The Origins and Influence of ILO Convention No' 98

1
The Origins and Influence of ILO Convention No. 98

• The UK Story
• Tonia Novitz, Professor of Labour Law, University
  of Bristol

2
The UK and the ILO

• Was the ILO largely the creation of British
  civil servants and trade unionists?
• R. Lowe, Hours of Labour Negotiating
  Industrial Legislation in Britain 1919 - 1939'
  (1982) 35 Economic History Review at 260
• Note influential figures in the ILO
• - Director
• Harold Butler 1932 -1939
• - Director-General
• Wilfred Jenks 1970 - 1973

3
The UK Role in Negotiations over Convention Nos
87 and 98

• Problems with ratification of other ILO
  Conventions
• K. Ewing, Britain and the ILO, Second Edition
  (1994) Institute of Employment Rights, 20 House
  of Commons Hansard, 27 May 1921, col. 486.
• but not Nos. 87 and 98?
• Convention No. 87 described by UK government
  representative as an edifice of international
  legislation relating to freedom of association
  which will be a blessing to mankind.
• ILO, Record of Proceedings (1947) International
  Labour Conference, 30th Session, 304 per Sir
  Guildhaume Myrddin-Evans.

4
The Content of Conventions No. 87 and 98

• No. 87 on Freedom of Association and the Right to
  Organise
• Art. 2 right of workers (and employers) to
  establish and join organisations of their own
  choosing
• Art. 3 right of organisations to determine their
  own activities
• Art. 8 subject to the law of the land?
• Art. 11 state to take all necessary and
  appropriate measures

• No. 98 on the Right to Organise and Collective
  Bargaining
• Art. 1 protection against acts of anti-union
  discrimination
• Art. 2 adequate protection from acts of
  interference especially from domination of
  employers
• Art. 3 machinery appropriate to national
  conditions to be established
• Art. 4 measures to be taken to promote the full
  development and utilisation of machinery for
  voluntary negotiation with a view to the
  regulation of terms and conditions of employment
  by means of collective agreements.

5
UK Ratification and Implementation

• The UK was the first state to ratify both ILO
  Conventions No. 87 (on 27 June 1949) and No. 98
  (on 30 June 1950).
• BUT the UK never
• adopted any implementing
• legislation - taking the view
• that the UK was already in
• compliance.
• Note ratification of ILO
• Convention No. 151
• relating to the public
• sector (1978) ratified
• by the UK on 19 March 1980.

6
UK Compliance 1949 - 1979

• UK laissez-faire
• Endorsement of closed shop
• by ILO CFA see
• Case No. 96, 13th Report (1954) and
• Case No. 182, 30th Report (1958)
• One other case concerning negotiation
• machinery in banking sector resolved
• Case No. 292, 105th Report (1968)
• Exceptions to voluntarism
• Industrial Relations Act 1971
• (ss 44 50)
• Employment Protection Act 1975
• (ss11 16)
• Not subject of ILO
• comment

7
UK Non-compliance 1979 - 1997

• Denunciation of ILO Conventions (although not
  Nos 87 and 98) and few new Conventions ratified
  (none from 1987 onwards).
• Violation of ILO Convention No. 98
• Art. 1 trade union discrimination the
  problem of blacklisting (Case 1618), the
  Wilson and Palmer litigation, and the
  Ullswater amendment (Case 1730)
• Art. 2 issue of interference the ban on
  union membership at GCHQ (Case 1261)
• intimidation in the Co-Steel plant in
  Sheerness (Case 1852)
• Arts34 no machinery for recognition
  as under EPA, but creation of new
  machinery for control of public sector pay
  the Pay Review Body (Cases 1038 and 1518)

8
Compliance from 1997 onwards?

• Apparent enthusiasm for freedom of association
• Restoration of right to join a union to workers
  at GCHQ
• Support of ILO Declaration on Fundamental
  Principles and Rights at Work 1998, in which
  freedom of association and the right to
  collective bargaining are listed as fundamental
  (one of four core labour standards)
• Ratification of ILO Convention No. 111 on the
  elimination of discrimination 1958 (in 1999), ILO
  Convention No. 138 on minimum age 1973 (in 2000),
  and ILO Convention No. 181 on the worst forms of
  child labour 1999 (also 2000). These are all
  core Conventions. The UK has also ratified
  various maritime Conventions and most recently
  ILO Convention No. 187 on a promotional framework
  for occupations safety and health 2006 (in 2008).
  
• Underlying reluctance to implement fully
  Convention No. 98
• Issues have arisen concerning
• anti-union discrimination (Convn No. 98, Art.1)
• Protection from acts of interference and
• domination of employers (Convn No. 98, Art.2)
• collective bargaining machinery (Convn No. 98,
• Arts 3 and 4)

9
Violation of Art. 1 - Blacklisting

• Follow up to Case 1618
• Employment Relations Act 1999, s.3
• power for the Secretary of State to introduce
  regulations which prohibit the compilation,
  dissemination and use of trade union blacklists
• draft Regs issued for consultation, but no
  action taken
• The Consulting Association raid in February
  2009
• Government statement that would introduce
  legislation May 2009

10
Response to the European Court of Human Rights
judgment in Wilson v UK

• UK initially dealt with ILO criticism by
  enactment of Employment Relations Act 1999.
• Clear from judgment of the EtCHR in Wilson
  (2002) that this was insufficient
• Ewing (2003) 32 ILJ 1-22.
• Employment Relations Act 2004
• An insufficient response again?
• Concerns voiced by ILO Committee of Experts in
  2009

11
Interference under Art. 2Trade Union
Recognition and Membership

• Report of the Committee of Experts on the
  Application of Conventions and Recommendations
  (2009) concerned with
• - limited scope of the unfair practices
  provision under the statutory recognition
  procedure
• - use of contractual clauses in the shipping
  sector forbidding contact with a recognized trade
  union
• - the lack of provision for multiple unions
  where one trade union fails to meet the 40
  threshold
• - exclusion of small businesses employing less
  than 21 workers (special arrangements can and
  should be made)
• NOTE More general problems with access to trade
  union representation also highlighted in an
  Individual Direct Request issued under Convention
  No. 87.
• See Dukes (2008) 37 ILJ 236-267 also Bogg
  (2009) 38 ILJ forthcoming.
• A further issue considered by the ILO
  supervisory bodies thus far in relation to ILO
  Convention No. 87 is whether the UK legislative
  response to the ASLEF case in the Employment Act
  2008 constitutes undue government interference in
  trade union affairs
• See Ewing (2009) 38 ILJ 50-57.

12
Use of Public Sector Pay Review Bodies
Compliance with Art. 4?

• Prison Officers Association
• ILO CFA Case No. 2383
• The Ministry of Justice v POA 2008 ICR 702
  2008 IRLR 380 (QBD).

13
The Global Jobs Pact adopted by ILO International
Labour Conference June 2009

• Art. 14 International labour standards create a
  basis for and support rights at work and
  contribute to building a culture of social
  dialogue particularly useful in times of crisis.
  In order to prevent a downward spiral in labour
  conditions and build the recovery, it is
  especially important to recognize that
• Respect for fundamental principles and rights
  at work is critical for human dignity. It is also
  critical for recovery and development.
• Consequently, there is to be a commitment to
  increase
• (amongst other objectives)
• respect for freedom of association, the right
  to organize and the effective recognition of the
  right to collective bargaining as enabling
  mechanisms to productive social dialogue in times
  of increased social tension, in both the formal
  and informal economies.