Posted: 24/04/2023
In January 2023, Gilbert Houngbo, director general of the International Labour Organisation (ILO), publicly denied that the ILO supported UK government plans to enforce ‘minimum service levels’ during public sector strikes. The BBC reported that Mr Houngbo also confirmed British trade unions were able to file a complaint with the ILO to ascertain whether the UK was breaching international worker rights laws. The ILO "has been in discussions with the trade unions" over this, he said.
So what complaints could the TUC file, on behalf of UK trade unions, with the ILO, in order to challenge the UK’s current and proposed strike laws?
In August 2022, the TUC published its complaint to the ILO’s Committee of Experts, arguing that the UK government is in breach of its international obligations as a result of its ratification of Conventions 87 and 98. In summary, the TUC is asserting the UK government has:
Further, the TUC is asserting that the UK government has taken additional steps to infringe rights due to UK trade unions by:
In September 2022, the UK government was asked by the ILO to provide its comments to the Committee of Experts.
The Freedom of Association and Protection of the Right to Organise Convention 1948 (Convention 87) and the Right to Organise and Collective Bargaining Convention 1949 (Convention 98) are both fundamental ILO conventions which the UK has ratified into national law. These fundamental conventions lay at the heart of any challenge by the TUC to the UK strike laws.
ILO supervises ratified ILO conventions
ILO conventions are supported by a regular supervisory system, that helps to ensure that countries implement the conventions that they ratify both in national law and practice. The ILO regularly examines the application of conventions in member states.
Having ratified both Conventions 87 and 98, the UK government is required to report regularly on the measures it has taken for its implementation. Every three years, the UK government has to provide reports detailing the steps it has taken in law and practice to apply Conventions 87 and 98.
For the unaware, the role of the ILO’s Committee of Experts is to provide an impartial and non-binding technical evaluation of the application of international labour standards in ILO member states.
When examining the application of Convention 87 in the UK, the Committee of Experts can make two kinds of comments: observations and direct requests. Observations contain comments on fundamental questions raised by the application of Convention 87 in the UK.
These observations are published in the annual report of the Committee of Experts. Direct requests relate to more technical questions or requests for further information. They are not published in the report but are communicated directly to the government.
In its 2023 annual report, the Committee of Experts has issued both observations to the UK government concerning its application of Convention 87, and a direct request.
In so doing, the Committee of Experts states, ‘The Committee notes the observations made by the Trades Union Confederation (TUC), received on 31 August 2022,’ and also ‘The Committee requests the Government to provide its comments on the TUC observations…’
Consequently, this request is likely to become a symbolic case for the international trade union movement to support the TUC’s efforts to challenge the UK’s national strike laws. As a rebuttal of the ILO’s controversial ‘right to strike’, it is also a rebuttal of other national laws on the right to strike.
This year’s annual report of the Committee of Experts will be submitted to the International Labour Conference (ILC) in June, where it will be examined by the CAS. The CAS is made up of government, employer organisations, and trade union delegates. It examines the report in a tripartite setting and its social partners (in practice, the CAS vice-chairpersons for the employer organisations and trade union) select, from a long list of circa 40 provisional cases, typically 20 or more observations for tripartite discussion during the ILC.
Cases on the so called ‘short list’ are considered the most serious breaches of ILO convention obligations and/or of particular legal/political importance to the employer organisations and trade unions. Consequently, national governments will often lobby very hard within the ILO to seek to avoid their case being examined in public by the CAS.
Accordingly, there is a golden opportunity for the TUC to lobby, most likely with the afore-mentioned support of the wider international trade union movement, to protect the ‘right to strike’, and to request that the Committee of Experts’ observations regarding the UK’s application of Convention 87 be discussed publicly in the CAS.
If this occurs in June 2023, then the UK government will be invited to respond publicly before the Conference Committee and to provide information in response to the TUC’s complaints. In many cases the Conference Committee then draws up conclusions recommending that governments take specific steps to remedy a problem or, if the problem is persistent, to invite ILO missions or technical assistance.
Situations of special concern are highlighted in special paragraphs of the CAS’ General Report. Self-evidently the conclusions in this UK case could be politically problematic given that the TUC is clearly complaining about the cumulative impact of the UK government’s strike-related legislation over many years.
Moreover, in the UK case, the timing of an examination in the CAS in June 2023 is significant, as it could have national legal and political implications given:
Further, if the Bill is amended, which is likely if Lord John Hendy KC’s long held position is reflected in the amendments, it is reprinted with all the agreed amendments. At the end of committee stage, the Bill moves to report stage for further scrutiny, followed by a third reading, which may lead to a stand-off between the House of Commons, where the UK government has a sizeable majority, against the unelected House of Lords.
Whilst the House of Lords can hold up a Bill if it disagrees with it, ultimately the elected House of Commons can reintroduce it in the following session and pass the Bill without the Lords’ consent. It is for this reason that so many commentators are expecting the Bill to become law.
Labour party ambitions
It is also important to note that we are expecting a general election in the UK in the autumn of 2024, where the future of work is likely to be a key differentiator between the two main political parties. Labour has already published an employment rights green paper, which commits Labour to update trade union legislation by:
This all points to the TUC being very keen to have the UK case considered in the CAS in June, especially when comparing the items about which the TUC has complained to the ILO’s Committee of Experts and Labour’s green paper commitments.
Unlike the regular ILO system of supervision described above, there are three special procedures that are also available to the TUC to complain to the ILO regarding the UK government’s national strike laws.
Representations
Articles 24 and 25 of the ILO constitution provide that the TUC has the right to present to the ILO governing body a representation against the UK government if, in its view, the UK ‘has failed to secure in any respect the effective observance within its jurisdiction of any convention to which it is a party’. A three-member tripartite committee of the governing body may be set up to examine such a representation and the government’s response in the context of Convention 87.
The report that the committee submits to the governing body will set out the legal and practical aspects of the case, examine the information submitted, and conclude with recommendations to the UK government. Should the UK government not take the necessary measures, the ILO’s Committee of Experts may then be requested to follow up the case or, in the most serious instances, the case may lead to a complaint, in which case the governing body may decide to establish a Commission of Inquiry.
It is worth noting, however, that representations concerning the application of Conventions 87 and 98 are usually referred for examination to the Committee on Freedom of Association, in accordance with the procedure for the examination of representations.
Complaints
Articles 26 to 34 of the ILO constitution provide that the TUC may file a complaint against the UK government. Upon receipt of a complaint, the ILO’s governing body may establish a Commission of Inquiry. This consists of three independent members, and is responsible for carrying out a full investigation of the complaint, ascertaining all the facts of the case and making recommendations on measures to be taken to address the problems raised. A Commission of Inquiry is the ILO’s highest-level investigative procedure and is generally set up when a member state is accused of committing persistent violations.
It follows that it is unlikely that a complaint will be issued by the TUC until it has had its concerns heard by the CAS.
Separate complaint to the Committee on Freedom of Association (CFA)
Freedom of association is a human right that is at the core of ILO values. It is enshrined in the ILO Constitution, the ILO Declaration of Philadelphia and the ILO Declaration on Fundamental Principles and Rights at Work; and it is proclaimed in the Universal Declaration of Human Rights.
The CFA is an ILO governing body committee, which was established with the purpose of examining complaints of violations of freedom of association, whether or not the country concerned had ratified Conventions 87 and 98. Cases are not limited to Convention 87 or 98 breaches like in the CAS, and it is therefore open to the TUC to pursue a separate and wider complaint before the CFA.
If the CFA finds that there has been a violation of freedom of association, it issues a report through the governing body and makes recommendations on how the situation could be remedied. Governments are subsequently requested to report on the implementation of its recommendations.
As the UK has ratified Conventions 87 and 98, then any legislative aspects of the case may be referred to the Committee of Experts.
Given that the Committee of Experts has already made observations concerning the TUC’s August 2022 complaints, it is therefore questionable what advantage a separate complaint to the CFA would bring for the TUC. The higher profile CAS process in June this year is more likely to yield legal and political results.
Whilst it is questionable that the TUC will invest significant time and energy in the ILO’s special procedures, it would be of considerable surprise if the TUC is not already upping the stakes to have the UK case heard in the CAS this June to support its current legal and political efforts to challenge the UK’s strike laws. Logic suggests that doing so will also seek to lay the ground for Labour’s green paper commitments – to protect and strengthen trade unions – becoming future UK employment law, and could prove useful given the aforementioned judicial review and controversial Strikes (Minimum Services) Bill.
Anyone predicting that the current level of industrial unrest in the UK will soon reduce is likely to be disappointed, as the aforementioned CAS case will not be heard until June 2023. As a result, in the meantime it is clearly likely the TUC will seek to maintain the legal, social and political pressure in the UK, and industrial disputes are likely to remain commonplace for the short to medium term, at least.
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