The new statutory recognition laws may not have brought the feared flood of cases, but don’t think they are just a passing threat, warns Robbie Gilbert
Employee representation and trade union recognition – not issues to make the pulse quicken. Hearts are more likely to sink, at the memory of numbingly dull canteen committees – the inquorate discussing the inconsequential – or the fear of grindingly slow negotiations with obstructive shop stewards. So sighs of relief will greet the news that, four months into the new statutory recognition procedures, no flood of cases has emerged. But those sighs of relief are premature.
Statutory recognition is not a passing threat. It is more like a test we must be ready to face at any time, like a visit from the VAT inspector – and just as important. It scrutinises the effectiveness of your communication structures and thoroughly examines the health of your relationship with staff.
Where you have lost the vital advantage of good relationships at work you are likely to fail the recognition test. Worse, you now risk being forced by the law into arrangements you would never have chosen. As with any other exam, you need to be prepared if you want to do well.
Of course, most managers say they far prefer to deal directly with their workforces than to work through intermediaries. Face-to-face discussions with fully briefed and empowered managers working the issues through with their teams are better than remote sessions with elected representatives or shop stewards. Senior managers addressing mass gatherings are more effective at conveying the message on developments than meetings with staff committees or joint negotiating bodies.
But how often do we let it slide? Meeting the delivery date for an urgent piece of work takes precedence: "There is no time to talk it through – just get on with it." Other priorities crowd the staff feedback session out of the MD’s diary.
Support of a representative
And if we are honest, how effective is direct participation at mediating the difficult decisions such as plant closure, the contracting out of a valued function, hiving off a long-standing business and redundancies? People affected in such cases may want the support of a representative, as they would in grievance or disciplinary hearings.
These shortcomings with voluntary arrangements for direct participation are part of the reason why legislators here and in Europe have been so keen on requiring the representative structures that many British managements say are not wanted. But crucially, they have been persuaded that if people are indeed happy without such representative arrangements, they need not have them.
What staff want in the way of representative structures is a key determinant. Those of us responsible for employee relations need to be able to persuade senior managers to invest the time and effort to manage the issue accordingly. The legislators have not made this easy. Works council regulations, redundancy and transfer regulations are all complicated, and none is more complex than the law on statutory recognition.
Yet recognition is the most important. It requires not just that the employer consults with employee representatives but that collective bargaining should take place, and on matters which fundamentally impact on the management of the undertaking, such as pay, hours and holidays – issues that determine the cost of labour and how people may be deployed. Recognition could change the life of the business which, while not always for the worse, is not necessarily for the better.
Ignoring or rejecting union approaches until a formal recognition application is lodged with the Central Arbitration Committee (CAC) may mean more and bigger trouble later. The employer will struggle desperately to regain control as the statutory process races on. The CAC is not out to do the employer down, but early cases already make this much clear.
Where the employer has failed to do the necessary homework, the adjudicating panel has little alternative but to admit the union’s well-prepared and substantiated case and to reject the hasty riposte of management which lacks convincing evidence on employee attitudes. Experience of working with companies on these issues has shown us that it is only when the CEO understands what could happen if the company loses the initiative at this point that the necessary drive to prepare for the contingency is generated.
Whether the inclination of the board is to resist recognition in favour of alternative arrangements or to seek the possible advantages of a "partnership" deal with a sympathetic union, it must plan ahead.
Start by checking where you stand. It might be unpopular but necessary change has been pushed through. If you find you have weakened the trust of the people who work for the business and you want them to resist the blandishments of a trade union, rebuilding that trust may be the priority.
Time is equally essential for negotiating a good partnership agreement. If you want a partnership deal on terms that meet the needs of the business, and with the right union, you can expect months of hard slog ahead of you.
We should not really be surprised that there has been no flash flood of statutory recognition applications. The unions are still getting to grips with the law themselves. The levels of support they must attract are intimidating, and are much more difficult to achieve than a generation ago. Nor do they have the resources to pursue too many cases at one time. And they are determined to avoid the embarrassment of failure before the new law beds down.
What is happening is that many informal approaches are being made – letters and calls from union organisers reminding employers of the new law and asking to come and talk – usually where the union thinks it has a reasonable case. This is how the law was meant to work.
Those who have prepared by securing relationships that suit the business and that are supported by those who work there have little to fear from the "recognition test". Those who have not seen it coming are among the most likely to fail it.
Robbie Gilbert is chief executive of the Employers’ Forum on Statute and Practice and an employment relations consultant. E-mail: robbiegilbert@ compuserve.com
His new book, Employee Representation, £35, ISBN 0 7545 0222 8, is published on 13 November. To order a copy call 020-8686 9141