End of the affair

DLA’s 10th annual survey on industrial relations shows the relationship
between employers and unions at a crossroads. By david bradley

It feels bad, doesn’t it? Hard-hitting strikes affecting the transport
sector and local authority sectors; high-profile appointments of trade union
leaders; and apparent clashes between the trade union movement and the Labour
government. All is not well in the British workplace.

But is that feeling borne out by fact? While the ‘days lost’ figures from
the Office of National Statistics (ONS) show a small increase in the calendar
year 2001, there were fewer stoppages. The extrapolated figure for the 12
months to April 2002 shows a reduction in days lost compared to the same period
ending April 2001.

Stark contrast

It would appear we are at something of a crossroads. This year’s survey
suggests that, overall, employers have experienced less industrial unrest than
in the previous year, but the contrast between the private and the public
sector is stark. The significant decrease reported in the private sector has
outweighed the worrying increase in the public sector, with reports of
balloting and discontinuous strikes during the past year.

CBI analysis of data shows that 90 per cent of days lost due to industrial
action occurred in the public or recently privatised public sector. To add to
the gloomy outlook, employers and trade unions are pessimistic in their
forecasts for the coming 12 months, with discontinuous strike action set to
increase significantly and threats of balloting continuing to escalate.

There have been interesting developments in the use of balloting threats by
trade unions in recent years. Threats are coming closer in practical terms to
being the equal of their lawful successors, as a way to escalate the negotiating

While actual balloting decreased from 48 per cent in 2001 to 39 per cent in
2002, threats of balloting increased by 5 per cent to 17 per cent. Threatened
ballots can take any form but there has been a noticeable rise in the use of
the ‘ballot for a ballot’ which is still a threat and considerably less
expensive to conduct than an actual ballot. What we are seeing is a growing
informality in the balloting process – required before a lawful strike can be
called – which is bringing negotiations to a head sooner than in previous
years. In certain sectors, such as transport, such threats can often be as
damaging to business as the strike itself. Therefore, anything that can be done
by unions to show the threat of action is real, is likely to strengthen their
bargaining position. The ‘hybrid ballot’ appears to be here to stay.

A pessimistic forecast

Trade unions report the highest levels of tension ever in the workplace. Virtually
every union responding to this survey has been involved in some form of
industrial unrest in the past year. The forecast for the year ahead is also

Forty-two per cent of unions predict an increase in industrial action in the
next year compared to only a third in 2001. Worryingly, for the first time
since 1998, unions are predicting an increase in continuous strikes with 7 per
cent of unions indicating an increase in this area together with an increase in
discontinuous strike action of 14 per cent, compared to 10 per cent last year.
Almost 40 per cent of employers predict they will be subject to balloting in
the coming year. Forecasts for levels of industrial tension are also running at
the highest levels for five years.

We operate in an era where employers and trade unions seek to meet the
challenges of ever-changing law and regulation. For instance, the Information
and Consultation Directive, scheduled for implementation in the UK by 2005,
introduces new employee relations concepts, and the Employment Act 2002, places
emphasis on the internal resolution of individual disputes.

The internal resolution of grievances is often the platform from which trade
union involvement in the employer’s decision-making process is highlighted, and
employees do now have the right to be accompanied by a trade union official,
whether or not the employer recognises the union concerned. This can be a
source of friction, particularly in a non-unionised environment.

Not enough recognition

It also remains clear that the trade union movement does not yet regard the
level of employment regulation as acceptable and looks longingly to continental
Europe. Last year’s TUC conference saw resolutions passed to create statutory
employment protection from day one of employment, to remove any rights of
employers to dismiss striking workers and also to reintroduce secondary
picketing. The RMT this year again called for the repeal of all anti-union laws
passed since 1979 and for the introduction of positive trade union rights.

The Central Arbitration Committee has had a busy year and we have seen a
swing in favour of trade unions seeking recognition with the Kwik Fit decision.
This raises serious issues for employers regarding their management structures
and whether those structures are subordinated to the union view of appropriate
employee groupings for negotiation purposes. Trade unions have also made
significant progress in securing recognition agreements via the voluntary
route, with the spectre of the CAC in the background clearly playing a part.

But there is more than a suggestion that the easy pickings are fast coming
to an end. Trade unions are now more conservative in their aspirations for
recognition arrangement that will be secured in the next 12 months. Will this
lead to greater tension as unions inevitably focus on less welcoming employers?
There is also evidence to suggest that trade unions may not have the resources
to meet the more difficult challenges. Forty per cent of unions said they had
not secured any new recognition deals last year and 23 per cent do not envisage
securing any next year. These figures are virtually double those of last year’s

Unions report they will now concentrate on increasing membership before
starting negotiations with employers on new or extended recognition
arrangements. Only a fifth of unions surveyed said they would target employers
who currently have no record of recognising trade unions. Non-unionised
employers are the most sceptical of deriving any benefit from recognition
agreements and that is borne out in this year’s results.

Is partnership the key?

Partnership, as a concept, continues to be well received by employers but
where it appears to be needed most – in the public sector – it is a rare bird
(see panel, page 14). It is clear from media coverage that there are still two
types of partnership being pursued. There is little doubt that the Government
and employers see partnership as a relationship between employers and the
workforce. Trade unions see that too, but also promote the concept of
partnership as one between the union movement and Labour government. But there
is more than a hint of unrequited love here. Government ministers resigning
from trade unions and the suggestion at this year’s TUC conference that
dialogue should be established between the unions and other political parties,
sends the message that the government desires a minimalist role in industrial

The survey last year highlighted worrying trends for the year ahead. Our
concerns appear to have been well placed as far as the public sector was
concerned though the private sector had a better year than expected in terms of
industrial unrest.

In the public sector, half of employers reported actual balloting this year
– nearly double the figure for 2001 (28 per cent). Moreover, 22 per cent of
employers recorded threats of balloting, compared to only 2 per cent in 2001.
Despite this, the actual level of industrial action in the public sector fell
in comparison to previous years, with 2 per cent of employers recording
continuous strikes compared with 12 per cent in 2001.

The forecast for the coming year is again one of pessimism – particularly
for the public sector. Statistics from the public sector suggesting a doubling
of strike action and further increases in ballots for industrial action support
that view. Trade unions forecast the highest level of industrial tension for
five years in the coming 12 months, with predictions of a significant increase
for both continuous and discontinuous strike action.

It is this sense that we are about to embark upon a worsening period in the
state of industrial relations that has given rise to a feeling that conditions
are already worse that the statistics bear out.

David Bradley is partner and head of employment at DLA

Is partnership under threat?

The concept of partnership between
employers and unions appears to be treading water. The survey suggests that
while partnership is capable of working in the private sector, it is under
serious threat of floundering in the public sector.

A drift to the left in terms of trade union leadership over the
past year or so may be a threat to the concept of partnership, but it is still
a concept welcomed by employers. The election of union leaders such as Mick Rix
at Aslef, Mark Serwotka at the Public and Civil Service Union and most recently
Derek Simpson at Amicus all place the concept under the spotlight. As Serwotka
said after becoming general secretary of the PCSU last year: "In my
election campaign I strongly argued that partnership was not the way forward."

A common theme emerging from the new union leaders appears to
be that the partnership concept welcomed by employers presumes a weakness of
bargaining position on the part of trade unions.

An overwhelming 82 per cent of employers welcome a partnership
approach but only 58 per cent of unionised employers have been offered such an
approach in the past 12 months (down 5 per cent from last year). However, the
benefits of partnership in terms of employee relations appears to be being

Some 58 per cent of employers believe partnership benefits
employee relations, down from 67 per cent last year, with a shift towards
"makes no difference" (41 per cent up from 30 per cent).

The position is particularly interesting when the division
between private and public sector employers is analysed. Ninety per cent of
public sector employers would welcome a partnership approach, but only 50 per
cent have been offered such an approach. In contrast 63 per cent of private
sector employers have been offered a partnership. It appears that in areas
where trade unions need to make progress with employers they are more prepared
to offer partnership. Where unions are strong, in the public sector, it may be
regarded as a concession and is less likely to be offered.

It is important to look at the principles of partnership to
understand why the concept is faltering, particularly in the public sector. It
now appears to be accepted that there are six principles of partnership:

– Shared commitment to the success of the enterprise

– Recognition of legitimate interests

– Commitment to employment security

– Focus on the quality of working life

– Openness

– Adding value

In two key areas, the first and third of these principles,
public sector employers and managers are less able to influence matters than
are their private sector counterparts. In terms of the success of the
enterprise, influences such as government policy have as much to do with
success as implementation by managers.

Security of employment is also a very different issue in the
public sector. It tends to focus on outsources and transfers of employees
rather than, say, redundancies. Unions in the public sector are vehemently
opposed to such transfers and the concept of public private partnerships, and
it is therefore hardly surprising that the concept of partnership is not
promoted by unions in the public sector to the same extent it is in the private

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