Fairness at Work A Critical Analysis of the Employment Relations Ac

by Novitz, Tonia; Skidmore, Paul

• ISBN13: 9781841130835
• ISBN10: 1841130834
• Format: Paperback
• Copyright: 2001-03-01
• Publisher: Hart Publishing

Summary

From the White Paper on Fairness at Work,it seemed that the enhanced protection of collective rights was central to New Labours industrial relations settlement. Reforms were promised relating to diverse matters such as blacklisting, discrimination against trade union members, trade union recognition and industrial action. Moreover, the Blair Government sought to portray trade unions as suitable representatives of workers in the context of grievance and disciplinary procedures, appropriate recipients of information and consultation and potential contributors to a new culture of labour relations. This culture was encapsulated in the term partnership.This book examines the rhetorical claims made in the White Paper (and later in Parliament) alongside the actual reforms contained in the Employment Relations Act 1999. These developments are studied in their broader context, including Britains recent industrial relations history and the perceived need to find a third way which navigates between pre-existing Labour and Conservative ideologies. The pressures placed on British policies by international and European organisations are considered as are the other social, political and economic dynamics which shaped the Governments policies. A detailed account of the new statutory provisions is provided, together with an analysis of their potential impact. A careful and detailed analysis of these reforms reveals the limitations of New Labours industrial agenda. Ironically, these legislative changes are primarily individualistic in their orientation. It is the individual employer and employee who constitute the chief parties to the new partnership which is to be the employment relationship. Trade unions are not social partners essential to the protection of workers interests but, rather, potentially useful mediators who must prove their value by acting responsibly and co-operatively. Additional rights and protections are bestowed on the individual trade union member, but the trade-off would seem to be greater responsibilities for trade unions. Ultimately, individual choice is given priority over collective bargaining and action. The difficulties which will arise from such a limited agenda are explored here.This book is intended to have a broad readership. It will be of interest to academics and students of labour law, industrial relations, politics and related disciplines. Its aim is to give them an opportunity to place in context what New Labour is doing in the field of employment law and what it is not prepared to do.

Author Biography

Tonia Novitz is Professor of Labour Law at the University of Bristol.
Paul Skidmore is a Lecturer in Law at the University of Bristol.

Table of Contents

Preface	v
Table of Cases	xiii
Table of Legislation	xvii
Table of Abbreviations	xxxi
Introduction	1	(22)
The Case For ``Collective Rights''	2	(3)
The Pressures on New Labour	5	(8)
``No going back''	6	(2)
A flexible and efficient labour market	8	(3)
Appeasing the employer and trade union lobby	11	(2)
The ``Solution'' Presented by ``Partnership'' : Its Dimensions	13	(7)
Who are the partners?	15	(1)
The centrality of individual ``choice''	15	(1)
The ``voluntary'' aspect of partnership	16	(1)
Partnership as a non-conflictual relationship	17	(1)
Rights and responsibilities	18	(2)
The Application of these Principles in the Employment Relations Act 1999	20	(3)
Individual Rights to Freedom of Association	23	(24)
Introduction	23	(1)
The Right to Be Accompanied in Disciplinary and Grievance Hearings	24	(5)
The content of the right	25	(1)
Support for trade unions?	26	(1)
Improving workplace relations?	27	(2)
Protection From Blacklisting	29	(3)
Weaknesses of the blacklisting provisions	30	(1)
Strengthening freedom of association?	31	(1)
Protection for Trade Union Members Against Discrimination	32	(6)
The Wilson/Palmer litigation	34	(1)
Acts versus omissions	35	(1)
Incentives to contract out of collective bargaining	36	(2)
Protection for Workers in the Recognition Process	38	(1)
Rights of Striking Employees to Protection from Unfair Dismissal	39	(4)
Participation in industrial action after the Tory years	40	(1)
Circumscribed New Labour protection	41	(1)
Implications for partnership	42	(1)
Conclusion	43	(4)
Trade Union Autonomy	47	(14)
Introduction	47	(1)
Independence of Trade Unions Under International and Domestic Law	48	(2)
Democratic Procedures Within Trade Unions	50	(5)
Historical background	50	(2)
International labour standards	52	(1)
The refusal to return to self-regulation	53	(2)
Scrutiny of Trade Union Governance	55	(3)
CRTUM, CPAUIA and the Certification Officer	55	(1)
The rationale for reform	56	(2)
Conclusion	58	(3)
Trade Union Recognition and Derecognition	61	(68)
Introduction	61	(4)
Historical and Political Context	65	(9)
``Mistakes of the past'': the historical legacy	65	(1)
the Industrial Relations Act (IRA) 1971: trade union resistance	65	(1)
provision for recognition and derecognition under sections 44-50 of the IRA 1971	66	(1)
the trade union campaign for repeal of the IRA 1971	66	(1)
the Employment Protection Act (EPA) 1975: employer resistance	67	(1)
promotion of recognition under sections 11-16 of the EPA 1975	68	(1)
employer non-co-operation and judicial review	69	(3)
The ``Joint Statement'' of the TUC and CBI: the political ``trade-off''	72	(1)
why did these negotiations take place?	72	(1)
the limited content of the agreement	73	(1)
The Content of Schedule A1	74	(53)
Procedures for achieving trade union recognition and derecognition	75	(1)
voluntary and compulsory elements of the recognition and derecognition procedures	76	(1)
voluntary agreement and the rhetoric of ``partnership''	76	(1)
the mechanisms for enforced negotiation	77	(1)
bargaining in the shadow of the law	78	(2)
Formal criteria for requests and applications	80	(1)
request for recognition to one lone employer	81	(1)
the exclusion of ``small firms''	82	(3)
limitations placed on applicant unions	85	(2)
numerical thresholds for establishing workplace support	87	(1)
the rhetoric of ``choice'' and ``democracy''	88	(1)
determination of the bargaining unit	89	(1)
the baseline of support	90	(2)
automatic recognition	92	(1)
``majority support'' in a ballot	93	(2)
the level of support required for derecognition	95	(2)
the costs and logistics of balloting	97	(1)
securing employer co-operation	98	(1)
the employer's three duties: co-operation, access and provision of workers' details	98	(2)
the sanction for an employer's failure to comply with the three basic duties	100	(1)
The consequences for collective bargaining	101	(1)
the obligation to establish a method of bargaining	102	(1)
bargaining over the procedure agreement	102	(1)
imposition of a default procedure agreement by the CAC (and the Secretary of State)	103	(1)
even-handed treatment of employer and union interests?	104	(1)
access to information	105	(1)
no duty to bargain with a view to reaching agreement	106	(1)
the potential to undermine collective bargaining by incentives offered to individual workers	107	(1)
enforcement of the bargaining procedure	108	(1)
the unrealistic remedy of specific performance	108	(1)
alternative remedies in tort	109	(1)
the narrow scope of designated subject matter for collective bargaining	110	(1)
the initial policy stance of the interested parties	110	(1)
a comparison with the current content of section 178 of TULRCA 1992	110	(2)
the standard content of recognition agreements	112	(1)
the minimum/maximum problem	112	(1)
consequences for the consultative status of trade unions	113	(2)
Enforcement of the collective agreement relating to terms and conditions of employment	115	(1)
legal enforcement of collective agreements	116	(1)
incorporation of the terms of a collective agreement into the individual contract of employment	117	(1)
The institutional actors in the statutory recognition procedure	118	(1)
the Advisory Conciliation and Arbitration Service (ACAS)	119	(1)
the ``general duty'' of ACAS	119	(1)
a different part to play in statutory recognition	120	(1)
the Central Arbitration Committee (CAC)	121	(1)
the creation of a new statutory duty	122	(1)
the making of new appointments	123	(1)
new statutory procedures for hearings	124	(1)
intervention by Government in CAC decision-making	125	(2)
Conclusion: The Implications of Schedule A1	127	(2)
Industrial Action	129	(20)
Introduction	129	(1)
The Failure to Introduce a Positive Right to Strike	130	(3)
Trade Union Responsibility for Protection From Dismissal	133	(3)
The Scope of Statutory Immunity for Trade Unions	136	(11)
The lawful aims of industrial action	137	(1)
the subject matter of a ``trade dispute'' and ``political strikes''	137	(2)
a dispute between workers and their employer: the problem of secondary action	139	(1)
industrial action over recognition	140	(1)
Changes to balloting and notification requirements	141	(2)
limited flexibility in balloting requirements	143	(2)
notification which helps employers to ``make plans''	145	(2)
Conclusion	147	(2)
A Revised Role for Trade Unions: Information, Consultation, Representation and Partnership	149	(24)
Introduction	149	(2)
Information and Consultation of Recognised Trade Unions	151	(16)
Training	153	(1)
the procedure for consultation over training	154	(1)
enforcement of the procedure	155	(1)
Transfers of undertakings and collective redundancies	155	(1)
the legislative history	156	(1)
the 1999 Regulations	157	(1)
sanctions available for failure to inform or consult	158	(1)
European Works Councils	159	(2)
the European Works Councils Directive (EWCD)	161	(2)
Transnational Information and Consultation of Employees Regulations 1999 (TICER)	163	(1)
designation of ``employees' representatives''	163	(1)
trade union representation on SNBs	164	(1)
default provision for trade union representation on EWCs	164	(1)
trade union representatives as ``experts''	165	(1)
enforcement procedures	165	(1)
evaluation	165	(2)
Trade Unions to ``Accompany'' Individuals	167	(1)
The Partnership Fund	168	(1)
Conclusion	169	(4)
Conclusion	173	(8)
New Labour's ``Partnership'': The Role Envisaged For Trade Unions	173	(1)
The Limited Scope of New Labour's ``Collective Rights'' Reforms	174	(2)
The Case for Further Reforms	176	(5)
Improvement of individual rights to freedom of association	177	(1)
Further reform of the law on trade union governance	178	(1)
The need for review of the statutory scheme for trade union recognition	178	(1)
Removal of certain restrictions on industrial action	179	(1)
Expansion of trade union participation in information and consultation procedures	179	(2)
Annex---Commencement Orders made under the Employment Relations Act 1999	181	(2)
Bibliography	183	(8)
Index	191