United Kingdom

On 15 June 2021, the UK and Australian governments announced they had reached a free trade agreement (FTA) “in principle”. It had been negotiated behind closed doors for nearly a year. Trade unions were not consulted about the text of the agreement and its impact on workers. There were fears that the terms of the FTA would undermine workers’ rights and further sideline trade unions.
The unions of both countries had made clear their position at the start of the process, with the UK’s Trades Union Congress (TUC) and the Australian Council of Trade Unions (ACTU) releasing a joint statement in September 2020 outlining the expectations of workers in both countries.
Information available about the negotiations, however, indicated that the FTA failed to meet the goals set out by the unions at the start of negotiations.
The ACTU and TUC called on the Australian and UK governments to immediately engage with trade unions to address their concerns, including, notably, fears that the UK-Australia trade deal may include investor-state dispute settlement (ISDS), which gives multinational corporations special rights to sue governments over actions that threaten their profits; such actions could include renationalising public services or introducing new workers’ rights. The two national union centres also fear that the agreement may not contain measures to adequately enforce and protect labour rights.
TUC General Secretary Frances O’Grady stated: “Trade deals can have a significant impact on workers’ jobs and rights, which is why it’s so important unions are involved in discussions”, adding that “this looks like it will be yet another UK trade deal with no enforceable labour standards, which could lead to a race to the bottom on workers’ rights. That is unacceptable.”

According to the Fire Brigades Union (FBU), there are many examples of management refusing trade union leave and being obstructive in allowing workers to organise. The various forms of anti-trade union legislation passed over the last 40 years has made in increasingly difficult to organise and take action against both a hostile government and fire service management. FBU officials have also been singled out for less favourable treatment – being passed over for promotion.

According to the Trades Union Congress, unions continue to face wider restrictions on the right to strike, including a ban on all forms of secondary action and political strikes, complex notice and balloting rules and limited protections for striking workers.

Following the Trade Union Act 2016, unions have been required to give the employer 14 days’ notice, up from seven days, before industrial action can start. As a result, unions are required to provide at least one week’s notice to the employer that a ballot is taking place, allow at least two weeks for the ballot and then announce the ballot result before giving a further two weeks’ notice. This means at least five weeks will pass between the start of the balloting process and any industrial action.

Workers participating in lawful industrial action will often find that their pay is docked. Some employers deduct a full day’s pay even if action is just for part of the day. For example, staff at the University of Liverpool who went on strike over pay and pensions in December 2019 were asked by the University to work for free and catch up on missed work or face penalties, despite already having their pay deducted over the eight-day industrial action.

UK law also provides very limited protection from dismissal for striking workers. Employees are protected from dismissal during a 12-week protected period after which employers can sack the entire workforce. Dismissal protections are also limited to employees, meaning those working in insecure work (zero-hours contracts, agency workers and those in the gig economy) are not protected if they take strike action.

The Trades Union Congress indicated in its latest report that the range of issues covered by collective bargaining in many workplaces has become more limited over the years. Often it just covers pay, hours and holidays, and in some workplaces, employers will only negotiate on pay.

Furthermore, the TUC denounces employers’ attempts at circumventing collective bargaining by negotiating directly with workers. The action of employers in putting an offer directly to workers, going over the head of the recognised trade union, has been encountered in the case of Kostal, a

company which had been negotiating with a recognised trade union on pay and conditions. It then decided to contact the employees directly, making two offers on two separate occasions. The Court of Appeal found in favour of the employers on the grounds that the actions were not intended to permanently subvert collective bargaining structures (Kostal UK Ltd v Dunkley). TUC intends to appeal to the Supreme Court.

Such practices, combined with the 40 per cent threshold for recognition as a representative bargaining unit, mean it is often difficult for unions to secure recognition in workplaces where employers are anti-union. TUC recall that there is no national level bargaining in the UK and sector level bargaining is rare outside of the public sector.

The Trades Union Congress highlighted in its most recent report the serious constraints posed by the Trade Union Act adopted in 2016. Restrictions on trade unions activities, including on the ability of unions to organise lawful industrial action, remain in place. These include a 50 per cent turnout requirement for all strike ballots and the requirement for a 40 per cent “yes” vote in ballots in important public services. Despite criticism from the ILO Committee of Experts, the 40 per cent yes vote requirement continues to apply to strike ballots in the education and transport sectors.

In 2016, the ILO Committee on the Application of Standards further expressed concern at new powers being given to the UK Certification Officer (CO), which regulates unions in the UK. Under the new powers, introduced by the Trade Union Act 2016, the CO will have the power to initiate an investigation into the internal affairs of independent trade unions (including elections for general secretaries, ballots for political funds, and political funding) even though no union member has made a complaint. There is concern that the CO could initiate such investigations at the behest of employers and anti-union groups. Although the new powers are not yet in force, it is possible they will come into effect during the course of 2020.

There are restrictions on the ability of trade unions in the prison sector to take industrial action. Prison officers can join trade unions. But they are banned by legislation from taking industrial action, even though the POA (Prison Officers Association) cannot collectively bargain for better pay and conditions for its members. Instead, pay and conditions are set by a pay review body.

The UK government has proposed legislation to introduce minimum service agreements to the transport sector. These will require unions to agree a minimum level of service to be provided during a strike. This is a clear attack on the right to strike.

It is not yet clear as to whether this will apply only to trains, only to transport that runs on rails, to transport more generally or to sectors beyond transport. What defines ‘minimum services’ will be decided during the course of the Bill.

It is already standard practice for trade unions in the UK to negotiate emergency (or life-and-limb) cover during times of strike action, for example to cover major incidents during the fire brigade strike or provide services such as residential homes for children and the elderly, emergency duty social work and emergency meals-on-wheels. This is negotiated at national or branch level.

The basic right to strike is vital to defend workers’ rights when the employer won’t compromise. This proposed law will make it hard for ordinary transport workers to protect their jobs, pay and working conditions.

The Trades Union Congress (TUC) points to the risks to public safety, for example due to station or train overcrowding if a bare-bones service is put in place.

The National Union of Teachers (NUT) reported that the statutory system for the determination of pay and conditions for schoolteachers in England, in place since 1991, does not meet the requirements of ILO Convention 98. This system grants statutory powers to the government minister responsible for education to determine the pay and conditions of schoolteachers in England following consideration of recommendations from an independent review body. Teacher organisations and employer organisations are permitted to make representations to that review body but are not permitted to negotiate collectively and reach agreement themselves on those matters of pay, professional duties and working time. Those employers of teachers that are local government bodies are not permitted to depart from the arrangements determined by the government. (Employers of teachers in “academies” – state-funded schools maintained by non-local government bodies, first established in 2003 – may, however, depart from those arrangements and determine their own arrangements.)

The Trades Union Congress (TUC) recalled that prison officers are still prohibited from taking lawful strike action, pursuant to the Criminal Justice and Public Order Act 1994, and that despite assurances given by the government in 2012 to the ILO Committee on Freedom of Association (CFA), the matter remains unresolved.
The TUC highlights the government’s failure to implement the recommendations of the Prison Service Pay Review Body in 2018, ostensibly in order to maintain a consistent pay policy across the public sector. The government’s decision was communicated to the chair of the PSPRB, who replied on 28 July 2018 by pointing out that at the time of the CFA complaint, the “government gave a clear and unequivocal undertaking to the ILO that it would accept the recommendations of the PSPRB, in its role as a compensatory mechanism for the loss of the right to strike, and that they would only be departed from in exceptional circumstances”. That pledge has never been rescinded, and successive Governments have abided by it. That appears not now to be the case, despite the well-established principle that where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented.

Government interference in collective bargaining is a growing concern for a number of trade unions. A recent example of this is a letter from the secretary of state for transport dated 14 August 2018 addressed to unions in the railway sector – ASLEF, RMT, TSSA and UNITE – informing them of government concerns about ticket prices. In order to contain the escalating ticket prices, the government insisted that “costs in the industry rise no faster than ticket prices”. With this in mind, the secretary of state decided that there would be a move away from the use of the retail price index (RPI) in the way the industry operates to the consumer price index (CPI). So far as pay is concerned, this means that “pay agreements” must now also be based on CPI rather than RPI when basing pay deals on inflation. Moreover, while any “above inflation” increases may be negotiated, these should be linked to “productivity or similar improvements that create the financial headroom for such deals”.
The Trades Union Congress believes that interventions of this kind are an unwarranted interference in the collective bargaining process. The content of collective bargaining and the substance of collective agreements is a matter for trade unions and employers.

Since the adoption of the Trade Union Act 2016, the exercise of the right to strike has been severely curtailed, in violation of ILO Convention 87. For example, an independent scrutineer observed the ballot organised by the Public and Commercial Services Union (PSC) on 23 July 2018. The ballot revealed that 142,673 members were entitled to vote; 59,285 did vote; and that 50,726 voted in favour of industrial action. But although this represented support in the ballot of 85.6 per cent, the ballot was invalid because only 41.6 per cent of those eligible to vote did so. The result is that 59,254 workers have been denied the right to strike on important matters relating to working conditions. As the union pointed out: “PCS members have delivered the highest yes vote and turnout in the history of the union. But undemocratic, anti-union strike laws, implemented last year, will prevent strike action.”

The Trades Union Congress (TUC – UK) reported that in recent years, following the financial crisis and in line with austerity measures, the UK government imposed a pay cap on the public sector workforce – which in many parts of the public sector was not a subject of consultation. In recent years, the range of issues covered by collective bargaining has become limited to pay, hours and holidays and in some workplaces, employers will only negotiate on pay. Moreover, due to the inadequacies of UK labour law and industrial relations system unions often face significantly difficulties securing recognition with employers for the purposes of collective bargaining. There is no national level bargaining in the UK and sector level bargaining is rare outside of the public sector.

Under the Trade Union Act 2016, the UK Certification Officer, who regulates unions in the UK, will have the power to initiate an investigation into the internal affairs of independent trade unions (including elections for general secretaries, ballots for political funds, and political funding) even though no union member has made a complaint. As it is likely these powers will come into effect later in 2018, there is serious concern that the Certification Officer could initiate such investigations at the behest of employers and anti-union groups.

In Smith v Carillion (JM) Limited, the UK Employment Appeal Tribunal decided that an agency worker was unable to bring a claim for detrimental treatment by reason of his trade union or health and safety activities under the UK blacklisting regulations because there was no implied contract between a blacklisted agency worker and the end-user of his services. This decision means that agency workers who may be vulnerable in the future to blacklisting due to the union membership and activities.

Prison officers can join trade unions. But they are banned by legislation from taking industrial action, even though the POA (Prison Officers Association) cannot collective bargain for better pay and conditions for its members. Instead pay and conditions are set by a pay review body. In 2014, the ILO Committee of Experts criticised the UK government for failing to put in place compensatory mechanisms to compensate workers for the ban on the right to strike. No action has been taken by the government following this decision. Then in July 2017, the UK government for the first time applied in the UK courts for a permanent injunction preventing the POA from ever taking industrial action, a decision which is being legally appealed by the union.

The major restrictions on trade unions activities, including on the ability for unions organise lawful industrial action, introduced by the Trade Union Act 2016 remain in place. This includes the 50 per cent turnout requirement for all strike ballots and the requirement for a 40 per cent yes vote in ballots in important public services. Despite criticism from the ILO Committee of Experts, the 40 per cent yes vote requirement continues to apply to strike ballots in the education and transport sectors. Unions also continue to face wider restrictions on the right to strike in the UK, including a ban on all forms of secondary action and political strikes, complex notice and balloting rules and limited protections for striking workers.
Furthermore, following the Trade Union Act 2016, unions have been required to give the employer 14 days’ notice, (it was previously seven days), before industrial action can start. As a result, unions are required to provide at least one week’s notice to the employer that a ballot is taking place, allow at least two weeks for the ballot and then announce the ballot result before giving a further two weeks’ notice. This means at least five weeks will pass between the start of the balloting process and any industrial action.
Moreover, it is not uncommon for employers to deduct a full day’s pay even though individuals only take action for part of the day. UK law also provides very limited protection from dismissal for striking workers. Employees are protected from dismissal during a 12 week protected period after which employers can sack the entire workforce. Dismissal protections are also limited to employees, meaning those working in insecure work (zero hours contracts, agency workers and those in the gig economy) are not protected if they take strike action.

There has been a longstanding scandal in the UK involving the blacklisting of trade unionists, in particular in the construction industry. This led to multiple litigation in the domestic courts, two applications to the European Court of Human Rights, a detailed investigation by a House of Commons Select Committee, and the introduction of new legislation in the form of the Blacklists Regulations, 2010.
However, the Trades Union Congress believe that the legislation does not provide sufficient protection against blacklisting in the future. Since the most recent litigation in which a number of construction companies admitted their role in the blacklist (and settled a sum in the region of £75 million by way of compensation in favour of blacklisted workers), even more disturbing information has come to light.
This relates to police involvement in the surveillance of trade unionists, a named police whistleblower alleging in 2015 at a meeting in the House of Commons that he had been an undercover officer spying on four trade unions (NUT, FBU, UNISON, and CWU) on behalf of a special covert police unit, and that another undercover officer named by him was responsible for spying on another union (UCATT). It was further alleged that information obtained from these sources ended up on the blacklist.
On 23 March 2018, it was reported by the BBC that an internal investigation by the Metropolitan Police had established “on the balance of probabilities”, that “the allegation that the police or Special Branches supplied information [about trade unionists to the employers’ blacklist] is proven”.
The TUC and the ITUC are obviously deeply concerned about these allegations, which strike at the very heart of freedom of association in a modern liberal democracy. Neither trade unions nor trade union members should be the subject of surveillance by the State.

The Trade Union Bill is before the Parliament adding further requirements to the labyrinthine procedure that unionists must follow before taking a strike action. Its key provisions include the following: new ballot thresholds – a minimum 50 per cent turnout in all strikes and, in important public services, a requirement that at least 40 per cent of the members eligible to vote are in favour of the strike (clauses 2-3); detailed notice requirements about strikes (clause 4); a shorter period during which strikes can be held (clause 8); additional constraints on picketing, requiring a supervisor at every picket (clause 9); new rules restricting members’ contribution to union political funds (clauses 10 and 11); restrictions on unions’ facility time – the time union officials spend on union duties – in the public sector (clauses 12 and 13); a prohibition on the deduction of union subscriptions direct from wages, known as check-off, in the public sector (clause 14) and linked changes, in separate regulations, allowing employers to employ agency workers to replace striking workers. Despite harsh opposition from trade unions and different sides of the political arena (from Conservative backbenchers to Labour Party MPs) and critics from the ILO Committee of Experts, only minor amendments have been made to the Bill.

A decades-long controversy between construction workers and the firms that blacklisted them was brought in front of the High Court. Eight major construction firms have been facing legal action for compensation from 700 people represented by GMB, Ucatt and Unite unions. It was only last year that the firms admitted use of blacklisting tactics although the use of blacklisting in the construction industry was uncovered in 2009. It was at that time that offices of The Consulting Association (TCA) were raided by the Information Commissioner’s officers. They retrieved personal files on over 3,000 workers, activists and trade unionists blacklisted because considered “troublemakers”. The target was often directed against those active in trade unions or political campaigns, or those who raised health and safety issues on site.
The eight leading construction firms had issued an apology at the High Court in London for their involvement in the blacklist scheme. In February this year construction companies were ordered to pay out millions of pounds in compensation to 71 workers who had been illegally blacklisted.

The charity organisation, the Samaritans, employer of 110 employees, has had a voluntary recognition agreement with Unite since 2005. However, at a recent meeting management reneged on the agreement and refuses to discuss the issue. Unite now plans to initiate a statutory recognition process.

In February 2013, the Metropolitan Police announced that it would carry out a major investigation with respect to allegations that the police colluded with the blacklisting of construction workers. The investigation is to be supervised by the Independent Police Complaints Commission. The decision to hold the investigation follows mounting evidence that both the police and the security forces were involved in the blacklisting of construction workers via the Consulting Association.

In January 2013, the government announced that it will introduce further limits to compensation for unfair dismissal.

In January 2013, the University of Exeter offered a 2 per cent pay increase but only if staff agreed to withdraw from national pay bargaining.

Demonstrations took place outside parliament on 25 October in protest at the Public Bodies Bill, which if passed would lead to the abolition of the Agricultural Wages Board, the organisation for setting minimum wages and employment conditions in the agricultural sector. An amendment to take the AWB off the list of public bodies to be abolished was defeated in the House of Commons. The labour movement now fears downward pressure on terms and conditions for the estimated 150,000 people working in agriculture.

In August 2011, Plymouth City Council derecognised Unison, the largest union among its staff, after it refused to sign a new collective agreement. Unison alleged that the agreement meant worse pay and conditions for staff and was potentially discriminatory and called derecognition an ‘aggressive and disproportionate response’. After the agreement was revised, Unison agreed to sign it if recognition was restored. Re-recognition was granted in mid-September.

The case underlined union concerns that, in the context of public spending cuts, employers elsewhere in the public sector (where recognition is traditionally very high) might use derecognition to push through cuts in pay and conditions – either as a bargaining tactic or as a longer-term strategy.

In March 2011, the Court of Appeal lifted two injunctions against Aslef and the RMT who, following ballots, had called for strike action in disputes with the London and Birmingham Midland Railway and Serco / Docklands Light Railway respectively. Injunctions had earlier been granted on procedural errors in the ballots. The Court of Appeal clarified the extent of the technical obligations on unions with regard to ballots. Building on its ruling in the British Airways case, it confirmed that minor and accidental ballot errors can be disregarded, if they are immaterial to the result. It opposed applying a ‘standard of perfection’ test that would ‘set traps or hurdles for the union which have no legitimate purpose or function’.

Nonetheless, this was still a topic of some controversy in 2011, with the employers’ organisation, the Confederation of British Industry, calling on 17 June for changes to the law. In particular, they have called for a minimum threshold to be introduced requiring 40 per cent of members who are balloted to vote in favour before a strike can be called. Under these proposals a simple majority of those voting would not longer be sufficient.

The UK Equality and Human Rights Commission published the results of an inquiry into the recruitment and treatment of agency workers in the meat and poultry processing sector in England and Wales. It found evidence of widespread poor treatment of agency workers both by agencies and by user enterprises. Moreover, it found that abusive treatment was less common in organised factories, and stated that “In workplaces where unions are recognised, or have a strong presence, we found that they provide a significant degree of protection for workers”. However, some workers reported that their right to freedom of association had been restricted and also reported instances where hostility of companies towards union activities discouraged people from joining a union for fear of retribution.

Protection against anti-union discrimination (unfair practices) only applies within the framework of organising a recognition ballot, whereas a lot of employer misconduct may take place at a much earlier stage when the union is trying to organise, recruit and build up some kind of structure. Unscrupulous employers commonly employ a variety of anti-union tactics, including threats of closure of the plant and individual job loss, actual dismissals, pay and promotion inducements, holding a company ballot in advance of an independently conducted ballot, denial of any access to a union including preventing leaflets being given to the employees, holding anti-union meetings at the workplace, one-on-one meetings, and changes to the bargaining unit - either splitting it or combining it with others.

In the shipping sector, contracts of employment have been found to expressly forbid individuals from contacting a recognised trade union so as to favour the conclusion of “workforce agreements” with workers’ representatives rather than collective agreements with trade unions, thereby weakening the terms and conditions of employment in this sector.