
On 30 April 2001, having followed the correct
balloting and calling procedures, 86 of [Sir Bill] Morris's
members at the company commenced industrial action. On 1 May
2001, company management wrote to each striker telling thme that
"you have . . repudiated your contract of employment. The
company accepts your repudiation".[330]
Following several ACAS brokered meetings between ACAS and T&G
officials, the company wrote a further letter to each striker
on 27 June 2001, just over eight weeks after the strike started,
in which it purported to dismiss them with effect from the following
day.[331]
The story is continued by Ward LJ, according
to whom the 86 strikers "brought claims before the Employment
Tribunal in Liverpool and in December 2002 that Tribunal
found that they had been unfairly dismissed", with "the
compensation which would have become payable to the strikers by
Friction... estimated to amount to approximately £3 million".[332]
There is evidence that the company's owner, a Mr Craig Smith,
told an employee that "Friction would not be paying the strikers
following the decision by the Liverpool Employment Tribunal",
and soon thereafter the company went into voluntary liquidation.
However, the business was reformed as Dynamex Friction, buying
back the assets from the administrator, but leaving the dismissed
strikers to pursue their claim against the empty shell that was
their former employer. In subsequent unfair dismissal claims by
a number of the non striking employees one member of the Court
of Appeal (Ward LJ) referred to the employer (Mr Craig Smith)
as having engaged in "Machiavellian machinations" (para
38), questioned whether he had "cynically manipulated the
insolvency of Friction" (para 61), and accused him of being
guilty of "scheming" and "lacking in fair play"
(para 62).
5.3 Gate Gourmet is a large airline catering
company, owned by a US private equity firm called Texas Pacific,
which boasts that it is "a leading global private investment
firm with over $50 billion of capital under management.".[333]
According to Hendy and Gall,
on 10 August 2005, "667 low paid
workers, mostly middle-aged Asian women, and mostly members of
the TGWU, gathered in the works canteen top discuss the implications
of the introduction by the company that day of 130 agency
workers on lower rates of pay than themselves. Whilst the union
representatives were talking to management, the workers in the
canteen were instructed by megaphone to return to work within
three minutes or be sacked. Those who failed to return to work
(virtually all) were sacked. Those who turned up the next day
were given the choice of signing new contracts on worsened terms
or being unemployed".[334]
According to the ICFTU (now ITUC) there were
"strong suspicions that Gate Gourmet management had deliberately
provoked industrial action to give it the excuse to dismiss staff
and replace them with cheaper labour", and that a "management
plan [to] that effect came to light, but Gate Gourmet, while acknowledging
the existence of the plan, claimed that it had been drawn up under
its previous directors, and the existing directors had rejected
such a plan". It is further claimed that "the Transport
and General Workers' Union (TGWU) tried to negotiate the reinstatement
of the sacked workers with Gate Gourmet did appear ready to reinstate
the sacked workers, but the talks collapsed when it the company
said it would only do so selectively".[335]
Because the action was unofficial none of those dismissed fro
taking part in the industrial action was entitled to bring a claim
for unfair dismissal, and although 272 workers were reinstated,
another 411 given the equivalent of redundancy, while 130 workers
got nothing.
5.4 British Airways is one of the largest
airline companies in the world. A document on its website states
that the company "aspire[s] to work together as one team,
to treat each other fairly, respecting individual and collective
rights, and striving for high levels of employee motivation and
satisfaction through training, development and honest communications".[336]
In 2007, BA announced plans to offshore part of its operation
to France following the liberalisation of the rules relating to
transatlantic flights. This caused some concern on the part of
BALPA the airline pilots union, which balloted its members for
industrial action. A large majority voted in favour and the union
duly gave notice of industrial action, to be threatened by the
company's lawyers that if it proceeded with the action (which
appears to have been perfectly lawful under British lawsaid
by Tony Blair to be the most restrictive in the western world),[337]
would be unlawful under the newly created liability for collective
action created by the European Court of Justice on 11 December
2007 in its notorious Viking case.[338]
What is more, the union was also advised that the company's losses
would run to £100 million per day, a sobering prospect
which could have the effect of liquidating the union iif the action
went ahead, if the company was able to establish liability, and
if ithe company then sought to recover the losses in question.
The union took the unusual step of seeking a High Court declaration
that its proposed industrial action was lawful, but this aborted
as futile, in the light BA's vigorous defence which meant that
the exercise of collective rights (to the limited extent protected
by British law) had to be called off. BALPA has made a formal
complaint to the ILO alleging a breach of Convention 87 on
Freedom of Association and Protection of the Right to Organise.
LABOUR CONSULTANTS
AND LAWYERS
6.1 Related to the activities of companies
are the activities of the businesses who advise themthe
labour consultants and the lawyers. One such business which has
attracted some notoriety is the Burke Group. According to its
own web site
The Burke Group [TBG], established in 1982,
is the international leader in guiding management during union
organizing (recognition) and union card signing campaigns. With
1400 clients in 50 industries and 10 countries
(including the United States, E.U., Canada, Mexico and China),
we have participated in over 800 elections and employees
in 96% have either voted no, decertified or experienced petition
withdrawal. Our record of success is unequaled and our professional
labor relations consultants are the most culturally diverse and
experienced in the world.[339]
TBG's expertise is said to rest in "union
avoidance", and "preventive labor relationsunion
free workplaces". Although operating mainly in the United
States, a report for the TUC by Dr John Logan claims that TBG
has conducted "several high-profile organizing campaigns
in the UK, including ones at T-Mobile, Amazon, Virgin Atlantic,
Honeywell, GE Caledonian, Eaton Corporation, Calor Gas, Silberline
Ltd, FlyBe, Cable & Wireless, and Kettle Chips".[340]
Others include European Hydraulics Operation, where the TUC reports
a company director as saying that that "Union free activities
are high adrenal and time consuming events
. TBG was able
to assess the situation and provide confidential shopfloor
data that helped drive a successful union free strategy. I was
amazed [about]
the accuracy of the information
".[341]
The TUC report also points out that "many of TBG's anti-union
campaigns have had a devastating impact",[342]
citing the examples of
Amazon, where "the GPMU stated that
the company mounted "the most aggressive campaign it had
ever encountered", receiving "fewer votes than it had
members in a companysponsored ballot", and accusing
the company of sacking a union activist and acting unfairly in
other ways.[343]
Kettles' Foodswhere "organisers
reported that the most striking aspect of the Kettle campaign
was the aggressive use of supervisors to spearhead the anti-union
drive and the company's manipulation of the bargaining unittactics
that consultants have used in the US for decades".[344]
6.2 Other recent TBG campaigns (including
Cable & Wireless, GE Caledonian and T Mobile) are said to
have displayed a similar pattern of what has been referred to
as "aggressive antiunion behaviour".[345]
Although Cable & Wireless recognizes unions in several European
countries, including the Republic of Ireland, it resisted workers'
right to collective bargaining in the UK. Advised by TBG, it "appealed
to the courts the appropriateness of the CAC-defined bargaining
unit, bombarded employees with anti-union emails, and held one-on-one
sessions with local managers in advance of an expected representation
ballot".[346]
On this occasion, however, depending on one's point of view, the
work of TBG scaled new heights or plumbed new depths, when it
was reported in the press that:
In the most recent case involving Cable and Wireless
(which the union lost despite having 56% membership), the CAC
panel said that it "shares the union's concerns about TBG's
unfortunate track record, according to union and academic sources".
TBG complained and the Chairman of the CAC forced the panel to
reissue its decision with the offending passage replaced to read
that "TBG is alleged by the union to have an unfortunate
track record". The TBG chairman was said to be "happy"
with the committee's decision.[347]
It is not clear how widespread is such commercial
responsiveness to the legal process, or how widespread is the
willingness of the legal process to respond to these initiatives
from the commercial sector. Nevertheless, it can hardly be considered
to be good practice for quasi-judicial bodies to respond in such
a fashion. More generally, however, businesses of this kind appear
to us to raise questions similar to those businesses that make
money by trading in blacklists (though unlike blacklisting such
business activity of course is perfectly lawful). Although the
nature of the businesses are very different, it appears nevertheless
to be the case that at least one purpose of a labour consultancy
is to prevent unionization of an enterprise, and thereby deny
workers the opportunity to engage in collective bargaining. We
do not understand why it should be lawful in this country to conduct
a business (of any kind), where the successful provision of it's
services will impede the exercise of human rights, in this case
the human rights of workers, including the most vulnerable workers
in society.
6.3 So far as solicitors are concerned,
we are aware of one firm that advertises on its website that it
"help[s] employers maintain a union-free environment".
This is despite the recognition in the UN Global Compact that
"Businesses should uphold the freedom of association and
the effective recognition of the right to collective bargaining",
and despite the recognition of collective bargaining as a
human right in international treaties. It is not clear
if this applies only to Dechert LLP's US practice or whether it
applies elsewhere as well. We are, however, aware of press reports
published on the eve of the implementation of the recognition
procedure introduced by the Employment Relations Act 1999 that
one prominent British law firm was organizing a "Trade Union
Roadshow" for the benefit of business-people at which an
"unambiguous" message was being conveyed to those attending
about trade unions in the workplace. Those invited were said to
include McDonalds, Dow Chemical and Bristol Myers Squibb, though
it is not clear which if any of these companies attended. According
to a long article in the press in which two Eversheds' partners
are quoted or referred to (Mr Martin Warren and Mr Owen Warnock),
Eversheds' preparations "appear to have been carefully planned",
the firm having "made contacts with leading US consultants,
who advise management on tactics to win recognition battles using
videos and other "persuasive" techniques".[348]
The Observer also writes that Eversheds was "pushing
US methods in the UK", these methods having been described
earlier in the article as "union resistance techniques".
6.4 A number of other law firms were named
in this article, though it was based mainly on Eversheds, which
appeared to enjoy the attention, with their annual report in 2002 reproducing
a magazine article which pointed out that
Eversheds... is also the most highly regarded
law firm among HR professionals, according to a survey conducted
for Personnel Today and Employers' Law. The unions take a different
view. When Eversheds ran a "TU roadshow" last summer
advising companies on US style strategies for preserving a unionfree
workplace, the TUC was not amused.[349]
We do not suggest that this conduct by law firms
is improper or unlawful. But it does raise general questions about
the extent to which legal businesses should be involved to any
extent in activity that may have the effect (albeit inadvertently)
of undermining the human rights of third parties (such as workers).
Although such conduct is perfectly lawful and no doubt ethical
under the existing Code of Conduct for Solicitors, we would nevertheless
invite the Committee to examine whether the existing ethical boundaries
within which legal businesses may operate take adequate account
of human rights standards within which these businesses should
operate. In the present context we would invite the Committee
to consider in particular the extent to which it is appropriate
for legal businesses to provide services which may have the effectintended
or otherwiseof frustrating the exercise by workers of their
fundamental right to engage in collective bargaining, and to be
protected by a collective agreement.
NEW POWERS
FOR BUSINESS
TO UNDERMINE
HUMAN RIGHTS
7.1 We have already highlighted the recent
decision of the European Court of Justice in Case C 438/05,
ITF and FSU v Viking Line.[350]
In that case the ECJ introduced a number of treaty-based restrictions
on the right to strike, which as we have also seen greatly empowered
BA in a dispute with BALPA. A week after Viking, the ECJ
published its decision in the Laval case where it was held
that Swedish trade unions could not take collective action to
require a Latvian contractor to observe the terms of a Swedish
collective agreement in the construction sector.[351]
This decision has major implications for the right to bargain
collectively, a right which is to be found in the EU Charter of
Fundamental Rights, but which the ECJ failed to acknowledge. According
to the Court, businesses posting workers from one EU member state
to work in another cannot be required to observe the terms of
collective agreements in the host State except to the limited
extent provided for by the Posted Workers Directive. This means
that where the latter does not apply, businesses which have won
contracts in this country cannot be required to observe collective
agreements here, with an obvious risk to the integrity of these
agreements and the rights of those protected by them.
7.2 The Laval case was followed in
turn by the decision in Ruffert where it was held that
businesses posting workers (in that case to Lower Saxony from
Poland) could not be required as a condition of a public procurement
contract to comply with collective agreements save to the limited
extent provided by the PWD.[352]In
requiring contractors to pay certain minimum terms and conditions
of employment, Article 3(1) of the PWD refers to those terms laid
down in "law, regulation or administrative provision".
In some cases (notably construction), the Directive also says
that member states must require contractors to pay the minimum
rates laid down in collective agreements negotiated between trade
unions and employers. But under Article 3(8) of the Directive
this applies only where these collective agreements have been
declared universally applicable to all undertakings in the geographical
area and in the profession or industry concerned. There are no
such agreements in this country, though it was open to the British
government to require businesses posting workers here to abide
by agreements which are generally applicable to all similar undertakings
in the geographical area and in the profession or industry concerned.
Although there are almost certainly agreements that could be deemed
to fall within this provision,[353]
the power to require contractors to abide by these agreements
has not been taken by the British government, whether in relation
to the construction sector, or any other sector.
7.3 The toxic mix of the United Kingdom's
regulatory failure topped up by the ECJ decision in Viking
and Laval and their progeny was spectacularly revealed
by the bitter dispute at the East Lindsey oil refinery in late
January/early February 2009, when construction workers walked
out in protest at the use of posted workers by an Italian company
(IREM), which was a sub-contractor to a UK company, which in turn
had a broader sub-contract to a US company, which had the primary
construction contract[354].
There was an expectation that all workers on the site would be
paid in accordance with the National Agreement for the Engineering
Construction Industry (NAECI) (although they were not under a
duty to do so). There was concern on the part of the unions, however,
that the posted workers were employed on terms and conditions
that may have been well above the statutory minima for pay in
this country, but were below the terms and conditions in the NAECI
agreement. This, the unions thought, enabled the Italian contractor
to obtain a competitive advantage.[355]
The concerns over terms and conditions related specifically to
hours of work, travel allowances, and auditing of wages as well
as wage levels themselves.[356]
In an inquiry into the dispute, ACAS did less than justice to
the issues involved, finding "no evidence" that any
of the parties involved (contractors or sub-contractors) had "broken
the law in relation to the use of posted workers or entered into
unlawful recruitment practices".
7.4 This, however, was not the point, the
main question being whether the sub-contractors were complying
with nonlegally binding collective agreements. On this
latter issue, the best ACAS appeared able to offer was that it
had received assurances from the management that they will abide
by the NAECI agreement "though there are clearly some issues
of interpretation to be determined between management and the
trade unions". The most revealing passage in the report,
however, is to be found in paragraph 11 where it is stated
that "ACAS has inspected the contract documentation which
commits IREM to pay the going rate; but IREM were not yet in a
position to provide evidence to demonstrate that they were doing
this". In other words, nobody knows what rates were being
paid. ACAS confirmed, however, that by reason of Laval and
Ruffert the NAECI collective agreement could not be imposed
on the Italian contractor.[357]
Although the terms and conditions under which the posted workers
were engaged was never confirmed (though the companies in question
denied any exploitation or undercutting), the incident nevertheless
provided a glimpseon the basis of highly charged speculationof
life under the PWD, as it had been gift wrapped for employers
by the ECJ. As the ACAS report pointed out, because of the government's
failure to legislate to protect collective agreements, "the
mandatory rules governing the terms and conditions of posted workers
in the construction sector are derived only from the law or from
administrative provisions".
CONCLUSION: WHAT
NEEDS TO
BE DONE?
8.1 There is so much that needs to be done
to address the problems identified above, with initiatives required
at domestic, EU and international level. One thing which is clear,
however, is that self-regulation does not appear to work, as revealed
by those companies which have codes of conduct extolling virtues
which the companies do not appear to comply with in practice in
all of their operations. This suggests to us that companies should
be placed under stronger obligations, and that businesses over
a prescribed size which are incorporated in this country should
be required by law to have a human rights audit conducted on a
regular basis by an independent person to assess the extent to
which the business in question complies with human rights obligations
of the kind found in ILO Conventions, international human rights
treaties, and the OECD Guidelines. There should be an additional
obligation that these independent audits are distributed to shareholders
and made publicly available. Criteria would have to be developed
to establish mechanisms to ensure the independence of those conducting
the audits.
8.2 There are also, however, other steps
that need to be taken to reform British labour law to take account
of some of the issues identified above. These include
Right to Organise: Invoking the power
in the Employment Relations Act 1999, s 3, to make it an offence
to compile, hold, trade in, solicit, or use blacklists which include
details of people's trade union membership or activities. This
would be in addition to the retroactive compensation scheme to
which we refer in para 3.4 above, and to the powers available
to the Information Commissioner under the Data Protection Act
1998.
Right to Collective Bargaining: Amending
the statutory recognition procedure to remove the barrier to applications
where there is already a non independent union recognized by the
employer; remove the requirement that recognition can only be
awarded where there is majority support; and take steps to improve
the weak unfair labour practice provisions in the statutory procedure,
including a ban on the use of union busters.
Right to Strike: Amend the existing legislation
so that lawful strike action is not regarded as a breach but as
a suspension of the contract of employment; employers are required
to re-employ workers at the end of collective action; and that
collective action may be taken in line with international standards,
as developed under ILO Convention 87 and the Council of Europe's
Social Charter.
8.3 In addition to the above, we believe
that these rights ought to be safeguarded and protected from erosion
in a British Bill of Rights. We do not understand how there can
be a Bill of Rights for everyone except trade unions, and were
astonished by the absence of any significant discussion of trade
union rights in either the Government's Green Paper, or the JCHR's
report on A Bill of Rights for the UK? (which dealt with
the matter in less than six lines).[358]
The exclusion of from the latter is all the more remarkable in
view of the facts that
four of the 31 written submissions
(TULO, TUC, Unite, and Thompsons) directly addressed this question
(and warranted the courtesy of a fuller response);
trade union rights as protected by human
rights treaties are extensively violated by the UK (as the TULO
submission points out);
the South African Constitution which
the Committee studied (at taxpayers' expense) expressly includes
trade union rights in Chapter 2 entitled "Bill of Rights",
including the right to strike and collectively bargain in section
23 (as well as freedom of association in section 18 and
the right to picket in section 17;
such rights have been developed in the
constitutional jurisprudence of important common law jurisdictions,
notably in Canada under the freedom of association provisions
of the Charter of Rights and Freedoms;[359]
such rights are included in the national
constitutions of many of our partners in the European Union, including
the bulk of those countries which have most recently joined;
recent decisions of the ECJ have put
trade union rights at serious risk (as in the BALPA case in which
the union was faced with the risk damages of £100 million
a day (for exercising a human right)), in a manner that should
send shivers down the spine of anyone with a passing knowledge
of British social history.[360]
We believe that the right to organise, the right
to collective bargaining, and the right to strike should be included
in a Bill of Rights, either expressly or by means of incorporating
an appropriate treaty (such as the European Social Charter) on
the model of the Human Rights Act. We note, however, that these
rights are quickly emerging under the fascinating and progressive
jurisprudence of the European Court of Human Rights, and will
be enforceable under domestic law as a result of the HRA, leading
in turn to the possibility of a long overdue direct challenge
to the Thatcher inheritance in the courts.[361]
8.4 Finally, we believe that steps should
be taken to address the decisions of the ECJ which threaten to
undermine both the right to collective bargaining and the right
to strike, as indicated above. To this end, we recommend that
the British government should
Introduce regulations to implement the
Posted Workers' Directive (following the example of the Irish
government) so that collective agreements which are widely applied
within a sector can be registered with the Central Arbitration
Committee, with a view to becoming obligatory on all employers
in the sector in question, including in particular employers who
post workers to this country. Amending legislation should also
be introduced to counter aspects of the Viking decision
by making clear that the existing cap on trade union liability
in damages applies to actions brought under EC law, as well as
to action brought for unprotected common law liability.
Support steps proposed at EU level to
amend the EC Treaty by the introduction of a social protocol.
As proposed by the ETUC, this provides that
Nothing in the Treaties, and in particular neither
economic freedoms nor competition rules shall have priority over
fundamental social rights and social progress as defined in Article
2. In case of conflict fundamental social rights shall take precedence'.
Steps need also to be taken to amend the Posted
Workers' Directive, so that employers posting workers to this
country can be required to apply any appropriate collective agreement,
whether or not it is generally applicable within the terms of
the existing Directive. We would hope that these matters will
be taken more seriously by the Committee on this occasion than
on the occasion of its Bill of Rights inquiry, and that trade
unions can feel confident that their internationally recognized
human rights will be shown the same respect by Parliament as the
human rights of others.
May 2009
302 [2002] IRLR 568. Back
303
Application No 34503/97 , para 154. See also Enerji Yapi-Yol
v Turkey, 21 April 2009-the ECtHR re-asserted the right
to strike as inherent in article 11. Back
304
For more details, see the submission to this inquiry by ICTUR. Back
305
Reference might also be made also to the UN Global Compact which
provides by principle 3 that: "Businesses should
uphold the freedom of association and the effective recognition
of the right to collective bargaining"; and to the ILO,
Tripartite Declaration of Principles concerning Multinational
Enterprises and Social Policy (4th ed, 2006). Back
306
Wilson v United Kingdom [2002] IRLR 568. Back
307
http://www.ico.gov.uk/upload/documents/pressreleases/2009/tca_release_060309. Back
308
Guardian, 6 March 2009. Back
309
See www.ico.gov.uk/upload/documents/pressreleases/2009/tca_release_060309. Back
310
Seewww.ico.gov.uk/upload/documents/library/data_protection/notices/tca_enforcement_notice. Back
311
According to the BBC, "Balfour Beatty said it would co-operate
with the ICO investigation, and that it did not condone the use
of blacklists "in any circumstances". Other companies
either said they would conduct their own investigation, or had
"inherited" their links with the Consulting Association
from previous firms they had taken over". Back
312
The matter has also been raised in Parliament by Mr Michael Clapham
MP. Back
313
See K D Ewing and W M Rees, "Closed Shop Dismissals 1974-1980-A
Study of the Retroactive Compensation Scheme" (1983) 12 ILJ
148. Back
314
At the time of writing, the ICO is prepared to provide this information
to those workers who contact them, a helpline having been set
up for this purpose. Back
315
R (NUJ) v CAC [2005] EWCA Civ 1309. Back
316
Ibid, para 35. Following Demir and Baykara v Turkey
(para 2.3 above), however, that is no longer an accurate
statement of the law. Back
317
These complaints relate to the exclusion of small businesses,
the role of employer created staff associations, and the lack
of adequate protection against unfair practices. See for the most
recent consideration of this issue by the ILO Committee of Experts:
http://www.ilo.org/ilolex/gbe/ceacr2009.htm. Back
318
In the sense we understood to be contemplated by Convention 98,
that is to say bargaining with independent trade unions. Back
319
See K D Ewing" It's Nicer with NISA" Federation News,
Autumn 2001. Back
320
www.cw.com/corporate-social-responsibility/code-of-business-principles. Back
321
CWU v Cable &Wireless plc, CAC, TUR 1/570[2007]. Back
322
See www.tbglabor.com. Back
323
www.ge.com/files_citizenship/pdf/TheSpirit&TheLetter.pdf. Back
324
www.unglobalcompact.org/ParticipantsAndStakeholders/search. Back
325
See K D Ewing, S Moore and S Wood, Unfair Labour Practices:
Trade Union Recognition and Employer Resistance (IER, 2003),
p 23. Back
326
AEEU v GE Caledonian, CAC, TUR 1/120[2001]. Back
327
Amicus v GE Thermometrics, CAC, TUR 1/347[2004]. Back
328
London Underground Ltd v NUR [1996] ICR 170, at p 181 (Millett
LJ). Back
329
See our previous evidence to this committee: HL 193/HC 1188, 2003-04 (21st
Report). Back
330
According to Ward LJ in Dynamex Friction Ltd v Amicus [2008]
EWCA Civ 381, it was the company that repudiated the contracts:
The company's response was to repudiate the contracts of employment
with the result that 86 of the strikers were dismissed. Back
331
A Chamberlain, "The Role of the 'Eight Week Rule' in the
Friction Dynamics Dispute", The Lawyer, 3 November
2003. The employment tribunal held that the 1 May letter
"unequivocally tells the applicant that his contract of employment
is terminated. It dismissed him". Consequently the dismissal
fell within the protected period (then eight weeks now 12). Even
if it did not, (there was no appeal), the employer's conduct extended
the period to the second letter. See Employment Tribunal extended
reasons, dated 4 December 2002, Case No 6500432-02. Back
332
Dynamex Friction Ltd v Amicus [2008] EWCA Civ 381. Back
333
www.texaspacificgroup.com/about/index.html. Back
334
J Hendy and G Gall, "British Trade Union Rights Today and
the Trade Union Freedom Bill", in K D Ewing (ed), The
Right to Strike (IER, 2007), p 248. Back
335
ICFTU, Annual Survey of Violations of Trade Union Rights
(Great Britain) (2006). Back
336
British Airways, Standing Instruction No 2: The BA Way of Business
(June, 2006). Back
337
The Times, 31 March 1997. Back
338
Case 438/05, International Transport Workers' Federation and
Finnish Seamen's Union v Viking Line [2008] IRLR 143. Back
339
www.tbglabor.com. Back
340
J Logan, US Anti-Union Consultants: A Threat to the Rights
of British Workers (2008), p 16. Back
341
Ibid, p 17. Back
342
Ibid, p 16. Back
343
Ibid. See also HC 90-II, 2004-05, Appendix 10 (Evidence
by GPMU). Back
344
Ibid, p 18. Back
345
Ibid. Back
346
Ibid, p 17. Back
347
Daily Telegraph, 3 August 2008. Back
348
The Observer, 4 June 2000. Back
349
Eversheds Report 2002, p 7. The firm's website currently states
that "Recent legislation has created significant trade union
recognition rights and is now presenting a considerable challenge
for employers. Eversheds has carried out more work in this
area than any other law firm in the UK. This includes advising
employers seeking to resist recognition, assisting the negotiation
of the best possible collective agreement and representing companies
at the Central Arbitration Committee": www.eversheds.com/uk/Home/Services/Labour_law_and_trade_unions/cac_applications_union_recognition.page?.
Emphasis added. Back
350
[2008] IRLR 143. Back
351
Case 341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet
[2008] IRLR 160. Back
352
Case 346/06. Ruffert v Land Niedersachsen [2008] IRLR 467. Back
353
National Engineering Construction Committee, Protecting National
Agreements in UK Construction: A Report by AMICUS, GMB and TGWU
(October, 2005). Back
354
For a full account of the dispute, see BBC News, 29 Jan-3 Feb
2009. Back
355
See ACAS, Report of an Inquiry into the Circumstances surrounding
the Lindsey Oil Refinery Dispute (2009). See also UNITE the
Union, Unite Briefing on the current UK power industry walkouts
(2009). Back
356
See ACAS, ibid, paras 10-12. Back
357
Ibid, paras 14-22. Back
358
See HL 165, HC 150, 2007-08. Back
359
Health Bargaining etc v British Columbia, 2007 SCC
27. Back
360
Since the JCHR report, the Northern Ireland Human Rights Commission
(A Bill of Rights for Northern Ireland-Advice to the Secretary
of State for Northern Ireland, 10 December 2008), has
advised the Secretary of State for NI that "A provision should
be drafted to ensure that-workers have the right to strike and
the right to engage in collective bargaining" (p 124). Back
361
Demir and Baykara v Turkey, 12 November 2008; Enerji
Yapi-Yol v Turkey, 21 April 2009. Back
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