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Date: Sat, 28 Mar 98 20:17:54 CST
From: Michael Eisenscher <meisenscher@igc.apc.org>
Subject: WHC - LIVERPOOL DOCKERS: DEFEND THE ILO CONVENTIONS!
Message-ID: <bulk.19417.19980329121625@chumbly.math.missouri.edu>

Western Hemisphere Conference—Liverpool Dockers: Defend the ILO Conventions!

Merseyside Port Shop Stewards Committee, 28 March 1998

To: Members and Supporters of the Western Hemisphere Conference Continuations Committee, and to All Supporters of Trade Union and Democratic Rights

Dear Brothers and Sisters:

The Western Hemisphere Conference Continuations Committee has received a message from Doreen McNally, chair of the Women of the Waterfront (WOW) in Liverpool, requesting our support in promoting an Appeal in Defense of International Labor Organization (ILO) Conventions and Against Thatcher's Anti-Union Laws that was prepared by John Hendy, one of the activist attorneys who assisted the 500 sacked Liverpool dockers throughout the two-year battle. Sister McNally sent this message on behalf of WOW and the Liverpool Shop Stewards Committee.

The Appeal in Defense of ILO Conventions—which Hendy drafted on behalf of the locked-out Liverpool dockers—was submitted to, and approved by, the Jan. 31– Feb. 1 Berlin Workers Conference For the Abrogation of the Maastricht Treaty, which I attended in representation of the WHC Continuations Committee. Jimmy Nolan, chair of the Merseyside Port Shop Stewards Committee, was one of the conference chairpersons.

The 320 delegates to this conference, representing unions and political organizations from 20 countries, added their names to a petition I submitted demanding that all charges be dropped against the defendants in the Liverpool Dockers Victory Defense Committee in Oakland, Calif.

One of the main decisions of the Berlin Conference was to hold a meeting in Defense of the ILO Convention in Geneva on June 8, 1998, at the time of the yearly assembly of the ILO.

One purpose of this gathering is to assess the current attempts to transform the ILO into a subsidiary of the World Trade Organization (WTO), thereby destroying labor conventions that have registered decades and decades of victorious labor struggles. Another purpose is to rally the delegates at the ILO yearly assembly behind the appeal to defend and preserve all the ILO conventions.

To that end, Brother John Hendy also submitted a related Application to the ILO Committee of Experts, with a separate introduction.

The delegates at the Berlin Conference voted to endorse these documents and to distribute them widely throughout the international labor movement.

In this vein, I would urge all U.S. trade unionists to add their names in support of the Appeal in Defense of the ILO Conventions and to send delegates from their unions to the Independent Meeting of Trade Unionists, which will be held June 8 in Geneva. [For more information about this gathering, you can contact me at (415) 641-4610, fax 941-8616, or email at unite@labornet.org.]

I am including below for your information three documents on this subject:

(1) the Appeal in Defense of ILO Conventions,
(2) the Introduction to the Application to the ILO Committee on Experts, and
(3) John Hendy's Application to the ILO Committee on Experts.

If you are interested in receiving the full 28-page packet with the resolutions adopted by the Berlin Conference, please send a check for $6 to WHC, c/o SF Labor Council, 1188 Franklin St. #203, San Francisco, CA 94109. Make check payable to WHC. These documents are of great relevance to all unionists and activists in this country who are fighting against NAFTA, the FTAA, privatizations, and the MAI.

In Solidarity,
Alan Benjamin,
Assistant Coordinator, Western Hemisphere Workers' Conference

Appeal in Defense of ILO Conventions and for the Repeal of Thatcher's Anti-Union Laws

Furthermore the UK has been strongly criticised in previous reports by the ILO Committee of Experts for its failure to uphold the rights of workers dismissed while on strike:

Report of the Committee of Experts on the Application of Convention and Recommendations,

76th Session (1989) pp 234-41, 302-3;
78th Session (1991) pp 217-23,289-91;
79th Session (1992) pp 22-9, 264-5;
80th Session (1993) pp 237-238;
82nd Session (1995) pp 200-1;
85th Session (1997) pp 204-5.

Six times did the ILO Committee of Experts call on the UK government to make provisions within domestic law to uphold the rights granted under ILO conventions, thus, in fact, calling on the UK government to repeal anti-trade union laws.

In the meantime, Neil Kinnock—European Commissioner for Transport -- declared during the French lorry drivers' strike that "special free corridors" should be set up to secure the "freedom of circulation of goods" in case of strike. What is at stake is the extension of the United Kingdom's anti-union legislation to all the countries submitted to the Brussels Commission.

We, the undersigned, participating in the Berlin European Conference

(January 31 - February 1, 1998)
  • For the Repeal of the Maastricht Treaty
  • Against the Ratification of the Amsterdam Treaty
  • Against the Single Currency
  • For the Unity of Workers and Peoples in Europe in Defence of their Rights, in Defence of Democracy, in Defence of Trade Union and Civil Rights.

Declare that these laws interfere with rights described as fundamental, legitimate and essential by the ILO Committee of Experts. Consequently these laws must be repealed.

After being informed of the application to the ILO sent by J. Henry, Q.C, on behalf of the Liverpool dockers, we decide to support this application and to circulate it in the international labour movement for backing.

[ ] I endorse this appeal

Name
Country
Organisation

Introduction to the Application to ILO

The Liverpool Dockers and International Law

This is to introduce an application to the ILO Committee of Experts on behalf of the Liverpool dockers who were dismissed for refusing to cross the picket line of other workers who themselves had been sacked for trying to protect their terms and conditions of employment. The struggle for justice of the Liverpool dockers came to an end on January 26th 19988 after two years, three months and 29 days. This was the most heroic fight for the dignity and rights of workers in Britain since the miner's strike of 1984–5, and it lasted more than twice as long. Tribute must be paid to the wise and committed leadership of the Merseyside Port Shop Steward's Committee, and the dedication, selflessness and loyal resistance of the dockworkers and the Women of the Waterfront.

We need to ask why they failed in their ultimate goal—that of getting their jobs back. Once reason in particular stands out.

Britain's laws on trade unions are the worst in Western Europe. The Labour Prime Minister Mr Tony Blair has refused to change anti-trade union laws introduced by Conservative Governments between 1979 and 1997. He has boasted:

The changes that we do propose would leave British law the most restrictive on trade unions in the western world. (1)

Yet these laws enabled the employer of the Liverpool dockers to instantly dismiss them all for their refusal to cross a picket line. These laws denied them any right to seek redress in Court or Tribunal. These laws allowed the employer to replace the dockers permanently with substitute scab labour. These laws would have held the dockers' union liable in damages for supporting its own members had the employer bothered to sue. These laws caused the dispute, prolonged the dispute, and defeated these workers in their struggle for reinstatement.

But the laws which the British Labour Government are committed to retain and which denied these workers justice are themselves unlawful. They have been condemned by each of the international bodies which supervise the international laws which bind the UK.

The ILO Freedom of Association Committee (2) and its Committee of Independent Experts (3) have both held that the restrictions on the right to strike in the UK and in particular the denial of protection against dismissal to strikers is in breach of Convention 87 to which the UK was a founding signatory. (4)

The United Nations Declaration of Human Rights and associated Conventions '(5) (all binding on the UK) reiterates the right of every worker to be in a trade union for the protection of his interests. The UN Committee on Economic, Social and Cultural Rights have held as recently as 4th December, 1997 in relation to the UK that the:

failure to incorporate the right to strike into domestic law constitutes a breach of Article 8 of the Covenant. (6)

The 1961 Social Charter of the Council of Europe provides not only for the right of union membership but grants an explicit right to strike in Article 6 (4)—to which the UK is signatory. The Committee of Independents Experts (7), the Government Committee (8) and the Committee of Ministers (9) have each condemned the UL's laws on strikes for similar reasons as being in breach of that Article of the Social Charter.

It is simply not acceptable for a civilised, industrialised country like the UK which seeks to make respect for international law a condition of other countries trading with it, and the grant of aid, to be an international criminal. It is still less acceptable that a Labour Government, elected through the efforts and funding of the trade union movement, should be as committed to flouting their international legal obligations as their Conservative predecessors.

Workers' delegations to the ILO are asked to raise this matter within the ILO so that the justice of the Liverpool dockworkers' case, denied in British law, may at least be recognised in international law.

John Hendy, QC
29th January 1998
Footnotes
  1. The Times ' newspaper, London, 31st March 1997
  2. On many occasions since 1991
  3. In 1989 and subsequently
  4. For the latest condemnation see Report of the Committee of Experts on the Application of Conventions and Recommendations, 1997, 85th Session, pp 204-5.
  5. Art 23(4) of the Declaration. Art 8 (1)of the International Covenant on Economic, Social and Cultural Rights 1966. Art. 22 of the International Covenant on Civil and Political Rights 1966.
  6. The Committee also held that: 'The common law approach recognising only the freedom to strike and the concept that strike action constitutes a fundamental break of contract justifying dismissal, is not consistent with the right to strike. The Committee does not find satisfactory the proposal to enable employees that go on strike to have a remedy before a tribunal for unfair dismissal. Employees participating in a lawful strike should not ipso facto be regarded as having committed a breach of employment contract. '
  7. C XII-1 at 130, C XIII-1 at 159, C XIII-3 at 144-145.
  8. 13th Report (III) at 101-3.
  9. 12th cycle, 497th meeting, RchS(93)3, 7th Sep 1993; 13th cycle, 581st meeting, RChS(97)3, 15th January 1997.

In the Matter of 500 Dismissed Liverpool Dockworkers

Application to the International Labour Organization Committee of Experts

made by John Hendy, QC,
on behalf of the Merseyside Port Shop Stewards Committee
1. This is an application made by

All correspondence relating to this matter may be addressed to the General Secretary at that address under ref: XXX tel:XXX, fax XXX. The application is made in relation to breaches of ILO Convention No 87.

The Facts

2. On Monday the 25th September 1995 18 dockworkers employed by a company called Torside Limited were unloading a ship in the normal course of their work in the Port of Liverpool, Great Britain. It is believed that Torside Limited is controlled by the Mersey Docks and Harbour Company Limited. The workers were asked to do additional overtime.

The customary arrangement was that overtime of up to two hours' duration was rewarded by a payment of two hours' wages. In breach of this arrangement the dockworkers were told they would not get paid their contractual entitlement but would be paid merely one hour of overtime pay for one hour's work.

3. Work stopped on the vessel and a deputation of five men went to negotiate with management.

4. The five men in the deputation were dismissed on the spot by the manager and the remainder of the men on learning this walked off the job immediately. Negotiations took place that night but were unsuccessful and the following morning (26th September) the workers, all members of the Transport and General Workers Union, placed some of their members as pickets at the gates. The employees of the other companies as well as those of Torside did not work in consequence. The principal company affected was the Mersey Docks and Harbour Company which directly employed over 500 dock workers. The vast majority did not work in consequence of the presence of the pickets. Some refused to cross picket lines, others went to protest to the main office. All were told that if they did not work they would be dismissed.

5. On the 27th September there were again picket lines outside the dock gates and very few men went to work. The following day, 28th September, the Mersey Docks and Harbour Company (which was the major employer in the Port) delivered letters by courier to the home of each of its employees advising them that if they did not attend work normally on Friday 29th September they would be dismissed.

6. Despite attempts by the dockworkers' union, the Transport and General Workers' Union at shop steward level on 29th September and later at a national level, the dispute was not settled. Since Torside Ltd refused to reinstate the Torside workers, the Mersey Docks and Harbour Company workers refused to cross the picket line and in consequence 500 were dismissed forthwith. The two employers engaged replacement workers.

UK Law

7. All employees taking industrial action are in fundamental breach of contract and may be treated as having repudiated their contracts of employment, or be instantly dismissed for gross misconduct: Denaby and Cadeby V Yorkshire Miners Association [1906] AC 384 (HL); Ticehurst V British Telecommunications PLC [1992] IRLR 219 (CA).

8. The employees of both companies are barred by UK law from bringing a complaint for unfair dismissal: s. 238 Trade Union and Labour Relations (Consolidation) Act 1992.

9. Furthermore, it is lawful under UK law for an employer to penalise workers taking industrial action by dismissing them. There is no protection for trade union activity within working hours save with the employers' consent: s. 152 of the Act.

10. There is no prohibition in UK law against the employee engaging replacement labour to substitute for those dismissed in a strike.

11. All strikers may be sued for damages for loss sustained by the strike: National Coal Board v Galley [1958] IWLR 16 (CA).

12. The TGWU is precluded by UK law from taking any action to support its members because: (i) UK law requires a prior ballot (showing a majority in favour) to be taken in relation to all forms of industrial action; s. 226 of the Act and this includes workers who, individually and by exercise of their individual consciences, decline to cross a picket line of other workers involved in a dispute; and (ii) all secondary industrial action is absolutely prohibited; s.224 of the Act. The refusal of the Mersey Docks and Harbour Company workers to cross the picket line was secondary action because the dispute their action related to was not a dispute between them and their employer.

The ILO Convention 87

13 The ILO Convention grants worker the right to be involved in trade union activities (article 3) and the laws of the land shall not interfere with this right (article 8).

14. The Freedom of Association Committee holds that such activities include strike action if such action is taken by workers' representatives to defend their economic interests. The 'right to strike' is described variously as fundamental, legitimate and essential to such defence.

15 The Committee also holds that workers involved in strike action be protected against any discrimination which may be exercised as a result of their participation in such action. In particular the Committee is of the opinion that dismissal as a penalty for strike action is 'an extremely serious measure' which constitutes a 'violation of the freedom of association'; a freedom guaranteed under the Convention.

16. In failing to provide adequate protection for workers whose right to strike under the article 3 is effectively negated by the common law, the UK government continues to be in breach of its obligations under the treaty. Article 8 obliges any country ratifying the convention to make provision within domestic law to uphold the rights granted under article 3.

17. Furthermore the UK has been strongly criticised in previous reports by the ILO Committee of Experts for its failure to uphold the rights of workers dismissed while on strike: Report of the Committee of Experts on the Application of Conventions and Recommendations, 7th Session (1989) pp 234- 41, 302-3; 78th Session (1991) pp 217-23, 289-91; 79th Session (1992) pp 242-9, 264-5; 80th Session (1993) pp 237-238; 82nd Session (1995) pp 200-1; 85th Session (1997) pp 204-5.

18. Following the Committee of Experts' criticism there has been no substantial change of UK law and the dockers' case represents a continuation of the Government's failure to honour its obligations under the Convention. The change of Government has not changed or undertaken to change these laws and in the course of their election campaign the Labour Party undertook that: the key elements of the trade union legislation of the J980 '5 - on ballots, picketing and industrial action - will stay. (New Labour, New Life for Britain, 1997, Labour Party). Consequently, the Prime Minister has said: The changes that we do propose would leave British law the most restrictive on trade unions in the Western world (Times, 31.3.97).

19. Whilst a requirement for pre-strike ballots is not necessarily in breach of Convention, balloting provisions must not be such as to seriously limit the right to strike (see Digest of Decisions of Freedom of Association Committee, 4th edition, 1996, paras 505-513). In the dockers' case urgent, immediate and local action was thought necessary by local shop stewards and involved the posting of pickets and individual refusals to cross picket lines. The UK requirements of ballots were inappropriate, burdensome, slow and oppressive.

Conformity with them would have so hindered the right to take industrial action as to severely limit its impact. In any event majority support for the action was demonstrated by the overwhelming majority of dockers refusing as individuals to work. A ballot was therefore a wholly superfluous assessment of democratic support.

20. The Freedom of Association Committee have ruled that when the requirements for full union backing are such as to hinder the purpose of any action then this is not compatible with the principles of freedom of association and is an affront to the rights of trade union members to organise their own administration and activities.

21. A central allegation is that under article 3 of the Convention 87 the dockers have the right to be involved in such trade union activities as their representatives recommend. These activities may, according to the Freedom of Association Committee's decisions, include strike action if the economic interests of the workers are at stake. Under article 8 it is the duty of the UK government to ensure that UK law does not interfere with or contradict this right and yet they have failed to carry out this duty.

22. Another contradiction between UK law and the Convention concerns the issue of secondary action. Any action taken by workers not directly affected by the dispute is regarded as secondary and is not legal industrial action. Torside is a subsidiary of Mersey Docks and Harbour Company but UK law regards the latter's employees to be in a secondary relationship to a dispute between Torside and its employees. The ILO Committee of Experts and Freedom of Association Committee have stated that a prohibition on secondary action is in breach of Convention and specifically where as in the dockers' case, the action becomes secondary because of the structure of the companies involved.

23. It is asserted that the dockers' action fully complied with the Freedom of Association Committee's decisions as to what may constitute a legal strike in terms of: the reason for the strike; the peaceful protest; the involvement of union representatives at a local level; the attempts at reconciliation and the involvement of secondary picketing.

JOHN HENDY QC
17th December 1997
on behalf of the Merseyside Port Shop Stewards Committee