The liberty to organise in Britain

Abstract

FOCUS □ LABOURLAWREFORMANDTHE ORGANISING AGENDA The liberty to organise in Britain I adopted step the From collective Conservative Government approach restricting 1979-1997 a step labour law by to the Conservative Government adopted a step by step approach to restricting collectivelabour law GARY MORTON isabarrister at7New Square Chambers, London and former union organiser InAct general 1974 (IRA) the election 1971 Conservative was and repealed the Government Industrial bytheincoming Relations lostthe generalelectionand the Industrial Relations Act(IRA) 1971was repealedbytheincoming Labour Government. From 1979-97 the Conservative Government adopteda stepbystep approachto restructuring collectivelabourlaw. Over 18 years the Conservative Government embarked on a permanent revolution publishing sevenGreenPapers,sixWhitePapers,and one Charter; revoking the 1946 House of Commons FairWages Resolution and the 1972 Industrial RelationsCode of Practice;and enactingnine ActsofParliament. Statutory support fora liberty to organise endedin 1980withtherepealofthe statutory recognition procedure in the Employment Protection Act(EPA) 1975and the passingoflegislation making pre-entry and postentry closedshopsunlawful. From1990 onwards(if not earlier)the TUC warmedto the conceptof a policyof phased recognition leading to full recognition which crystallised in the 1995 TUC document Your Voiceat Work'.It proposed threebroad new rights: (i) a universal right to representation and theright ofunionstoorganise andhaveaccessto the workplaceand protection for individuals against victimisation; (ii) consultation rights when 10 percent of theemployeeswere unionmembers ; and (iii) collectivebargaining rights if a majority ina ballot,orsomeother meansofsurveyingopinion , wanted collectivebargaining rights. The right ofrepresentation was confined to a recognised unionifthere was one. By 1997 theTUChadimplicitly acceptedtheConservative Government's restrictions on workers' liberty to associateand liberty to strike butwas in favour ofa limited liberty forworkers to organise. This articledeals withtheNew LabourGovernment andworkers' liberty toorganise. The New Labour period The May 1998 4 Fairnessat Work' WhitePaper containeda proposedright to accompaniment. This alarmedTheFinancial Timeswhichin an editorial dated22May1998saidthat '...anyunion member ... willhavetheright tounionrepresentationduringgrievanceor disciplinary procedures .Thatlast...provides theunionswitha toeholdinanycompany intheland,and theCBI is right ...that... itshouldonlyapplytodisciplinary matters, notrunof themillgrievances. It could prove a powerfulrecruiting sergeantfor the unions...'. Journalist BarrieClements writing in TheIndependent on 11July 1998confirmed that theCBI,themainemployers' organisation, were concernedthatwhereunionswere not recognisedthey couldprevail on their members toregistergrievanceson pay which,withsufficient numbers, couldbecomea collective wage claim. The Government tooktheCBI's concerns into accountin theEmployment Relations Act(ERA) which came into forcein July1999. As the Employment Bill went through Parliament the rightto representation was whittled down by defining a grievanceas a dutyowed by an employer toa worker, e.g.a statutory entitlement to equal pay.Thismeansthatemployees cannot raisea grievance overpayunlessthey havea contractual orstatutory risetosucha payrise.There is a rightto accompaniment by an employed union official, or a certified lay union official employedby thatemployer, whichcame into cameintoforce inSeptember 2000.Compensation for a breachofthis right isup totwoweekswages cappedat£350a weekfrom 1February 2009.This is derisory compensation. Crucially, theright to accompaniment is a union right whichis not dependent on an employer recognising a union. However, since2000theGovernment has introduced Regulations on flexible working and age andinbothcasestheright tobe accompanied has been confined to a fellowworker and thereferencetounionrepresentation omitted. The ERA1999is thethird attempt at statutory recognition. This current versionhas more in commonwiththeIRA 1971thantheEPA 1975 andlikestatutory recognition intheUnited States it incorporates employer freespeech rights (i.e theability ofemployers and their agentssuchas employment 'consultants' the BurkeGroup,to campaignagainstunionrecognition). Legitimate campaigning activity includes threatening toshut thecompanyiftheworkers votein favour. The proceduregivesemployers the right to choose theworkers' union.The levelofsupport forthe workers' choiceis irrelevant iftheemployer has helped to create and recognisea dependent 'union'(i.e News International's recognition of the News InternationalStaff Association). Alternatively, an employercan recognisean unrepresentative independent unionwithno or veryfewmembers inthatcompany. The NationalUnionofJournalists' application forrecognition by theSportsDivisionof Mirror GroupNewspapers Ltdwas rejected as thecompany recognisedan associationwithjust one member. The CACfoundthatoverhalfthejournalists wereintheNUJ. TheNUJ's appealstothe HighCourt and Court ofAppealwererejected. If theCACdeclaresthata unionis recognised then theemployer hastoengageina dialogue with the union througha bargainingprocedure.The employer is notobligedto agreeto changesto termsand conditions of employment (i.e. pay, hoursor holidays). Thereis no recourse to arbitration unliketheEPA1975.Evenwitha legally enforceable contract theobligation ontheemployertonegotiate is purely procedural. TheemployINTERNATIONAL union rights Page 10 Volume 16Issue 2 2009 er'sability to negotiate different terms withindividualsis safeguarded by paragraph18 of the TradeUnionRecognition (Methodof Collective Bargaining) Order 2000.Employers havea statutoryright tocontract withindividual workers tothe detriment ofcollective workers' power. The Government published a consultation paper entitled a 'Reviewof the ERA 1999' in February 2003and proposedthatsection146(3) ofTradeUnionLabourRelations (Consolidation) Act(TULR(C)A...