United we stand

Is the UK standing at the brink of a new wave of industrial action with unions gaining new powers and greater confidence?  If so, what should companies do to protect themselves?

At the end of 2003, the Socialist Review hailed the return of ‘wildcat’ action claiming that the victorious postal strike had demonstrated that direct and unofficial action was now back on the agenda as an effective weapon against perceived workplace injustice.

Bob Crow, leader of the railway union RMT, was quoted as asking one rally “Why bother with ballots – where does that get us?” And the suggestion was made that union action could now be instigated at grass-roots level, regardless of the feelings or actions of the union leadership and the Labour party.

In truth, the Socialist Review may have been a little pre-emptive. While the media may paint a dramatic picture, the fact is that the level and length of industrial disputes in the UK is among the lowest in Europe. In the majority of cases, disputes are resolved before crisis point is reached.

That said, the Communication Workers Union (CWU), caught at the centre of the postal dispute, is not alone in feeling frustration at the procedures that must be carried out before official industrial action can begin. Head of communications Chris Proctor says: “It’s a question of fairness. Imagine you arrive at work and your manager has completely changed your work times, your duties and your overtime arrangements. The whole office is up in arms about it and the staff are unanimous that management withdraws these impositions. If management refuses the only alternative could be industrial action.”

To do this legally – referring the issue to the union’s branch committee and headquarters, conducting a postal ballot and communicating their intent to carry out industrial action to the employer with seven days’ notice – will take three to six weeks. During that time the workers will have had to work under the new conditions and the employer has had plenty of time to work out how to deal with industrial action should it occur. “If management stopped implementation while the union consultation process continued, there would be no need for industrial action,” Proctor says.

“We don’t believe there is any more appetite for direct action than at any other time,” he continues. “The workforce has not changed. What has changed is management attitudes. Management want change much quicker than previously and is not often prepared to consult or negotiate for any length of time.”

The ultimate deterrent for unions intent on industrial action without the official balloting of members, is that employers can go to court and apply to sequester the union’s assets.

According to Stefan Martin, at City law firm Allen & Overy, this remains an effective deterrent. “There can’t be many unions that feel so comfortable in their financial position that they’re prepared to take on their employer in this way,” he notes.

Chris Brewster, professor of international human resource management at Henley Management College, disagrees. “The law is not particularly useful in this context,” he says. “But what it does do is establish a background, a general feeling about this area of employment and if you tell people they’re in breach of the law then generally they won’t do it.”

Brewster argues that if an employer did take a union to court it would mark a point of no return – the move will bankrupt the trade union concerned. “If you’re strong enough to do that as an employer, then you’re probably strong enough to destroy the union without going through that process,” he says.

The concerns of the unions towards balloting members is not about avoiding the democratic process or making it easier to undertake action, but about making the system more efficient.

Amicus general secretary Roger Lyons wants to promote greater representation of the membership within such ballots. “We’ve always insisted on balloting our members for any form of industrial action,” he says. “But what we find difficult is that it has to be a postal ballot. This reduces the number of people who take part. We want secret and properly conducted ballots carried out in the workplace.”

GMB general secretary Kevin Curran would also like a faster balloting. In addition he would like to see indefinite protection from dismissal while employees take lawful industrial action as well as more protection for workers from abusive employers during union recognition processes. “Better time off for trade union duties would help unions take the heat out of difficult situations and nip problems in the bud,” he says.

“When wildcat action occurs it is usually a symptom of built-up frustration with the employer that has occurred over time and resulted in a complete breakdown in trust – as we saw at British Airways over the summer.

Where industrial relations are good and communication and trust is maintained between the workforce and the employer, we see the results in low levels of industrial action.

It seems unlikely that either Curran or Lyons will see their desires satisfied in the foreseeable future. While welcoming parts of the recent Employment Relations Bill, Lyons is frustrated that employers can still sack workers after eight weeks of strike action – as long as they have taken ‘reasonable steps’ to resolve the dispute – which, as Lyons notes, is hardly a precise stipulation. He is also concerned that UK law still prevents employees in companies with less than 21 staff from gaining union recognition in the workplace. This figure is the highest threshold in the European Union and affects five million potential union members in the UK.

While the Employment Relations Act also failed to specifically address the matter of anti-union behaviour on the part of employers during the recognition process, employment relations minister Gerry Sutcliffe defends the Government’s approach by citing an entire safety net of anti-discrimination legislation that offers workers protection.

“We take bullying at work very seriously and believe employees should be able to work without fear of being bullied or harassed from employers, fellow employees or anybody else,” he says.

At the same time, Sarah Veale, senior employment rights officer at the TUC, strikes a less then confrontational tone over the issue. “You can encourage, facilitate and pass laws to stop employers from being entirely anti-union,” she says, “but it’s down to hard graft on our part to prove unions have a role in the workplace.”

Indeed, offering relevant services, support and benefits to members will probably prove more crucial to the future of the trade union movement than any relaxation of legislation. With future campaigns reflecting the new world of work – centring on work-life balance issues, pensions and the protection of jobs from off-shoring – the unions are faced with having to recruit from a more fragmented employment market, with increasing number of freelance self-employed workers.

In the past year the GMB in London has established new branches for minicab owners and for music and event road crew. In both cases, the new members are self-employed, individual workers rather than a united body with a common workplace. The union attracts such members through practical offers such as reduced insurance premiums, health and safety advice and free legal services, but this does not mean collective action would never take place.

Rose Conway, from GMB’s London region, says: “Membership is a self-preservation sort of benefit. Some of the workers in the music industry don’t realise the rights they have. But if there were a real issue of bad practice by a certain employer there might be some form of protest.”

Despite these initiatives, membership across all union organisations is not expected to show any dramatic increase over the past year. At January 2003 membership was down by 0.2% on the previous year – an indication that new recruits are still significantly offset by members lost from the traditional union heartland of the manufacturing industry.

Another aspect of the way the union movement is adapting to the new workplace is the increasing establishment of international links. While Brewster claims that unions are fundamentally national bodies and lagging well behind employers in the creation of multi-national organisations, Stefan Martin cites one case where a German parent company came under pressure from its recognised trade union because its UK subsidiary refused to do the same. “The employer didn’t have to do anything, but it was a question of consistency in approach,” Martin says. “

“It’s a trend that will certainly increase where you have global businesses and when the European Works Councils are established you are likely to see representatives from different countries linking up in order to pursue common interests.”

In addition, 2001 saw the first world congress of Union Network International – an organisation that brings together 900 worldwide unions and boasts 15.5 million members. With a stated aim of making union members global players, strategic objectives include the promotion of union organisation and recruitment, the negotiation of global agreements with employers where possible and the development of solidarity campaigns.

Naturally, the effectiveness of such an organisation has yet to be seen but paths have been made into the global telecoms and call centre industries.

Even this global perspective need not be a great source of concern for employers. “What should always be remembered is that trade unions have got a lot of interests in common with their employers,” says Brewster.

“There may be some areas of dispute but it’s in the interests of everyone for the employer to be successful and to beat the competition.”

Indeed, some benefits of unions in the workplace are unquestionable. In the UK there are more than 200,000 health and safety union representatives and about 5,000 union learning representatives who dedicate their time specifically to looking after and developing the skills of their members.

In addition the TUC has taken on an active role in the creation of employment law – not through lobbying and protesting – but by negotiating and working alongside the CBI.

The Teleworking Code of Practice and framework agreements on Information and Consultation and flexible working have been developed through partnership talks between the TUC and the CBI, with the Government taking the role of chairman.

But what about the traditional collective negotiation role of the unions?

Stephen Brown of employment lawyers Latham & Watkins says: “Two years ago I would have said in my experience it is easier to do a large-scale deal with your workers if the unions are there. Often the unions have had a lot of experience working on such deals, they know commercially what the market will stand and I’ve had better success and a smoother route to an agreement when unions have been involved.”

Brown’s experience is understandable. Any attempt to negotiate or renegotiate terms and conditions with a group of employees is going to be easier if there is an officially recognised bargaining panel with whom any agreement will be all-encompassing and final.

Where Brown sees this benefit being compromised – and where even the unions realise they are starting to have problems – is when the unions lose touch with the members they are supposed to be representing.

Where does HR come in?

While some employers seem instinctively resistant to union organisation in their workplace a recent report from the TUC suggested that companies adopting

US-style union-busting techniques were in the minority.

Bargain or Bust? Employer responses to union organising found signs that employer opposition is increasing in the UK but there was cause for optimism for the future of unions.

Paul Nowak, of the TUC’s New Unionism Project Team, says the number of workplace recognition deals has gone through the roof in the past five years. But he acknowledges that, to some extent, these recognitions have been “the low-hanging fruit” – taking place in organisations that have not exactly been hostile to the idea.

Given the extra resources that can be brought into the workplace through union involvement – health and safety reps, education support, a worker’s representative body that make consultation with a large workforce easier – it could be argued that employers should seriously consider their position before devoting resources to an anti-union stand.

According to Chris Brewster, even negative responses to Information and Consultation Directive legislation will be seen as a lot of fuss over nothing. “I’ve worked with a few of these organisations in Europe,” he says. “Legislation plays a big part is establishing the organisation, but once it is up and running the official stuff goes into a drawer and no one goes back to it. Who’s going to complain if it works well?”

Relevant legislation

Acts of parliament

  • Health and Safety at Work Act 1974

  • Trade Union and Labour Relations (Consolidation) Act 1992

  • Employment Rights Act 1996

  • Employment Relations Act 1999

  • Employment Act 2002

  • Welfare Reform and Pensions Act 1999

Statutory instruments

  • Safety Representatives and Safety Committee Regulations 1977 (SI 1977/500)

  • Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1974)

  • Health and Safety (Consultation with Employees) Regulations 1996 (SI 1996/1513)

  • Occupational Pensions Schemes (Disclosure of Information Regulations 1996 (SI 1996/1655)

  • Working Time Regulations 1998 (SI 1998/1833)

  • Occupational Pensions Scheme (Contracting-out) Regulations 1996 (SI 1996/1172)

  • Transnational Information and Consultation of Employees Regulations 1999 (SI 1999/3323)

  • Trade Union Recognition (Method of Collective Bargaining) Order 2000 (SI 2000/1300)

  • Recognition and Derecognition Ballots (Qualified Persons) Order 2000 (SI 2000/1306)

European community materials

  • Council Directive 93/104/EC concerning certain aspects of the organisation of working time

  • Council Directive 94/95/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees

  • Council Directive 97/74/EC extending to the United Kingdom of Great Britain and Northern Ireland, Directive 94/95/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees

  • Council Directive 98/50/EC amending Directive 77/187/EC on the approximation of the laws of the Member States relating to the safeguarding of employee rights in the event of transfers of undertakings businesses or parts of businesses

  • Council Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies

  • Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings businesses or parts of businesses

  • Directive of the European Parliament and of the Council 2002/73/EC establishing a general framework for informing and consulting employees in the European Community

Statutory codes of practice

  • Health and Safety Commission Code of Practice: Safety representatives and safety committee (1978)

  • Health and Safety Commission Code of Practice: Time off for the training of safety representatives (1978)

  • Code of Practice: Access to Workers during Recognition and Derecognition Ballots (2000)

  • Acas Code of Practice 1: Disciplinary and Grievance Procedures (2000)

Compiled by Stefan Martin, Allen & Overy

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