by Gary Morton
In 1974 the Conservative Government lost the general election and the Industrial Relations Act (IRA) 1971 was repealed by the incoming Labour Government. From 1979-97 the Conservative Government adopted a step by step approach to restructuring collective labour law. Over 18 years the Conservative Government embarked on a permanent revolution publishing 7 Green Papers, 6 White Papers, 1 Charter, revoked the 1946 House of Commons Fair Wages Resolution and the 1972 Industrial Relations Code of Practice, and enacted 9 Acts of Parliament. Statutory support for a liberty to organise ended in 1980 with the repeal of the statutory recognition procedure in the Employment Protection Act (EPA) 1975 and the passing of legislation making pre-entry and post-entry closed shops unlawful.
From 1990 onwards (if not earlier) the TUC warmed to the concept of a policy of phased recognition leading to full recognition which crystallised in the 1995 TUC document Your Voice at Work. It proposed three broad new rights: (i) a universal right to representation and the right of unions to organise and have access to the workplace and protection for individuals against victimisation; (ii) consultation rights when 10% of the employees were union members; and (iii) collective bargaining rights if a majority in a ballot, or some other means of surveying opinion, wanted collective bargaining rights. The right of representation was confined to a recognised union if there was one. By 1997 the TUC had implicitly accepted the Conservative Government’s restrictions on workers’ liberty to associate and liberty to strike but was in favour of a limited liberty for workers to organise. This article deals with the New Labour Government and workers’ liberty to organise.
The May 1998 Fairness at Work White Paper contained a proposed right to accompaniment. This alarmed The Financial Times which in an editorial dated 22 May 1998 said that “… any union member … will have the right to union representation during grievance or disciplinary procedures. That last … provides the unions with a toe-hold in any company in the land, and the CBI is right … that … it should only apply to disciplinary matters, not run of the mill grievances. It could prove a powerful recruiting sergeant for the unions …”. Barrie Clements in the Independent on 11 July 1998 confirmed that the CBI, the main employers’ organisation, were concerned that where unions were not recognised they could prevail on their members to register grievances on pay which, with sufficient numbers, could become a collective wage claim.
The Government took the CBI’s concerns into account in the Employment Relations Act (ERA) which came into force in July 1999. As the Employment Bill went through Parliament the right to representation was whittled down by defining a grievance as a duty owed by an employer to a worker, e.g. a statutory entitlement to equal pay. This means that employees cannot raise a grievance over pay unless they have a contractual or statutory right to such a pay rise. There is a right to accompaniment by an employed union official, or a certified lay union official employed by that employer, which came into came into force in September 2000. Compensation for a breach of this right is up to two weeks wages capped at £350 a week from 1 February 2009. This is derisory compensation. Crucially, the right to accompaniment is a union right which is not dependent on an employer recognising a union. However, since 2000 the Government has introduced Regulations on flexible working and age and in both cases the right to be accompanied has been confined to a fellow worker and the reference to union representation omitted.
The ERA 1999 is the third attempt at statutory recognition. This current version has more in common with the IRA 1971 than the EPA 1975 and like statutory recognition in the United States it incorporates employer free speech rights (i.e the ability of employers and their agents such as employment “consultants” the Burke Group, to campaign against union recognition). Legitimate campaigning activity includes threatening to shut the company if the workers vote in favour. The procedure gives employers the right to choose the workers’ union. The level of support for the workers’ choice is irrelevant if the employer has helped to create and recognise a dependent “union” (i.e. News International’s recognition of the News International Staff Association). Alternatively, an employer can recognise an unrepresentative independent union with no or very few members in that company.
The National Union of Journalists’ application for recognition by the Sports Division of Mirror Group Newspapers Ltd was rejected as the company recognised an association with just one member. The Central Arbitration Committee (CAC) found that over half the journalists were in the NUJ. The NUJ’s appeals to the High Court and Court of Appeal were rejected. If the CAC declares that a union is recognised then the employer has to engage in a dialogue with the union through a bargaining procedure. The employer is not obliged to agree to changes to terms and conditions of employment (i.e. pay, hours or holidays). There is no recourse to arbitration unlike the EPA 1975. Even with a legally enforceable contract the obligation on the employer to negotiate is purely procedural. The employer’s ability to negotiate different terms with individuals is safeguarded by paragraph 18 of the Trade Union Recognition (Method of Collective Bargaining) Order 2000. Employers have a statutory right to contract with individual workers to the detriment of collective workers’ power.
The Government published a consultation paper entitled a Review of the ERA 1999 in February 2003 and proposed that section 146(3) of Trade Union Labour Relations (Consolidation) Act (TULR(C)A) 1992 (the Ullswater amendment) should be repealed and the law amended to “… to specify that the entering of individualised contracts would not constitute unlawful union discrimination against those union members not offered them, provided there is no pre-condition in the contracts to relinquish union representation…”. There was protection for the bare right to be a union member but nothing more (i.e. no protection for union negotiated collective agreements). The Review dealt with the judgment of the European Court of Human Rights (ECHR) in the Wilson & Palmer cases). The ECHR at paragraph 42 of its judgment said that “A trade union must thus be free to strive for the protection of its members’ interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard …”. At paragraph 46 the Court continued “Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.”
The Government’s response to this judgment was to ignore it. The Review said (page 65, paragraph 3.17) that “The judgment refers to the right for the union “to be heard”, which the Court views as inherent to Article 11 … However, the Court has never expressed any view on what the right implies as a minimum. It has certainly never stated that the right to be heard requires the employer to respond to the points a union might make … Under current UK law, unions can exercise their right to be heard by a number of means, including the freedom to be recognised or seek recognition … and generally to make representations to the employer. These and other arrangements guarantee the right to be heard implied by Article 11″ (i.e. Article 11 of the European Convention on Human Rights and Fundamental Freedoms and the Human Rights Act 1998).
However, new Regulations under the Employment Act (EA) 2002 came into force in October 2004 which require employers to respond to collective grievances but statutory collective grievances can only be raised by independent recognised unions and employee representatives recognised by an employer, i.e. these Regulations exclude independent unrecognised unions. The 2004 Regulations did not extend the ERA 1999 right of the unrecognised union to accompany an individual into a collective right to raise a grievance on behalf of its members. The EA 2002 and the accompanying Regulations will be repealed in April 2009. That means that the opportunity to challenge these Regulations on the grounds that they are incompatible with the ECHR decision in Wilson & Palmer will be lost.
Trade union membership has dramatically declined since 1979. In 1980 the Certification Officer (CO) said that here were 13,212,354 union members. In 1998 the CO said that the 1997 figure was 7,938,213. The CO figure for 2006-7 was 7,602,842. Since 1997 trade union membership has stagnated in contrast to the growth of union membership during the 1975-9 Labour Government. The Government’s Labour Force Survey figures show 6,911,000 union members in 1997 and 6,677,000 in 2005. The density of union membership in Autumn 1997 was 27.5% and 26.2% in Autumn 2005. In Autumn 2005 less than one in five (17.5%) private sector employees were union members but almost three in five (58.6%) public sector employees were union members. The marked difference in the density of private and public sector trade union membership is partly attributable to the fact that union recognition is the norm in the public sector. In contrast in much of the private sector the unions have no legitimacy. Private sector employers have a veto on voluntary union recognition and even with a declaration of statutory recognition by the CAC they only have to go through a negotiating procedure that covers pay, hours and holidays.
There is tripartisan (New Labour, Conservative and Liberal Democrat) party political support for the status quo. The TUC also appears to be broadly satisfied with current collective labour law and shows no appetite for change. The indications are that a future Conservative Government will not make significant changes to collective labour law. Arguably, with the enactment of the ERA 1999 statutory recognition procedure the objectives of the IRA 1971 have been achieved. Over the next 18 months to 2 years or more the impact of the financial crisis and economic recession on employment levels and trade union membership is likely to be negative. The TUC could campaign for a liberty for workers to join and be collectively represented by a union of their choice which, if achieved, would be a powerful organising tool amongst private sector workers but there appears to be no trade union interest in pursuing such an objective and so union membership in the private sector is likely to continue its steady decline.
This article first appeared in International Union Rights volume 16 issue 2 2009