FAIRNESS AT WORK WHITE PAPER - PREPARING A RESPONSE - 1998

This discussion paper is the summary of a Unions 21 seminar for union researchers, held jointly with Ruskin College Oxford, in early July 1998. Many of those attending were engaged in preparing their unions' submissions to the DTI on the Fairness at Work White Paper. They heard presentations from Lord McCarthy, Peter Mitchell from the TUC, Damien McCarthy from Russell, Jones and Walker, Geoff Thomas from Thompsons, and Katherine Hughes from Ruskin College. This paper has been prepared to help inform that process and to provide some easily accessible detail from the White Paper.

The seminar looked at the white paper from three angles. First the overall approach; the context of the white paper and the tension between its argument and its content. Secondly, the likely impact of the white paper legislation in general, and the parts of the white paper that deal with union recognition in particular. Thirdly, universal representation, which refers to where the white paper sweeps up all those European Directives dealing with representation as universalities as against trade union representation.

The overall approach

The white paper approach is to look at workers as "partners", unions as the "friends" of individual workers, and the need to promote "fairness" at work.

The white paper talks a great deal about partnership. But this tends to refer largely to partnership between workers and employers, rather than between the trade unions and employers. This type of partnership is not there to be enforced by law, but arises because management needs to appreciate that workers should be treated as partners in order to get the best out of them.

Unions are not seen a means of rebalancing the power of government, or as forces to reverse the natural collective weakness of workers against the natural power of employers. They are viewed as friends for individual workers that will help them gain their individual rights. And although the white paper says a great deal about fairness, it is not defined. It assumes that it is coming to be accepted as a kind of industrial solvent that holds both "partners" and "friends" together.

White paper content

The active purposes in the white paper are best divided into four sections:

1 New rights for individuals, which is subdivided into non-representative rights and representative rights

2 Relaxations in union regulation plus membership assistance

3 Concessions to employers

4 Possible future legislation.

This formulation approaches the presentation of the white paper contents differently from that of the government, which divided it into individual, collective and family friendly policies.

1 New rights for individuals

a) Non representative rights and protections

1. Reduce the qualifying period for unfair dismissal to a year (3.10)
2. Abolish the maximum limit on unfair dismissal compensation (3.5)
3. Index link awards and payments (3.8)
4. Extend maternity leave to 18 weeks and align with maternity pay (5.14)
5. Extend maternity and parental leave after one year (5.19)
6. Contract of employment to continue during maternity and parental leave unless terminated by severance (5.21)
7. Similar rights to return after parental leave as maternity leave (5.22)
8. Three months parental leave for adoption (5.23)
9. Time off for 'family emergencies' (5.29)
10. Prohibition of 'waivers' in fixed term contracts (3.13)
11. Unfair Dismissal protection for lawful strikers (4.22)
12. Protection against trade unionist discrimination 'by omission' (4.25)
13. Prohibition of blacklisting (4.25)

b) New rights already embodied in separate legislation

14. National minimum rates of pay (3.15)
15. UK protection for 'whistle-blowers' (3.11)
16. An arbitration alternative to alleged unfair dismissal (3.4)
17. Implementation of the Working Time Directive (3.15)
18. Implementation of the Young Workers' Directive (3.15)

C) Representative rights and protections

Universal rights

1. Right to be accompanied by fellow employee or TU representative in grievance or discipline procedures (4.29)
2. Representation rights in European Works Council (4.4)
3. Similar rights in firms covered by the European Company Statute (4.5)
4. Representative rights for information and consultation when redundancies are planned or business is transferred (4.32)
5. Extension of safety committee representation to non-union groups
6. Collective and Workforce Agreements as a means of modifying the operation of the WTD

Union based rights

7. Recognition rights where unions have achieved:
   1. 'reasonable support'
   2. 50% membership card count
   3. 40% of the roll plus 50% plus 1 of the turnout (Annex 1)

Using this approach to the contents it is possible to identify some new rights for individuals which have been introduced from other types of legislation but are swept up in Fairness at Work. These give workers rights against employers and therefore legitimately can be added although they are not described and analysed in the white paper. In total there are 25 new rights against employers.

Representative rights are divided into universal rights and union rights. One of the most important is the right to be accompanied by a fellow employee or trade union representative in grievance of discipline and procedures. The other universal rights, are largely derived from European directives, including rights emanating from the Works Council Directive. Plus rights for information or consultation in redundancies and business transfers. This results from an ECJ decision, which extended this right from only trade union firms to all firms and workers. Also something must now be done about safety committees where non-unionists must also have similar rights.

Rights that are available to trade unionists also require union members to act as individuals. This arises because individual members have to demonstrate their support for trade union recognition, or that they are members of unions to win recognition, although the union can trigger the process.

2 Relaxation in union regulation plus membership assistance

1. No need for names in strike ballots (4.27)
2. Abolition of Commissioner for Industrial Action (4.31)
3. Crotum's duties to CO (4.31)
4. Check-off re-authorisation repealed (4.9)
5. Right to apply for determination of disputed recognition claim (Annex 1)
6. Protection for employee representatives against action to enforce union rights (4.19)
7. Public funds for union training and the training of representatives (2.7)

In many of these cases the government is slightly reversing the process which was introduced in the 1980s. For instance it is no longer necessary to give in names of those taking part in strike ballots and they have abolished the Commission for Industrial Action, and check-off re-authorisation has been abandoned. These things will be beneficial for trade unions.

3 Employer concessions

1. Employers to 'continue to have the rights, should they so wish, to agree terms with their employees' (4.20 - see 12. above)
2. 'A similar procedure' to that for recognition to cover employer demands for de- recognition (4.18)
3. Similar arrangements for the public funding of training for employer representatives to those provided for employees (2.7)
4. Small firms (less than 20) exempt from union recognition rights

These are items that provide balance in the white paper and lean towards the employers. They were argued for by employers bodies such as the CBI. The most important right posed is a provision which allows employers continue to have the right, should they so wish, to confirm terms with their employees. Some employers will be interested in this separate form of individual bargaining in the hope that their employees will drop out of the union.

Another potentially difficult concession to the employers is for a similar procedure to cover employer demands for de-recognition to that for recognition. This proposal is at present very open ended. For example will the right only apply to reverse recognition agreements that have been won using the new statutory procedure? Or in the case of a 50 per cent card check, does this mean automatic derecognition if membership falls below the half way mark? Or can employers constantly require card checks? A key problem is that a right to escape a legal requirement is built in to legislation where conditions change over three or more years, may be appropriate, but this might apply to areas where recognition came about in a perfectly voluntary way.

The likely impact on collective bargaining

Much will depend on how far unions are able to satisfy the various criteria and conditions required to qualify for a recognition award. In effect the white paper provides a series of hoops which they must somehow jump through to obtain an effective form of recognition from a recalcitrant employer. They may be summarised as follows:

• prima facie evidence of reasonable support
• the determination of an appropriate bargaining unit
• counting membership cards and establishing a majority
• adequate access and campaign facilities
• achieving 40 per cent of the roll and 50 per cent plus one of the turnout
• deciding the form of the ballot
• obtaining an order of specific performance, if required
• proving contempt of court for breach of procedure
• an effective sanction when there is a failure to agree.

There is much detail to work through under each of these headings. In the case of the requirement for prima facie evidence of reasonable support an assessment will have to be made, presumably by the Central Arbitration Committee (CAC). This will require guidelines on what reasonable support is, because elsewhere in the white paper it states that insubstantial claims must be deterred.

On the bargaining unit they must take particular account of the bargaining unit's compatibility with the need for effect management. And the CAC will have to consider the views of the employer as well as those of the union. It will be desirable to establish national or local bargaining arrangements that as a general rule avoid small fragmented bargaining. They will also have to take into account the characteristics of the employees in the bargaining group and any other employer or employees the location of the bargaining unit. The potential for the CAC to be blocked with work is clearly very high.

Counting the union membership cards will depend on establishing a rational bargaining unit. But in the great mass of British industry that is not the situation.

In order to give employers and unions an equal chance in the campaign to win 40 per cent of the role and 50 per cent plus one, there will need to be equal access and campaign facilities among those voting. And clear guidelines will be needed for how the actual voting will take place - at work or by post, for example.

However even after all the processes have been followed it is possible that an employer could still refuse to recognise, and this is where the sanctions come in. A union could seek an order of specific performance from the CAC and if the employer ignores it they will be in contempt of court. But that would be contempt of court for breach of procedure and breach of procedure means the employer would have had to refuse to meet. And non-productive meetings are commonplace.

4 Possible further proposals

a) Non-representative rights and protections

1. Whether aggravated damages should be available for additional and special awards (3.7)
2. Whether waivers in fixed term contracts affecting redundancy payments should be abolished (3.13)
3. How to tackle the potential abuse of zero hour contracts with out undermining labour flexibility (3.16)
4. Whether, as in the case of the National Minimum Wage, other employment rights should be extended to protect 'all those who work for another person, not just those employed under an employment contract' (3.18)
5. How to implement the protection against dismissal for those taking part in a lawful strike (4.23)
6. How to simplify the notice for maternity leave (5.17)
7. The 'options' for implementing the Parental Leave Directive (5.16)
8. Dealing with the 'particular problems' of small firms in complying with the Parental Leave Directive (5.26)

b) Representative rights and protections

1. Whether training should be automatically covered by an award of union recognition (4.18)
2. How the procedure for de-recognition should work (4.18)
3. How to simplify the law and Code of Practice on industrial action and notice (4.26)

It was felt that the proposed universalist forms of representation rights are very important and could form the basis for a great deal of union activity, which in the medium term might be at least as important as the formal provisions allowing for recognition in the old sense. This is particularly enhanced by the right to be accompanied by fellow employees or trade union representatives in grievance or disciplinary procedures. In this situation unions can use a universal right in a selective way. In addition unions have representation rights in the European Works Council and the rights in the European Company Statute, plus the benefits that have arisen the ECJ decision on rights of representation on redundancies and transfers. Non-unionists will also get these rights and now the Labour Government is offering to do something about the creation of committees to deal with safety and redundancy, where trade unionists and non-unionists would combine together.

These committees would not be bargaining units, in some areas they would be trade union based, in others they would be universalist, but there is no reason why trade union members should not be the representatives. There is no reason why unions should not seek to get a work based consultative committee which inherits all these rights. But there is one ideological assumption which trade unionists have to dispense with if they want to take full advantage of the new possibilities. And that is to be prepared to work with and for non members.

Union members are now facing the reality that every year since 1979 the density of trade union membership has gone down by 1.25 per cent. At this rate by the time the Labour Government goes to the electorate it won't be 31 per cent, but nearer 25 or 24 per cent.

Therefore when trade unionists enter a universalist, electoral process and are elected as representatives of a group that includes non members this should be seen as an opportunity for recruitment and an extension of union influence. This white paper is not the best news the trade union movement has ever had, but it is the best news the movement has had for a very long time.