Silence of the lambs

With only 10 disputed cases in its first four months, the union recognition
legislation has hardly whipped up a storm. Philip Whiteley investigates

Dubbed the dog that didn’t bark, the union recognition legislation came into
effect this summer to the benign indifference of the nation’s politicians and
media. With only 10 cases in its first four months of activity, the Central
Arbitration Committee, which was entrusted with new powers for arbitrating on
claims, has hardly been at the centre of an industrial storm.

Examples of the cases include the successful recognition claim lodged by
banking union Unifi on behalf of 22 employees at the Bank of Ceylon, and the
failed application by the Iron & Steel Trades Confederation at Bausch and
Lomb – where the CAC held the AEEU union already had a valid agreement.

It is a far cry from the Grunwick dispute in the 1970s, when the then Labour
government’s union recognition law was resisted by an employer in an ugly
dispute that saw picket-line confrontations and the remarkable sight of
government ministers joining the protests.

"We are actually rather pleased by the fact that the numbers are not
great," says Sir Michael Burton, chairman of the CAC. "The
indications that we have are that there have been a great many voluntary
agreements against the background of the introduction of the legislation."

Data both from the conciliation service Acas and from an annual survey by
law firm DLA indicate a sharp increase in voluntary deals. Jointly the two
sources indicate that there have been twice as many voluntary agreements so far
this year as in the whole of 1999, says Burton.

"One does not want to sound too optimistic, as we are still in the
early stages. I do not think we would have wanted a rush of applications as we
are slowly developing jurisprudence."

Numbers have picked up slightly since the beginning of October, but the
nature of the claims is not increasing in complexity. Burton reports that
"in our training we dealt with imaginary scenarios which were all more
difficult than the ones we have had to face in practice".

He says the subdued start is proof that the system is working in deterring
overly ambitious claims. In particular, the three-year ban on a follow-up
recognition claim after a failed one has been a deterrent.

He points out that the CAC has a statutory duty to encourage a voluntary
deal. A number of formal applications have been withdrawn as the CAC refers the
sides to Acas or itself acts as intermediary between employer and union. One
example was at the Millennium Dome, where the employers originally opposed the
notion of a bargaining unit comprising the welcoming staff put forward by the
union Equity. After an initial meeting with the CAC panel the two sides struck
a deal.

The Government always insisted a formal process should be the last resort,
and it has applied belt and braces to ensure it is seen that way. Quite
ingeniously, it seems equally unpalatable to unions and managers alike.

An employer has every reason to avoid a forced recognition deal, because of
the duties in place on a firm to give access to company facilities, which can
be avoided with a voluntary deal. But there are so many hurdles for the union
to cross before getting there – and a three-year ban on repeating a failed
application – that it, too, would rather sue for peace in most cases.

Roger Steel, employment relations expert at law firm Eversheds, says,
"Unions do not have any form of access to the workforce to persuade them
until they have already had to satisfy the test of 10 per cent membership and
likely support from 50 per cent of the relevant workforce.

"The employer has all sorts of opportunities for doing surveys on a captive
audience of the staff and to run their own persuasive campaign."

A union’s only right of access is to support an individual in a grievance or
disciplinary matter – and a few employers have begun holding such meetings off
site, Steel reports.

Unions must stay "outside the gates", a position from which it is
difficult to compile convincing evidence of sufficient union membership within.
Moreover the three-year ban applies from whenever the union fails after receipt
of the bid by the CAC, not just if the full process is exhausted (see box).

Nonetheless, some hawkish voices predict an upsurge in cases, based on two
factors. One is the possibility of the Conservatives winning a General Election
next year – unions would want to rush through a recognition deal before William
Hague pulls up the drawbridge.

The other is the new law this autumn preventing employers from dismissing
people taking part in a lawful strike. The theory is that as it becomes easier
to hold industrial action, then strikes will be held in support of recognition
claims and more pressure can be brought to bear on employers.

There are obvious problems with both arguments. First of all the
Conservatives still look unlikely to win and the year or two left between now
and a possible repeal of the law still leaves a huge challenge in clearing the
obstacles to a successful bid.

On the other matter, increased industrial action could backfire on the
union. Many of their recruitment campaigns are based on the appeal that they
have put their militant ways behind them, so membership could rapidly nosedive
should talk of strikes reappear.

Steel of Eversheds argues that the days of all-out industrial war are over
for good. So do unions and employers agree?

There are certainly considerable differences from the 1970s. Higher levels
of skills, and a greater degree of competition, mean the interests of labour
and capital have much greater overlap. Confrontation by either side amounts to
sawing away at the branch that both are sitting on.

Sir Ken Jackson, pioneer of partnership at the engineering union the AEEU,
says, "The prospects now are excellent to build a genuinely new approach.
Across many unions there is an understanding that partnership is the only real
option. With confrontation unions would weaken their own influence and
companies would go bust."

He claims the change is deeply rooted and likely to last. "Years ago if
the AEEU raised the issue of partnership it was booed off the platform. Now,
everyone is fighting to prove who is the more committed to it."

The union lists productivity gains and lifelong learning as two of its
strategic aims in any recognition deal. Any private firm that does not also
include these is going to struggle irrespective of union recognition
legislation. Moreover the AEEU spends £5m a year on skills training for its
members, saving money for employers which recognise it.

That is the positive side. On the other hand, unemployment is still falling,
pay awards are edging up and the hand of the union is getting stronger. Could
the commitment to cosy voluntary deals be just a veneer?

Employers accept that some union leaders are converts to partnership. But
the acceptance is nervous. "At the top level of most trade unions there is
now a recognition that unions work more effectively when they are pursuing
shared objectives with management," says Dominic Johnson, head of employee
relations at the CBI.

But he adds, "It would be complacent to suggest that because the
rhetoric is now about partnership that partnership is truly being delivered.
For example we have seen significant increases in balloting activity for strike
action, suggesting that brinkmanship remains an important part of the
collective bargaining round.

"It would be too early to say that there has been a sea change in
industrial relations in the past 18 months."

He argues that many of the easier deals have now been done, and that few
agreements have featured joint training for managers and union representatives
on partnership working.

Diary of a dispute

Benteler Automotive vs the Iron & Steel Trades Confederation (all
dates this year)

25 July – The ISTC union submits an application to the Central Arbitration
Committee that it should be recognised for collective bargaining by Benteler
Automotive.
16 August – The company submits its response. The CAC sets up a panel and
appoints a case manager.
The panel asks the company and the union for lists of employees and members,
and concludes that 57 per cent of people in the relevant bargaining unit are
members. It decides a majority are in favour of collective bargaining because
many have joined the union in recent months in the full knowledge that the
union is engaged in a campaign to achieve recognition.
18 August – The union’s application is accepted by the CAC.
For details on this and all other cases referred to the CAC go to
www.cac.gov.uk

The hurdles at which a union might fall

– The CAC decides that the relevant bargaining unit has fewer than 21 people
– The employer requests intervention of Acas and the union refuses
– The CAC decides that less than 10 per cent of the relevant bargaining unit
are union members
– The CAC decides that the appropriate bargaining unit is different
– Fewer than half of the relevant employees are deemed in favour of collective
bargaining or the ballot (a majority in favour and at least 40 per cent of
eligible voters in all) is lost.

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