Policy Brief: The Trade Union Act and the ILO: implications of a widening ideological chasm

By Grace Whifield

Nine days before the International Labour Organisation (ILO) met for the 2017 Governing Body meeting, the Trade Union Act came into force in the UK. It is an Act that has been repeatedly been criticised for breaching ILO conventions — in particular, Convention 87 and Convention 98, on freedom of association and the right to organise. Opponents claim that as an unprecedented regulation of union activity, it threatens participation in strike action, a right that is widely assumed to be a part of C87. A government that had welcomed these conventions as ‘an edifice of international legislation relating to freedom of association which will be a blessing to mankind’, was now displaying apparent disregard for both the meaning and the legitimacy of the C87. So, what changed?

Although C87 and C98 were promptly ratified in 1947 and 1948 by the UK, a period of consecutive Conservative governments from 1979 to 1997 meant that attempts by the ILO to bring policy in line with the conventions were strongly resisted. While New Labour lifted Thatcher’s ban on unionisation of employees at the Government Communications Headquarters, which the ILO’s Committee of Experts had argued contradicted C87, the government failed to heed criticism from the Committee of Experts that UK policy had intruded too far into the internal mechanisms of union organisations. The Fairness at Work White Paper retained regulation on time limits, picketing, secondary strike action and ballots, and emphasised that ‘real and substantial support amongst employees’ needs to be established to prevent ‘frivolous’ recognition applications from unions. The current Trade Union Act can be viewed as part of this trajectory: its proponents echo the justification of democratising industrial action by increasing regulation, but its opponents criticise the inconsistencies of ‘a government which says it loathes red tape’ but ‘has been keen to entangle unions in kilometres of it.’

Arguably, this growing hostility towards ‘red tape’ is another reason for the UK government’s apathy towards ILO conventions. The rejection of participation in external governing bodies, demonstrated by the vote to leave the EU, also appears to have shaped the relationship between the ILO and the UK government. In 2011, under the coalition government, the Department for International Development (DFID) withdrew funding indefinitely to the ILO, judging the organisation as ‘poor’ value for money. Although making progress by ratifying the Protocol of 2014 to the Forced Labour Convention in 2016, the UK has failed to ratify the Domestic Workers Convention and continues to enforce a visa regime on domestic workers that has been referred to as slavery. MP Sajid Javid (the Secretary of State for Business, Innovation and Skills at the time) reiterated this opposition towards interference in national policy in his justification of the Trade Union Act, downplaying ILO conventions as ‘essentially labour norms’ that cannot be ‘directly relied upon as conferring enforceable rights in domestic proceedings in UK courts’.

The UK government’s apparent disregard for ILO conventions, as demonstrated by the Trade Union Act, also extends to a sustained attack on tripartism in the UK. This has included the disbanding of the Manpower Services Commission in 1987, the National Economic Development Council in 1992, and — more recently — the Health and Safety Executive, which the TUC and CWU claims is ‘in tatters’, with employers now outnumbering workers on the board. As tripartism is integral to the ILO, both as a way of functioning and as a normative promotion of social dialogue, this has affected the relationship between the ILO and the UK government. A 2010 ILO document on tripartite responses to the economic crisis in Europe notes that in the UK, ‘it would seem that neither the government nor the employers want to see bipartite or tripartite procedures or institutions at national level.’ A document from the UK government detailing its decision to withdraw funding from the DFID to the ILO confirms this view, arguing that ‘[t]ripartite structure can impede progress in important areas of reform.’

The various ideological stances of governments, opposition towards interference in domestic regulations and a retreat from tripartism provide a backdrop for the UK government’s divergence from ILO recommendations. Now that the Act has come into force, the question becomes what influence the ILO can have on its effect. For trade unions, the main concern is that the new regulations will dramatically decrease strike action, but an additional concern is that the Act will enable blacklisting; picket supervisors must wear something to identify their position, a requirement that MP Chris Stephens has argued means ‘anyone who is a picket might as well wear two armbands —“union picket” on one arm and “blacklist me” on the other.’ Additionally, picket supervisors must provide personal information to the police, and remain contactable throughout the duration of the strike.

This potential increase in blacklisting of workers engaging in legally sanctioned union action could be accompanied by a rise in blacklisting of workers in unrecognised unions. Taking the two week duration of the ILO’s GB meeting as a sample size, legally sanctioned strike action in this period included three actions by Unite against Fujitsu, BMW, BA and Oxford Bus Company, action by RMT against Northern Rail, ASLEF against Southern Rail and BECTU against Duke of York Cinema. Strikes by unrecognised unions included cleaners at London School of Economics, represented by United Voices of the World (UVW) and workers at Deliveroo, represented in once instance by International Workers of the World (IWW) and in the second by Independent Workers Union of Great Britain (IWGB).

These actions by unrecognised unions could increase for two reasons. Firstly, the Trade Union Act’s stringent measures might deter legally sanctioned strike action. In light of strict regulation, Len McCluskey, the Unite General Secretary, asks ‘Can unions stay within the law any longer?’ (original italics). Secondly, the UK could see an escalation of wildcat strikes due to industry changes: workers who have ‘false’ self-employment or zero hour contracts will find sanctioned strikes through a recognised union less accessible than direct protest action. Importantly, these precarious contracts also enable anti-union action, as employers can discriminate against unionised workers by simply refusing to offer shifts to workers who protest. As such, while wildcat strikes are unaffected by the picket supervisor requirements of the Trade Union Act, participants are still vulnerable to blacklisting.

This possible impact of the Trade Union Act, both on ‘readily identifiable’ participants in legally sanctioned action and on workers resorting to unsanctioned strikes, is an aspect of the Trade Union Act that the ILO has not yet commented on. Other than a general concern that the Act contradicts C87 and C98, the Committee has focused on the occupations listed as important public services (and so subject to new voting thresholds) and the possibility for use of agency workers to replace workers on strike. Yet prevention of anti-union action is specified in C98 — ‘Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.’ Preventing actions such as blacklisting is an essential part of the right to strike. At a Governing Body side event on freedom of association and peaceful organisation this year, Maina Kiai, the UN’s Special Rapporteur on the topic, urged stakeholders to preserve the right to strike. In his report last year, he recommended that businesses ‘[r]efrain from anti-union policies and practices, and reprisals against workers who exercise their peaceful assembly and association rights.’

Anti-union discrimination is evidently still very much present on the ILO’s agenda. To put pressure on the UK to alter their domestic policy and better oppose blacklisting, the ILO would need to reconsider their previous judgement of the government’s approach. The Employment Relations Act 1999 (Blacklists) Regulations 2010 has been brought before the ILO Committee by the TUC in 2013, who argued that it did not sufficiently protect against anti-union discrimination. At the time, the Committee was satisfied with the government’s response that as there have been no problems, there is no need to enforce a ‘blanket right’ to prevent discrimination. Given the implications of the Trade Union Act and the UK’s expanding gig economy for strike activity, the ILO response to blacklisting in the UK might need to be re-evaluated.

With no indication that the government will make any more concessions to alter the Trade Union Act, stronger policy on preventing discrimination towards union members would act as a way to mitigate the impact of the Act on striking workers. As a crucial and effective voice against forms of anti-union action, the ILO could exert pressure on the government to enforce more restrictions on blacklisting. Admittedly, with the recent government ambivalence towards ILO conventions that culminated in the Trade Union Act, it seems unlikely that the likelihood that the government would respect and act on these recommendations. Yet some form of progressive legislation on discrimination of union members is vital to combat the growing environment of fear surrounding strike action. And the ILO, as a bastion of workers’ rights, should do everything within their means to ensure that UK workers can protest their working conditions without fear of retribution.

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Grace Whitfield is a postgraduate taught student in a 1+3 ESRC doctoral course at the Sheffield Methods Institute at the University of Sheffield where she is studying Social Research.

 

 

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