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SPEAKERS:
John Monks, General Secretary, Trades Union Congress
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Industrial
Law SocietyMeeting
9 December 2002, BMA, Tavistock Square, WC1
Title: Representation at work: The Role of Trade Unions and the role of the Law
Introduction
It is not easy to be reflective in the middle of a crisis. Generals write their memoirs in the comfort of retirement - or as an antidote to the boredom of retirement - not in the heat of battle.
I had hoped to be without distraction tonight, reflecting on 30 odd years at the TUC and on lessons learned and on challenges ahead. As it is, when I reflect on my time at the TUC, there never was a time for abstract reflection. There’s always been some crisis, some distraction, even if it has not been as serious an industrial dispute as the fire service has been. So tonight you are going to hear some distracted reflections!
I started at the TUC in 1969 at the fag end of the argument with Barbara Castle over "In Place of Strife" That argument had no sooner ended when we plunged into another one with the Heath Government about the Industrial Relations Bill. Our slogan was "keep the law out of industrial relations". Then we had "negotiate don’t legislate". We even commissioned a calypso with that title - it’s a real collectors’ item.
These slogans reflected our view, powerfully endorsed by the Donovan Commission, that voluntary collective bargaining backed by a wide ranging immunity from the civil law were all that we needed for a powerful trade union Movement. The golden formula, as Bill Wedderburn called it, had been an effective base for trade union growth - both in terms of membership and influence - although in retrospect, it had not helped us in organising in sectors where the threat of industrial action was not potent - small firms outside print, most of the private services sector, part timers and so on.
Today those slogans have a quaint, historical feel. The rise and rise of individual litigation, much of it requested by the trade union Movement either here or in Europe; the reduction in scope of the golden formula as it was qualified by a succession of Thatcher/Major employment laws; the employment laws of New Labour especially on minimum wages, recognition and unfair dismissal; the impact of the European Social Chapter; and the rise of race and gender awareness and legal rights - all these have changed the landscape.
This landscape is the subject of tonight’s lecture. This new emphasis means that the law is as important a protector of workers as collective bargaining if looked at across the workforce as a whole. Some employers may be wondering whether the price they paid for a reduction of union power was too high, as they face soaring legal costs and regular outings to the Employment Tribunals.You will know, as employment lawyers and advisors, what important issues these are. Work is where nearly all adults now spend most of their lives. Work now encompasses the majority of women as well as men, whether full time or part time. Work is essentially a highly ordered activity. The way in which work is organised largely determines how society is ordered.
In a capitalist system, where the means of production are owned by a small handful of individuals and public services are run by or on behalf of the State, most people work for somebody or something other than themselves.This means that a worker’s collective and individual survival at work is to a large extent dependent on the whether the employer is a success or failure, whether the employer respects the individual. The essential fragility of this arrangement leads to an uneven power balance. It is generally not possible in reality for the individual worker, unless exceptionally skilled, to challenge the decisions of the employer. But it is sometimes necessary for him or her to do it, particularly when there is an issue affecting not just him or her but most or many of the workforce.
That of course is where trade unions came in. The early trade unionists were not directly challenging society; they were standing up for their industrial interests. They were attempting to regulate their working conditions on a collective basis. That is not to say of course that working conditions were not being regulated by the Government. The nineteenth century, the century in which the trade union Movement really took root and began to grow, also saw a number of important legislative measures to regulate working conditions. We had Factory Acts, Shops Acts and, of course, Acts to liberate at least some trade union activities. Although as I said, early trade unionists were not setting out to overturn social structures, by threatening the right of owners to manage their production processes as they saw fit, they were in effect, posing a threat to the social order. That was, essentially, the system of employment relations which we had in the UK - part governed by statute and part governed by free collective bargaining. Sometimes the collective bargaining was not so free as at other times. And the statutes were regularly tested in the courts, sometimes by the employers, sometimes by the unions, occasionally to destruction.
Representation and the Law
I think I have already indicated the importance of the historical background to labour law in Britain. The essential feature of our labour law, making it unusual in the democratised world, is that it does not provide a right to engage in collective bargaining nor to take industrial action. Instead of positive rights, the law operates a series of negative "immunities" from civil or criminal liability. The briefest of examinations of the relationship between the legislation and the actions of successive judges also explains why the trade union Movement has always been suspicious of the law and generally opposed to legal intervention in industrial relations. At the beginning of his seminal text on the issue, "The Worker and the Law", Professor Lord Wedderburn says: "Most workers want nothing more of the law than that it should leave them alone"
Another eminent group of labour lawyers said: "Any account of the law cannot ignore the fact that its present shape has been a result of cat and mouse, played between the courts and legislature for more than a century, in which Parliament has consistently tried to maximise and the courts almost as consistently to minimise the extent to which the taking of industrial action attracts legal sanctions" This system of immunities reflected the tradition of legal abstention in British industrial relations: the courts were to be excluded from matters deemed to be the private concerns of workers, unions and employers. Not so in other Western democracies where political ideologies and industrial rights were enmeshed. In Britain they remained distinct - indeed the industrial Movement gave birth to its own political party to further its ends at a comparatively early stage. The origins of the Labour Party lie in the Taff Vale case.
Of course the courts have regularly intervened in industrial disputes and relished that chance at times in the 1970s after the Trade Union and Labour Relations Act widened the immunities. You only need to look at the activities of Lord Denning in the late 1970s and his consistent attempts to undermine the scope of immunities by putting a narrow construction on the phrase "in contemplation or furtherance of a trade dispute". The other main reason for our view then of the judiciary may be to do with the common law in this country, with its emphasis on the importance of individual property and contractual rights. Until recently, the latter still used the terms "master and servant" in relation to work! Judges have struggled to get to grips with collective rights.
It has to be added that most judges in Britain do still come from a very narrow social base and this has an effect on their perceptions and their approach. This was certainly the view taken by Lord Wedderburn, who said: "... it is of significance that the eras of judicial ‘creativity’ of new doctrines hostile to trade union interests, have been largely, though not entirely coterminous with the periods of British social history in which trade unions have been perceived by middle-class opinion as a threat to the established social order". That statement, with notable exceptions, is still generally true.
Collective bargaining is still the key activity of trade unions in the UK, despite a decline in collective bargaining coverage since 1979. As a means of agreeing workplace terms and conditions, collective bargaining has been established in the UK since the eighteenth century, even though unions were not given legal status until the 1824 Combination Laws Repeal Act.
The process was first given institutional encouragement after the first world war, when joint industrial councils were formed to negotiate, agree and revise industry-wide agreements. Employers favoured these arrangements as they offered stability in setting working conditions and maintaining labour costs. Collective bargaining is now underpinned in various international statutes too, including the ILO and the European Social Charter.
For the purposes of this presentation, I am not going to cover the law on industrial action - that could form the basis of a presentation in its own right. I am going to concentrate on the rights of unions to represent their members, individually and collectively, concluding, as I have said, with a look at present and future legislation and the role of unions in the workplace today. It would be fair to say that until 1979, with the exception of the second world war and the hapless Industrial Relations Act of 1971, non-intervention remained the order of the day.
Once Margaret Thatcher’s Conservatives had been elected on a platform of curbing the powers of unions though, it was inevitable that Parliament was going to intervene. This happened very quickly in the form of the Employment Act 1980, which dealt with secondary action and started dismantling the closed shop. The Conservative Government then continued on an incremental basis, introducing over their long period in office pre-strike ballots, political fund ballots, an end to the closed shop, encouraging union members to take action against their unions, executive elections, notices to employers of proposed industrial action, freedom to join any union, and written consent for check-off arrangements.
This apparent contradiction in Conservative free market ideology and their intervention into trade union affairs can be explained by their view of unions as interventionist in themselves. They were preventing the operation of a free market and had to be fettered.
It was this situation that the new Labour Government inherited and although the changes which they have made have not gone far enough for us in the trade union Movement, they are nonetheless significant and welcome.
The Employment Relations Act 1999 (ERA)
The ERA was, of course, a very comprehensive piece of legislation. It covered not just recognition and representation but also some revision of the law on industrial action ballots, a semi-abortive attempt to provide better protection for trade unionists in the workplace, rights to time off for family emergencies, better regulation of employment agencies, and enabling legislation on part time work and on employment status.
For the purposes of this talk I am going to concentrate on recognition and representation. The new legislation on trade union recognition is highly detailed and prescriptive. This was necessary in order to avoid the problems which beset the previous statutory scheme of the late 1970s, which collapsed in a welter of litigation around the time of the Grunwicks dispute. I was on the ACAS Council at the time. You will no doubt recall that ACAS had the responsibility for operating that scheme. Eventually, we had to write to the Government and tell them that the scheme was virtually inoperable.
The Tories were elected in 1979 and statutory recognition rights disappeared rapidly from the statute book until 1999. We have great hopes for the new legislation, although of course legislation in itself cannot and will not recruit or organise members: that is a job for unions. But it can create a new climate in which unions can go about their legitimate business without too much impediment. The other important indirect effect of the new legislation is its reflexive effect on employers. Since the provisions came onto the statute book, there have been 56 new agreements via the CAC but around 500 voluntary agreements last year alone, compared to around 100 in 1996. I have absolutely no doubt that most of these would not have been concluded without the legislation in place.
The increase since 1997 has been spectacular. It may now start to decline, as we reach what one union officer called the "permafrost" zone of companies where union membership is less and it is harder to get in to build it up to the required levels for a statutory application.
I am not going to describe the provisions of the new recognition legislation as I am sure that you are all familiar with them. What I will do is run through what we see as being the defects in the schedule and the measures which we are proposing to the Government, who are currently reviewing the ERA.
Training and equality are two of the most important issues on which trade unions bargain on a voluntary basis. It has generally been accepted now that a purely voluntary approach to addressing the huge skills defecit in the UK has failed. The skills pilots being provided by the Government will help but will be hampered by the failure of so many managers in the UK to understand the need to provide proper training for their workforce. Managers simply do not understand in many cases why and how to apply new skills to their production processes.
Equality and discrimination cases take up much time in the Employment Tribunals. Discrimination is ugly and unacceptable, whether intentional or not. Employers should welcome the opportunity to consult and negotiate on these issues to ensure that diversity is welcomed and encouraged.The legislation excludes equality and only provides for consultation, not collective bargaining, on training. The TUC submission calls on the Government to add equality and training to the subjects on which collective bargaining must take place following an award of recognition under the statutory scheme.
The definition of "pay" in the legislation does not specify related issues such as pensions. Although the legal definition of pay does now include pensions, and a CAC decision lent weight to this, we believe that in order to provide clarity, the legislation should specify occupational pensions. This is particularly important at a time when so many employers are re-considering what sort of pension, if any, to provide.
The legislation arbitrarily excludes employers who employ fewer than 21 workers. The TUC opposed this strongly when the legislation was going through Parliament. Using Government statistics, there are currently nearly 5 million workers who are excluded from the statutory right to be represented in negotiations over pay, hours and holidays. This represents a fifth of the private sector workforce. It is wholly unacceptable to deny this right in an arbitrary manner to so many workers. It is also anomalous in that recognition rights can be awarded in a firm of 21 workers on the basis of a 9-8 vote in a ballot but in a firm with 20 workers there is no right to recognition even if all 20 of the workers were members of the union and indicated that they supported collective bargaining.
Small businesses have for many years now provided the majority of cases in the Employment Tribunals, with some disgraceful breaches of employment law, including failures to pay the National Minimum Wage, vindictive dismissals and all forms of discrimination. The need for trade union recognition is greatest where employment conditions are worse and there is absolutely no logic in excluding small firms on this basis alone. In addition, it is unfair to have an arbitrary exclusion so that workers have to rely on circumstances entirely beyond their control to secure recognition. The presence of a union would help improve employee relations and ensure that employers kept to their statutory obligations on staffing issues.
The Government would be more likely to reduce the increasing volume of individual employment rights litigation if it were to place more emphasis on encouraging collective solutions. Giving workers a voice in their workplace through a trade union will encourage workplace resolution of individual disputes. Such an approach is most needed in the workplaces where the problems are greatest - small businesses. The Government should use both this review and the forthcoming legislation on information and consultation to encourage collective, workplace solutions to employment rights disputes.
Logistically it would be perfectly easy to have statutory recognition in small businesses. You would not need to have the plethora of rules and tests which are applied to larger firms. A workplace ballot, membership tests and the collective bargaining method would be very simple to operate - not a burden on business at all. The TUC remains strongly opposed to the small firms exclusion and argues that there is no acceptable reason for the exclusion and proposes that the 21 threshold is abolished so that all workers can, if they so choose, benefit from the advantages of collective representation.
There have been instances under the new legislation where employers have attempted to split their businesses to avoid recognition. The legislation provides for associated businesses to be treated as one for the purposes of taking an application over the 21 threshold but the definition is unsatisfactory. The TUC believes that the Government should provide clear guidance on how the test should be applied and how this legislation interrelates with company law. The test should be sufficiently strong to ensure that companies cannot simply divide themselves on paper in such a way as to allow them to claim that they are "associated" employers when in practice they operate as one entity.
In some cases, especially in the newspaper industry, employers have abused the discretionary periods for negotiation. They have asked for extensions to attempt to negotiate a settlement when in reality they have no intention of settling and use these periods, when they have unrestricted access to the workforce and the union has none, to bully and intimidate workers into voting against recognition. The TUC supported provisions in the legislation to encourage negotiation but believes that the set periods are too long. The TUC therefore proposes that all the 20 day periods specified in the Schedule are reduced to 10 days and that where the CAC has discretion to grant a further extension, this should be qualified by the addition of the words "after consulting with each (party)".
The CAC has to decide whether or not the union’s proposed bargaining unit is "appropriate". The TUC was concerned that the wording in the legislation was likely to favour the employer’s view. There has been a very helpful court decision in the Kwikfit case. The TUC proposes that the "effective management" clause is deleted, and that the procedures set out by the Court of Appeal are written into the legislation.
In the White Paper, "Fairness at Work", the Government proposed that where a union had at least 50 per cent membership in the bargaining unit, there would be no need for the CAC to hold a ballot. When the Bill was published, three qualifying conditions had been introduced, whereby an employer could object on various grounds, including evidence that union members did not support collective bargaining. The TUC believes that it is unlikely that union members would not support recognition unless they had been intimidated or misled by the employer. The TUC has advised unions to ensure that they do not offer free membership schemes and that petitions for support and union membership application forms make it clear that the union aims to seek collective agreements wherever possible. In our submission we argue to restore the promise in "Fairness at Work" that where a majority of the bargaining unit are members of the union, the union will get recognition without a ballot.
One of the major problems faced by unions in the process is the lack of access to the bargaining unit until the ballot is held. This allows employers to campaign aggressively against union recognition for a long period during which the union has no rights of access to the workforce to put their point of view. The TUC recommends that unions be given rights of access from the day on which their application is accepted by the CAC and that the Code on Access, which applies during the balloting period, is reviewed by the DTI, in consultation with the TUC.
Another serious problem is victimisation against workers who campaign for union recognition or show support for it. This has taken the form of dismissals, bogus redundancies and threats of demotion. Individual workers can make complaints to Employment Tribunals but even if they eventually win, fatal damage will probably have been done to the campaign, with fellow workers feeling vulnerable and exposed to similar treatment. Following the decision of the European Court of Human Rights in the Wilson/Palmer case, the TUC believes that these tactics are unfavourable treatment designed to restrain the use by union members of union membership to protect their interests and to frustrate a union’s ability to protect its members interests.
The TUC proposes that an unfair labour practice should be defined in legislation which would make such behaviour by employers illegal. This should be enforceable by the union rather than the individual, with interim relief available so that the action of the employer may be stopped immediately.
The TUC opposed the 40 per cent "yes" vote requirement which means that in a statutory ballot on recognition a union must win support from 40 per cent of those voting. This carries the inference that those abstaining are voting against recognition and erects an unfair barrier for unions. The provision is having a knock on effect in voluntary balloting too. The TUC proposes that the legislation is amended so that recognition is awarded where a simple majority of those voting vote in favour.
Once recognition is awarded, the parties must negotiate a bargaining method; if they fail to do that voluntarily, the CAC can impose a default model. This obliges the employer to negotiate with the union on pay, hours and holidays, and consult it on training. There is nothing to prevent employers from inviting employees to sign personal contracts by which they can negotiate these terms separately. The TUC believes that the Government should give consideration to the compulsory incorporation of collective terms awarded by the CAC into contracts of employment.
Problems have been arising where there are TUPE transfers and existing agreements transfer. This has occurred in two cases. In both, a union wanted to extend its existing agreement to cover a group of workers doing identical jobs in the transferee company. In the second, another union believed that it already had an agreement in the transferee company.
The TUC proposes that an additional section should be added to the legislation whereby unions whose recognition agreements transfer can apply to the CAC for an extension of the agreement to cover workers in the transferor company. Clearly the existence of a second agreement with another union could prevent such an extension in the same way as existing agreements do with ordinary applications. This would also be a matter where the TUC could use its procedures to assist in a satisfactory settlement outside the CAC.
The part of the Schedule which allows workers to apply to have a non-independent, or "sweetheart" union de-recognised would be unworkable in most instances. A voluntary agreement with an independent union prevents another union from applying for recognition; such an agreement with a non-independent union also blocks an application from an independent union though there is a complex provision whereby workers can apply to have it de-recognised. In any case, the TUC argued strongly while the Bill was going through Parliament that recognition of a sweetheart union should not prevent an independent union from applying for recognition. A ballot or membership test would determine which union had the support of the majority of the workforce. The TUC proposes that only a recognition agreement with an independent union can block an application for recognition. Non-independent unions cannot apply for statutory recognition anyway.
Currently, unions wishing to make applications to the CAC are often at a disadvantage because they cannot get the information which they need from the employer, for example, on total numbers employed. The TUC believes that there is a case for giving the CAC powers to require an employer to provide relevant information to a union which is intending to make an application to the CAC for recognition. The legislation provides for workers or employers to apply to the CAC after an award of statutory recognition to review the situation where the bargaining unit has changed substantially. The provisions are inordinately complex and have already encouraged one absurdly speculative application from an employer. The TUC proposes that this section should be substantially re-drafted so that where there has been a genuine and substantial change, for example following a transfer or merger, the employer can apply in the normal way for de-recognition, with all the relevant tests applied but otherwise, once an award has been made, it stays in place for three years.
The Wilson/Palmer judgment
No doubt many of you will have heard the wise words of Professor Keith Ewing on this topic at your conference in September. I would only add that Keith has advised the TUC on the implications of this very important judgment and you can see in our submission on the review of the ERA that we believe that there are several areas of the law where reform will now be needed.
We also believe that there is a broader right to be represented on all workplace matters, including pay. This would not mean that recognised unions would lose their exclusive rights to do this where a collective agreement covers such matters but where there is no recognition, a worker could be represented by their union in individual negotiations or discussions with the employer about pay and other matters.
The Government will also have to strengthen the existing feeble protection for workers against discrimination for making use of their union in the workplace, so that employers can no longer put unfair pressure on individual workers not to be covered by collective agreements.
I am not going to dwell on this any longer. You can follow up the detail in our submission, which is on our website, or by reading Keith’s paper.
The EU Directive on Information and Consultation
Again, I know that you are all familiar with the text of the Directive. What I am going to focus on is the opportunities and challenges the Directive presents for employers and unions. In order to do this, I need first of all to set out the TUC’s views on how the Directive should be transposed into UK law. You can see that in terms of opportunities for making this Directive a success, the nature of the transposition legislation will be a key determinant.
The Government has recently produced a discussion paper, "High Performance Workplaces". The paper sets out the context in which the Government is to transpose the EC Directive on Information and Consultation into UK law. The bland title of the Directive should not fool anyone into thinking that it is a bit of window dressing that won’t make much difference to employment relations in the UK. It is, in my view, the most significant piece of employment relations legislation to be introduced in the UK - the foundation stone for employment relations in the future. In order to explain this, it may be helpful to look at the current provision of information and consultation for workers in the UK, particularly in comparison to traditions in other EU member states.
Current provision
The 1998 Workplace Employment Relations Survey showed how little systematic provision of information and consultation with the workforce there is in the UK. Even where there is union recognition, it is by no means always the case that there is consultation with the union on any matters outside the scope of the collective agreement, or indeed within it.
The results of the Survey suggest that in many workplaces the union role is restricted to handling grievances, discipline and health and safety. The survey also indicated that representatives were present in about a third of British workplaces with ten or more employees but that in 30 per cent of workplaces covered by a formal recognition agreement there were no workplace representatives. WERS also looked at the views of employers on the scope of the union role on questions of recruitment, selection and work organisation in workplaces with 25 plus employees. Only 3 per cent negotiated on recruitment and selection issues and only 6 per cent negotiated on staffing levels, redeployment and other work organisation issues.
Where there is consultation with non-union entities, such as Staff Committees, it is idiosyncratic and nearly always entirely employer led. The WERS survey also makes the important point that in order to consult effectively, it is necessary to do so collectively as well as individually. Individual consultation has its place but individual workers are isolated and vulnerable and are unlikely to have the confidence to express their views in a one-to-one with their employer. That is why workers join unions; they need an independent and informed voice. They need an organisation to which they belong and in which they have a say, which can put forward the views not just of themselves but of the majority of workers in the workplace.
Collective representation
The concept of collective representation is fiercely resisted by some individual employers and their main employers’ body, the CBI. They talk of the need for a "light touch" in transposing this Directive. They imply that everything in the UK is working really well and that anyway, managerial prerogative is paramount. This is the philosophy that has contributed greatly to the collapse of the manufacturing sector in some areas, widespread employee dissatisfaction and a burgeoning caseload in the Employment Tribunals. This profound lack of respect by employers for their workforce leads to the "cornflake redundancy" phenomenon in the UK, whereby employees first hear of their impending dismissal, or their company’s re-structuring on morning radio and TV programmes.
The TUC espouses the concept of "partnership" and has set up a Partnership Institute to promote this. I am all for effective working relationships between workers and their employers whether they are called partnership or something else but this must, as the TUC says, embrace a degree of empowerment to the workforce and be based on sound principles of involvement of the workforce in management decision making. Effective provision of information and systematic consultation lies at the heart of this. That is why, in our response to the Government’s paper, the TUC is saying that the Directive should be regarded as the bedrock for the extension of effective partnership working in the UK.
Practices in other EU States
In other EU member States, consultation is taken as a given in most workplaces. There is altogether a more mature attitude to employment relations. Most EU member States will actually have to do very little in order to comply with the terms of the Directive as they have already got there. This is often done via national, sectoral or enterprise level agreement. In a number of EU member States the threshold is lower than the 50 threshold which will probably apply in the UK. This is the case in Austria, Germany and the Nordic countries. In France and Germany there is full blown co-determination on some issues and their economies have not collapsed; indeed, productivity per worker is higher than it is in the UK.
"High Performance Workplaces"
I firmly believe that the UK needs to have more high performance workplaces. To achieve this it is necessary also to have high trust relationships between workers and employers. The problem in the UK is the lack of any effective universal workplace institutions that can create a framework for the development of high trust relationships. This problem could be overcome if the Government were to see the Information and Consultation Directive as a tool for creating that framework. Legislation based on the Directive will represent a radical development in the UK context, introducing for the first time a comprehensive statutory framework regulating employee information and consultation issues. The specifics of the UK’s implementing legislation will be crucial in determining its impact. The government faces some key policy choices.
I would put two propositions to the Government.
Less Red Tape
Firstly, use this Directive to tackle the endless "red tape" whinging by employers. It is true that currently under UK law it is necessary to consult in different ways on a range of issues, including collective redundancies, transfers, health and safety and occupational pensions.
It is also possible to derogate some issues to workforce agreements, including under the Working Time Regulations and the Parental Leave Regulations. Employees will soon have the right to request to work flexible hours and there will be a procedure to be followed where such requests are made.
How much easier it would be for employers if, instead of having to make arrangements to cater for each and every situation as it arises, they had a generic system established by which they could comply with all these regulations. Why not have one permanent body which would satisfy all consultation purposes? It could also cover other important issues such as equality. The answer may be that they do not want permanent arrangements which smack of collective power - the "Trojan Horse" argument - trade unions in by the backdoor. I would say that no employer should fear the voice of the workforce. A good employer will see the sense of universal systems for a dialogue with their employees - indeed many employers do, and they recognise unions.
Less litigation
Secondly, use this Directive to address the problems of increasing individual rights litigation. It is certainly no coincidence that the rise in individual litigation corresponds exactly to the decline in collective bargaining. Companies which do recognise unions are much more likely to have proper dispute resolution procedures and make far fewer appearances in the Employment Tribunals. This was shown in the Government’s consultation paper "Routes to Resolution" which preceded the Employment Act 2002.
It follows therefore that if a company has to set up a proper system for consulting the workforce, this is likely to produce in turn a proper dispute resolution procedure, devised in consultation with the workforce and much more likely to be trusted by them. In my view this would be much more effective than the truncated procedures set out in the Employment Act.
The Nature of the Transposition
Much will depend on the nature of the transposition. In the coming years and months, the TUC and my own union will be lobbying the Government for a transposition that is positive and leaves behind the negativity surrounding negotiations on the Directive in Brussels.
We believe that there is enough in the text of the Directive and in existing case law to ensure that in the end, a new system of employment relations can be developed in the UK, which will match the more mature systems in other EU member states. This should be the aim of the Government. The alternative, which is the employers’ "light touch" approach, leaving it to them to decide what to do and when to do it, will inevitably result in litigation and uncertainty, which is hardly the ideal way to advance modern employment relations. The TUC has identified the adoption of the EU employee consultation Directive as a "real strategic breakthrough", with major implications for patterns of employee representation and indeed trade union organising strategies in the UK.
Under the Directive, the UK must require all undertakings with at least 50 employees (or, alternatively, all establishments with at least 20 employees) to inform and consult employee representatives about a range of business, employment and restructuring issues.
The Directive’s "universal rights" approach will establish elementary representation rights for all employees in the undertakings or establishments concerned, irrespective of union membership or recognition. It is important to emphasise that the Directive itself establishes only a "general framework", and that the specifics of the UK provisions to implement the Directive will have a crucial bearing on its eventual impact in this country.
The government now has until March 2005 to introduce the necessary legislation and the TUC will need to lobby the government on a range of key implementation issues with the aim of maximising the opportunities and minimising any potential threats presented by the Directive. A central trade union concern will be to ensure that the UK legislation introduced to implement the Directive not only provides robust new rights to information and consultation but does so in a way which meshes effectively with existing union recognition and bargaining arrangements and provides a platform for, not an obstacle to, the further spread of union recognition.
Minimum requirements for the UK legislation
The TUC has set out in a statement to the 2002 Congress the minimal requirements required to make the Directive fully effective. These are:
- base the legislation on the principle that information and consultation should be via union representatives where unions are recognised, and otherwise via independent representatives elected by employees;
- allow flexibility in the nature of information and consultation arrangements by agreement with trade unions;
- in the absence of agreed arrangements, enable recognised unions or employees to trigger negotiations with management about the establishment of the necessary information and consultation arrangements and prescribe a statutory scheme as a fallback;
- there are issues about thresholds however; a threshold applied across a nationwide undertaking could be impossible to meet - to require 10 per cent of all the employees of Marks and Spencers to trigger implementation would be well nigh impossible;
- the alternative would be simply to legislate to say that all employers must establish systems for information and consultation; we will be debating this issue within the TUC over the coming months;
- legislation that is clear and sufficiently detailed to ensure that employers, unions and employees know what is expected of them, despite pressure for a "light-touch" approach to regulation;
- clarification of the Directive’s requirements in terms of the timing and subject matter and of information and consultation; subject matter should include pay, hours, holidays, training, equality, pensions, dispute resolution and health and safety as a minimum;
- speedy and accessible mechanisms for resolving disputes about the application of the legislation, with effective sanctions to ensure proper compliance; this should include a legal means of stopping the employer from proceeding with a planned closure or collective redundancies until the consultation has taken place as set out in the Regulations;
- provisions to ensure that the new legislation does not cut across recognised unions’ existing consultation rights in respect of redundancies and transfers, nor inhibits unions’ use of the statutory recognition procedure.
So there we have it. The opportunities are great: to build a mature system of representative democracy in our workplaces, to the advantage of everybody is the greatest opportunity. For the TUC, we will have potential access to workplaces, or parts of workplaces, where we have not been able to get recognition and access to structures which, if we influence their establishment, will provide an opportunity for union representation and organisation.
There are potential opportunities of course for employers to try to use the new legislation to undermine existing agreements with unions or to erect obstacles to union involvement by establishing substitute organisations. My warning to employers who do try this is simple. If the substitute organisation is free enough and effective enough to satisfy the desire of most workers for an independent voice then watch out, as it could soon become a real independent union, or taken into one. If the substitute is an employer stooge, the employer is likely to end up in court.
My warning to unions is to be an effective voice so that the workforce will want you, not a substitute. Examine existing collective agreements to ensure that they do provide proper mechanisms for informing and consulting the workforce.
On balance, the Directive offers far more opportunities than threats because its basic premise is the requirement for effective, permanent, democratic structures for information and consultation to exist in all workplaces employing more than 50. If this is seen as a threat by the CBI then that speaks volumes about the state of employment relations in the UK today.
I’ll leave you with a definition of a union which still seems to characterise the views of some hawkish employers. In the case of R v Bunn, 1872 a union was defined by the judge as being an "unjustifiable annoyance and interference with the masters in the conduct of their business". Call it annoyance, call it interference, I call it legitimate involvement.
Remember that one of the recent legislative moves made by Robert Mugabe was to rule that before calling workers out on strike, unions in Zimbabwe must first obtain permission from the President of the country. One of the most important hallmarks of a mature democracy must be the tolerance of free trade unions - long may they continue to flourish.