Union recognition: UK social partners reach partial agreement

In December 1998, the Confederation of British Industry and the Trades Union Congress published a joint statement on statutory trade union recognition in advance of the UK Government's forthcoming White Paper on the issue. We highlight the areas of agreement and disagreement, and assess its likely influence on government policy.

The UK Labour Government is committed by its election manifesto to obliging employers to recognise a trade union where this is supported in a ballot by employees (UK9704125F). Details of how the Government intends to implement this proposal are expected in a White Paper on "fairness at work" to be issued in early 1998, and legislation is planned for the 1998-9 parliamentary session. As part of the policy-making process, government ministers have encouraged the Confederation of British Industry (CBI) and the Trades Union Congress (TUC) to engage in talks to resolve some of the practical problems raised by recognition legislation, making it clear that an agreed approach is likely to prove persuasive. The Government also indicated that if the two sides failed to agree it would proceed to issue its own proposals. Discussions between the CBI and TUC took place during the autumn of 1997 and concluded in early December with the publication of a joint statement identifying not only issues on which the parties could agree but also significant areas of continuing disagreement.

Background

In the UK, the recognition of trade unions for collective bargaining purposes has traditionally been at the discretion of individual employers - a factor made more important by the decline of industry-wide bargaining - and there is currently no legal obligation on employers to recognise and bargain with unions. During the 1970s, both Conservative and Labour Governments introduced statutory recognition procedures, whereby unions could refer disputed recognition issues to third-party determination, but these encountered a range of intractable operational difficulties. The relevant provisions of the Employment Protection Act 1975 were repealed in 1980 by the Thatcher Government, having proved to be controversial and largely ineffective. Particular problems included disagreement over key issues such as: the level of employee support needed for recognition and criteria for determining the appropriateness of the claimed bargaining unit; inter-union competition; extensive litigation; non-cooperation by some employers; and ineffective sanctions.

Despite this experience, the TUC, motivated by a sustained decline in trade union recognition over the 1980s and 1990s, has campaigned for a new statutory procedure as part of a broader employee representation package including a right to individual representation and provision for consultation rights short of full collective bargaining. Employers' organisations in the UK have opposed the reintroduction of statutory trade union recognition, arguing among other things that constructive relationships are based on trust and goodwill not legal imposition.

Key points of the joint statement

In their December 1997 joint statement on statutory trade union recognition, the CBI and TUC agree the following:

  • Trade union recognition should be voluntary wherever possible, and it is preferable for disputes to be resolved through conciliation by the existing Advisory, Conciliation and Arbitration Service (ACAS).
  • Where this is not possible, there should be "alternative infrastructure" to deal with union claims for recognition. While the joint statement notes that the CBI has not made a specific proposal on this, the TUC wants a new "Representation Agency" to be established and the statement uses this terminology.
  • The Agency should have powers not to proceed with claims where an inter-union dispute is involved, where the union has unreasonably refused conciliation or where the claim appears "frivolous". Disputes between TUC-affiliated unions should be settled via TUC rules and procedures, not legislation.
  • A union should not be permitted to resubmit a comparable claim for at least three years after a previous claim has failed.
  • The existence of some other "non-independent form of employee representation" should not prevent a union seeking recognition under the statutory scheme. The parties "see no reason why non-union channels of representation cannot exist alongside trade union collective bargaining".
  • Under the statutory procedure, once the bargaining unit has been determined (see below), the level of support for collective bargaining should be assessed by a ballot covering all workers in the bargaining unit, involving "some element of independent scrutiny". (The TUC, however, proposes an exception to the requirement for a ballot where the union can demonstrate majority membership in the bargaining unit.)
  • Following a recognition award, there is an expectation that bargaining will take place, and both the CBI and the TUC agree that there will need to be remedies available where an award has not been complied with.

The joint statement also records some significant areas of disagreement. Crucially, there is no consensus on defining the prospective bargaining unit (and therefore balloting constituency). According to the CBI, the bargaining unit should be proposed by the employer, based on existing business structures. The TUC, on the other hand, argues that a range of additional factors should be taken into account, including the wishes of the workforce concerned, and that where the scope of the bargaining unit is disputed, the new Representation Agency should make a ruling. The two organisations also take differing approaches to the subjects which should be covered by collective bargaining following a recognition award. Prior to the May 1997 general election, the Labour Party proposed that these should be pay, hours, holidays and training. The CBI, however, believes that the inclusion of training would be unsuitable whereas the TUC sees this list as "rather simplistic".

Other differences identified include the following:

  • the CBI would like to see small businesses excluded from the legislation, but this is not supported by the TUC;
  • the TUC is against a proposal by the CBI that, to submit a recognition claim, a union should be required to demonstrate support from 30% of the employees to whom the claim relates;
  • the CBI believes that a majority of all employees balloted should be needed to achieve a recognition award whereas the TUC thinks the test should be the majority of those voting; and
  • the CBI believes that the existence of new statutory procedures should remove the need for industrial action in support of union recognition and that the law (which currently allows such action) should be changed to reflect this. The TUC considers that legal immunity for such action should remain unaffected.

However, a vital compromise appears to have been reached in respect of derecognition. The statement records the CBI's view that employers should be able to apply for a derecognition ballot with the support of 30% of the employees in the bargaining unit. There is no explicit rejection of this proposal by the TUC. Indeed, TUC acceptance appears to be implicit in the subsequent statement that: "Both the TUC and the CBI stress the need for ACAS conciliation in these instances, and the TUC stress the need for the status quo to operate while there is an application to change recognition arrangements. The CBI and the TUC agree that the three-year rule for reballoting should apply to employers as well as unions."

Commentary

While more than just an "agreement to disagree", the joint statement represents only the most tentative step towards "social partnership" between the CBI and TUC, although it is hard to imagine a more difficult topic with which to start, given the important issues of principle it raises for the two organisations. For the TUC, such discussions probably offered the best chance of exerting a strong influence on the new recognition provisions. The CBI, while remaining opposed to statutory union recognition in principle, recognises the Government's commitment to legislate and entered the discussions with a view to creating a clear and workable set of rules. The result falls short of a blueprint for a new statutory recognition procedure which could have been used as the basis of the Government's legislative proposals, but the discussions have arguably narrowed the gap between business and unions over the issue, given a lead on certain key aspects of the design of a new legal framework and clearly delineated which issues are potentially the most controversial. How much influence the joint statement has had on Government thinking will be revealed when the White Paper, due out in early 1998, is finally unveiled. (Mark Hall, IRRU)

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