Modern Rights for Modern Workplaces

TUC Employment Rights Campaign: submission to the Government on the review of the Employment Relations Act 1999

THE ECONOMIC CASE FOR BETTER RIGHTS AT WORK

1 Improving the labour market by giving workers more protections and rights has been consistently opposed by those who argue that they cause unemployment by reducing labour market 'flexibility'. Often what is really meant by 'flexibility' is that it should be easy for employers to get rid of workers at will, pay the lowest wage they can get away with, and refuse to recognize trade unions. This view is however based on assertion, not evidence.

2 When the present government was first elected in 1997 critics immediately forecast that re-regulation of the labour market would cause a massive rise in unemployment and the loss of jobs. The exact opposite has happened. Unemployment has fallen in every year since then from 8 per cent to 5 per cent. The economy has generated 1.3 million new jobs. This should come as a surprise to no one. The evidence from study after study has come to the same conclusion. Better employment protection has no long run impact on the level of employment or unemployment.

3 A study for the OECD in 1996 by Jackman, Layard and Nickell concluded: A Lower employment protection...increases hiring and thus reduces long-term unemployment. But it also increases firing and thus increases short-term unemployment. The first good effect is almost offset by the second bad one. The gains from flexibility are small @ .

4 A similar study by Nickell published in 1997 looked at the underlying causes of differences in unemployment rates across Europe and concluded: A Labour market rigidities which do not appear to have serious implications for average levels of unemployment include...strict employment protection and general legislation on labour market standards @ .

5 Fears that greater employment protection would hurt productivity growth seem very far off the mark. As a recent study by Nickell concluded: A There is no evidence that employment protection slows productivity growth. Indeed, the reverse is more likely'

Re -regulation and job creation in the UK since 1999

6 Some who might concede the historic reality have argued that the labour market of the future will be dominated by new, flexible and more insecure forms of employment for which the old-style social protections are either inappropriate or harmful. The nature of employment in the UK has not changed. The vast majority of people in work - 84 per cent - still work as permanent employees.

7 The big growth in employment since 1997 has been in permanent employee jobs. Nor is it true that on average people are moving from job to job more than they did in the past.

REGULATION AND JOB CREATION IN THE UK 1997-2002

Employment change	Change 1997-2002
	000s	%
Permanent employees	+2027	+9.6%
Temporary employees	- 109	- 6.3%
Self-employment	- 192	- 5.7%
'Portfolio' workers (more than one job)	- 112	- 8.8%
All in work *	+1617	+6.1%

Note: all figures Nov-Jan both years, seasonally adjusted, all ages.

Portfolio workers are included in the employee or self-employed totals

Source: Office for National Statistics

How we compare - job creation, unemployment, and social exclusion

8 Many critics however continue to make unfavourable comparisons with the higher average unemployment rate in the rest of Europe and the lower unemployment rate in the UK and the US, suggesting that the introduction of new European style rights in the UK will undermine 'flexibility' and put UK unemployment up. Today eight out of the twelve Eurozone economies have unemployment at lower or similar levels to the US. Latest figures show Austria, Denmark, Ireland, Netherlands, Portugal, Sweden and Luxembourg all had lower rates. Moreover, like an iceberg, much of the UK’s unemployment problem remains below the surface, the legacy of the previous government’s attempts to massage down the unemployment numbers by pushing people off the claimant unemployment count onto longer term benefits. In 2002 the latter numbered over 2.2 million. This compares with just 1.5 million who fell within the ILO definition of unemployment.

9 The UK has an exceptionally high level of social exclusion by European standards. Indeed, once all those who want a job are taken into account the apparent UK unemployment advantage over the EU disappears. The TUC’s 'want work' rate includes both the ILO unemployed and all those outside the labour market who say they want a job. In 2000 we estimate that the UK want work rate was 12.3 per cent against a EU average of 12.5 per cent. Want work rates were slightly lower in France at 11.3 per cent and in Germany at 9.9 per cent.

WANT WORK RATES COMPARED IN 2000

	Unemployment rate	'Want work' rate
Italy	10.5%	18.3%
Spain	14.1%	18.0%
Finland	9.8%	16.1%
Greece	11.1%	12.6%
UK	5.5%	12.3%
France	9.5%	11.3%
Austria	3.7%	10.3%
Ireland	4.2%	10.2%
Germany	7.9%	9.9%
Denmark	4.7%	8.7%
Belgium	7.0%	7.8%
Sweden	5.9%	7.7%
Netherlands	2.7%	7.3%
Portugal	4.2%	5.4%
Luxembourg	2.4%	4.2%
EU15 average	8.2%	12.5%

Note: want work rates are ILO unemployed plus inactive who say they want a job as share of active workforce plus inactive who say they want a job.

Source: European Labour Force Survey 2000; TUC estimates

10 There is also the abiding myth that European labour markets are sclerotic and incapable of producing jobs. Again, the evidence does not support this. A European wide study by Charles Bean and others published in 1995 found: 'the sclerotic nature of European labour markets is a myth. The reality is very different: one in every six or seven European jobs is created or destroyed each year, a rate which is only slightly lower than in the United States@. Between 1995 and 2000 the European Union created over 10 million new jobs, an increase of nearly 7 per cent. Over the same period employment in the US went up by just over 8 per cent and in the UK by 6.5 per cent.

JOB CREATION COMPARED 1995-2000

Total employment change 1995-2000	%
Ireland	+30.3%
Spain	+15.5%
Netherlands	+15.3%
Portugal	+ 8.8%
UK	+ 6.5%
France	+ 6.3%
Denmark	+ 5.8%
Sweden	+ 5.1%
Belgium	+ 4.9%
Italy	+ 4.9%
Luxembourg	+ 3.3%
Germany	+ 3.1%
Austria	+ 3.0%
Greece	+ 2.6%
EU15 average	+ 6.7%
United States	+ 8.3%

Sources: EU Commission; US Bureau of Labor Statistics

Worker dissatisfaction growing

11 What has changed over the past twenty years has been a steady erosion of rights and protections in the workplace. The share of the workforce covered by collective agreements has fallen, leaving many without an effective voice at work. As a result, workers today feel more discontented than they did ten years ago.

12 Some might find this surprising given the economic success of the past five years, low measured unemployment and no change in either the share of permanent jobs in the economy or their average duration.

13 However, as the OECD pointed out in 1997 the rise in worker insecurity has been associated in the past with weaker trade unions and less comprehensive welfare safety nets: 'insecurity is significantly lower in countries where the unemployment benefit replacement ratio is high, where there is a higher level of collective bargaining, and in countries where collective bargaining is more centralised '

14 A recent assessment of the evidence from the ESRC’s Future of Work project by Robert Taylor concluded: 'today’s world of work is much less satisfying to employees than the one they were experiencing ten years ago. It has also grown more stressful for all categories of employees without exception. Most people say they are working much harder in intensity and clocking on more hours of work than in the recent past'.

15 A report by the Work Foundation published earlier this year came to the same conclusion: 'satisfaction levels have fallen against every measure defining the economic and psychological contract between employees and their workplace.'

16 These findings reveal the shallowness of the view that trade unions are no longer required to give workers an effective say at work. Business school rhetoric about how today’s managers are 'empowering' their workforces though progressive workplace practices is hollow. The reality is that good intentions wither in the face of the relentless demands for more workforce effort from the boardroom and more short-term profits from the City.

17 The constant demand for more from the workforce is often accompanied by breath-taking examples of corporate greed and refusal to accept responsibility. Even when companies fail through managerial incompetence and the workforce faces mass redundancy, directors walk away with huge pay-offs. For those who cling on, the rewards are even bigger.

18 In 1994 a chief executive’s basic pay was 12 times more than the average pay of an employee in his or her company, but by 2001 the chief executive got 18 times more. These figures exclude other long-term incentive payments that directors receive which on average boost their total remuneration by between 15 and 20 per cent. It is no wonder that, as the ESRC project showed, the commitment of workers to their organization is in retreat.

19 There is a warning here. Ministers rightly draw attention to the government’s economic successes. But these claims will be greeted with increasing scepticism and lack of credibility if people can see no improvement in their working lives as a result. Delivering for people at work will not come from relying on the goodwill of Britain’s boardrooms or the priorities of the City or hoping that managers will spontaneously change their ways.

20 Many of the government’s more successful labour market policies have aimed to reduce poverty and make work pay, while ensuring that as many as possible have the skills and education to get better jobs. The evidence is clear that stronger unions and the encouragement of collective bargaining will support both these objectives.

21 As the OECD concluded in 1996 'typically countries with high rates of collective bargaining and trade unionisation tend to have low incidences of low paid employment'. Similar conclusions have been reached in many UK studies, for example, in 1996 Machin concluded 'the countries which have seen the largest rise in wage inequality are those where the influence of labour market institutions have declined most'.

22 A more recent study by Metcalf published in 2000 confirmed trade unions as having a powerful 'sword of justice' effect in the labour market: "Unions narrow the wage differentials between women and men, blacks and whites, those with health problems and those without, and between manual and non-manual workers. Unions remain a major egalitarian influence on the British labour market"

23 A study by Booth and others in 1998 concluded: 'workers who are not covered by a union collective agreement are significantly less likely to be involved in workforce related training to improve or increase their skills'. The same study went to quantify this impact: 'A man in a non union job is 9 per cent less likely to receive training than an otherwise identical man in a union covered job, while a woman in a non union job is 11 per cent less likely'.

24 The government’s overriding economic priority is to improve the productivity of the UK economy. There is clear evidence from the latest Workplace Employment Relations Survey for 1998 that partnership combining high-level management practices and strong unions in the workplace delivers higher productivity, higher profits and greater job stability. However, such workplaces are not yet common in the UK - a key reason why productivity growth has been disappointing.

25 The international evidence is also compelling. Forty years ago the US had a massive productivity lead, measured in output per hour, over France and Germany. Today, that lead has vanished. In contrast, the UK languishes far behind both the US and the leading European economies. As DTI economists concluded in a study published in 1998: France and Germany are now assuming the role of productivity leaders. One implication for policy is that we should be increasingly looking to France and Germany for best practice on how to utilise labour in work.

26 The EU Information and Consultation Directive has great potential to modernise employment relations in the UK. The lack of effective dialogue between employers and the workforce is, the TUC believes, a major reason for the UK’s relatively poor productivity. Systematic consultation with employees will add value to a business but only if employees are given the opportunity to have their views heard through organised channels, whether they be recognised trade unions or other democratically elected forums. For this potential to be realised Government, unions and employers will have to adopt a positive approach to implementation of the Directive and see it as a template for genuine and lasting partnership which can deliver increased productivity.

What we conclude

27 This section has set out the available evidence and facts to correct the many myths about European and UK labour market performance. We draw four main conclusions:

• Better employment protections have no demonstrable impacts on either employment or unemployment and moving towards the European social model will not put at risk the UK’s labour market successes;

• Permanent employee employment remains the bedrock of the UK labour market: there is no sign whatsoever that new forms of 'flexible' employment are growing;

• Despite economic success and a high level of permanent jobs, worker discontent is growing and will continue to grow until a fairer balance is struck between the interests of workers and the interests of the boardroom and the City;

• Strong trade unions and high performance management practices mean more training, higher productivity, and greater employment stability and less insecurity and wage inequality.

Employment Rights Legislation

28 This section looks at existing employment rights legislation in some detail and makes proposals for change. In doing so, we set out our view on the changes which will be necessary following the judgement of the European Court of Human Rights (ECHR) in the case of Wilson/Palmer [1] . Our view is based on advice given to the TUC by Professor Keith Ewing of King’s College, London.

29 In 1999, the Employment Relations Act (ERA) was carried, described as the Labour Government’s 'flagship' employment legislation, though qualified by the Prime Minister’s comment in his introduction to the White Paper 'Fairness at Work' that: 'There will be no going back. The days of strikes without ballots, mass picketing, closed shops and secondary action are over'. He also said that UK law remained the most restrictive on trade unions in the Western World and that the UK labour market was the most lightly regulated in the EU. More recently though in an interview with the 'Guardian' on 11 September 2001 the Prime Minister referred to 'the values of solidarity and community and society' as being at the heart of what the Labour Party believes. In his speech to the Labour Party Conference 2002, the Prime Minister referred to: 'The values of progressive politics - solidarity, justice for all - have never been more relevant; and their application never more in need of modernisation' and 'It is making solidarity - a great social democratic ideal - our route to practical survival' [2]

30 It was also made clear by the Government that the ERA was to be the only substantial employment legislation of that Parliament (notwithstanding the National Minimum Wage Act of 1998). Nonetheless, the Government acknowledged that there were aspects of the new legislation that should be kept under review. In particular, the legislation itself includes provision to review both the small firms exclusion from the statutory recognition procedures and also the 40 per cent 'yes' vote requirement in statutory recognition ballots. At the TUC Special General Council meeting in October 2000, the then Secretary of State for Trade and Industry, Stephen Byers said that the Government was committed to review the Fairness at Work legislation. At Congress 2002, the Prime Minister committed the Government to reviewing the ERA within the lifetime of this Parliament. This commitment was repeated to the TUC at a meeting with the Secretary of State for Trade and Industry in November 2001.

31 In July 2001, the Government published a consultation paper, 'Routes to Resolution: Improving Dispute Resolution in Britain', following which an Employment Bill was introduced to Parliament in November 2001. The Bill, now enacted, included a number of proposals to improve workplace dispute resolution procedures and make further changes to Employment Tribunal procedures and introduce a number of family friendly measures as well as introducing the new legislation on time off rights for union learning representatives. It did not, however, include any other proposals. The General Council was concerned that the promised review of the ERA and other employment rights issues needed to take place without delay. The Government must also transpose the Information and Consultation Directive into UK legislation within two and a half years. The TUC is discussing this important issue with the Government separately but it is important that this review and obligations in relation to new EU laws are regarded as part of a continuing strategy to achieve fairness at work. This revised version of the initial TUC submission includes additional points on recognition and some points on matters outside the Employment Relations Act. There is an Executive Summary of the TUC’s proposals on page 35.

32 One of the key points made in the TUC’s submission on the consultation paper 'Routes to Resolution' is that collective dispute resolution provides a much more effective means of addressing workplace problems than individual litigation. If the Government were prepared to make some amendments to existing legislation on recognition and representation, it would be likely that the resulting changes to workplace dispute resolution would be more effective than some of the proposals contained in the consultation paper and the subsequent Employment Act. The TUC urges the Government to respond quickly to responses to the review of the ERA so that any proposed legislation can be introduced at least a year before the next General Election.

International obligations: the Wilson /Palmer case

33 The UK remains in breach of internationally accepted standards on trade union rights including ILO Conventions 87 and 98 and, more specifically, the European Social Charter of 1961, article 6 of which provides a right to strike and the European Convention of Human Rights, article 11 of which provides for freedom of association. The European Convention of Human Rights has now been incorporated into UK law by the Human Rights Act 1998, and is thus directly enforceable against employers in the public sector. Workers in the UK should be treated no less favourably than their European colleagues and UK employment legislation should be brought up to standards in other EU countries.

34 In Wilson/Palmer the ECHR has gone a long way to reinforce the great importance of Art. 11 of the Convention. Art. 11 provides protection for the right to peaceful assembly as well as the right to freedom of association with others, including the right to form and join trade unions for the protection of ones interests. The case is significant not only for the decision on the immediate point before the Court, but for the consequences it has for a number of different labour law matters. The Court made two points in particular which the TUC draws to the attention of the Government. The first was to acknowledge that although the alleged breach of art.11 was made by an employer and not by the State, the State is nevertheless liable: 'The Court observes at the outset that although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights. In the present case, the matters about which the applicants complain - principally the employers de-recognition of the unions for collective bargaining purposes and offers of more favourable conditions of employment to employees agreeing not to be represented by the unions - did not involve direct intervention by the State. The responsibility of the UK would, however, be engaged if these matters resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Art.11 of the Convention (para.41 of ECHR judgment)'.

35 The second point was that although art.11 did not encompass collective bargaining it was nonetheless of the essence of the right to join trade unions for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. Importantly, it said that the role of the State was to ensure that trade union members were not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employer. The corollary of this positive right is that workers should not be penalised where they exercise their right to be represented by a trade union. As the Court pointed out, UK law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. The Court concluded that: 'by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State failed in its positive obligation to secure the enjoyment of the rights under art. 11 of the Convention'.

36 The TUC believes that the judgment has implications for five aspects of UK employment legislation in particular: protection from discrimination on grounds of trade union membership; the right to be accompanied; statutory recognition; the right to take industrial action; and aspects of trade union regulation, in particular, the right to exclude or expel members. We address each of these issues in the relevant sections of the submission below.

The Employment Relations Act

37 Although this submission looks at aspects of the new legislation that we believe are defective or misconceived, the TUC has generally welcomed the legislation, particularly the new rights to recognition and representation. One of the most important aspects of the statutory recognition scheme has been its success as a stimulus to voluntary agreements. In the year 1999 -2000, the year the Employment Relations Act came onto the statute book, there was a 300 per cent increase in the number of voluntary agreements reached, covering a wide range of industries, including engineering companies, call centres, care homes, voluntary organisations, printing and publishing, newspapers and retail outlets [3] . This trend has continued into 2000 - 2001. [4]

38 The Employment Relations Act included a number of important 'family friendly' measures. These are not addressed in detail in this submission as they have been separately covered in other TUC responses to the Government. The TUC submission follows the ordering in the legislation.

39 The TUC has some outstanding concerns on issues that are not covered by the Employment Relations Act. These are included at the end of this submission for ease of reference.

The Need for Review

40 Following its election in May 1997, and after formal discussions between the TUC and the CBI in which areas of agreement and disagreement were recorded, the Labour Government published a White Paper, 'Fairness at Work', in which it set out a number of proposals for employment law reform. In summary, these were:

• Abolition of the maximum limit on unfair dismissal awards

• Reduction in the qualifying period for unfair dismissal protection to one year

• Rights to union recognition for collective bargaining purposes

• Rights to be represented by a union in disciplinary or grievance procedures

• Rights to claim unfair dismissal if dismissed for taking part in lawful industrial action

• Abolishing the posts of Commissioner for the Rights of Trade Union Members and Commissioner for Protection Against Unlawful Industrial Action

• Improved maternity rights

• Rights to parental leave

• Provision of funds for training to promote partnerships at work

41 In addition, the White Paper invited views on:

• How to protect against abuse of waiver clauses in fixed term contracts

• Protection against abuses of zero hours contracts

• Extension of employment protection rights to those not classified as 'employees'

• Whether training should be a subject for collective bargaining under the statutory scheme

• The scope for de-recognition within the context of a statutory recognition procedure

• Simplification of the law and the Code of Practice on industrial action balloting

• Simplification of the notice requirements on maternity leave

• Implementation of the Parental Leave Directive

41 Following a consultative conference with affiliated unions on 24 June 1998, the TUC submitted a response to the Government, which, in summary, made the following points:

• Individual rights: the TUC supported the proposed abolition of the upper limit on compensation for unfair dismissal but also wanted the Government to abolish the limit on a week’s pay or at least up rate it annually, to abolish the upper limit on awards for breach of contract and to introduce aggravated damages for 'special' awards, for example, health and safety dismissals

• All employment protection should be available to workers from their first day of employment

• Statutory recognition: the TUC did not support the proposed 40 per cent 'Yes' vote requirement for statutory recognition ballots

• The TUC believed that workplace ballots should be the norm

• The union should be given access to the workforce at all times, not just during the recognition ballot

• There should be no small firms exemption from the statutory recognition scheme

• Names of union members should remain confidential to the CAC

• There should be a Code of Practice setting out guidance on how to define a bargaining unit, which should specifically include the views of the workers as one of the factors to be considered

• Non independent unions must not be allowed to prevent applications from independent unions

• The proposed time limits were too long

• The recognition agreement should include training, with consideration given to the inclusion of other matters, such as equal pay

• Employers should not be permitted to offer financial incentives to encourage individuals to sign personal contracts relinquishing their right to be covered by trade union recognition

• There should be unilateral access to arbitration where an employer is failing to negotiate on the union’s claim subsequent to a recognition award

• There should not be a procedure for changing the bargaining unit post recognition

• Industrial action: there should be automatic reinstatement or compensation where someone is dismissed for taking part in lawful industrial action

• The six year period within which an employer can sue a union for a breach of the law should be reduced to seven days, to correspond to the seven days notice of a ballot which a union is required to give an employer

• In general, the Code should be vastly simplified, in particular in relation to aggregating ballot results, providing information to employers and notices to employers where discontinuous action is proposed

• There should be a right to take solidarity action in line with ILO conventions, particularly where work is transferred to other plants in order to circumvent a lawful dispute

• Discrimination against trade union members: subsections 3, 4 and 5 of s.148 of the TULR(C ) A 1992 must be repealed (the 'Ullswater' amendment, which allows employers to avoid claims of discrimination on trade union grounds if their purpose was to 'further a change in his relationship with all or any class of employees'

• The European Court of Human Rights decision in the Wilson/Palmer case which clearly established an absolute right to be represented by a trade union, must be implemented by amending existing legislation in the UK;

• Existing protection against discrimination in recruitment on the basis of trade union membership should be extended to cover previous trade union membership; s.137 (recruitment) of the 1992 Act should be amended so that it covers union activities as well as membership (as is the case with ss. 146 and 152, action short of dismissal and dismissal, respectively)

• The right to representation: the right should be 'representation' rather than to be 'accompanied'

Employment Relations Bill

42 In January 1999, the Government published the Employment Relations Bill. The Bill generally reflected the proposals in the White Paper, as described above. There were a number of important differences. Firstly, whereas the White Paper had generally referred to the right to be 'represented' at grievance or disciplinary hearings, the Bill referred to the right to be 'accompanied'. Secondly, additional requirements on the union had been added into the recognition proposals, including a second test on admissibility requiring the union to demonstrate that it would be 'likely to win a majority' as well as having 10 per cent membership. Thirdly, an 'effective management' criterion for the definition of the bargaining unit was added. Fourthly, discretion was provided for the CAC to order a ballot even where the union had 50 per cent membership if they believed that to do so would be in the interest of good industrial relations.

43 Fifthly, where a non-independent union was already recognised a new procedure was proposed whereby workers in the bargaining unit could apply for de-recognition (rather than simply saying that an agreement with a non-independent union would not act as a bar to an independent union applying for recognition) as long as the non-independent union had been recognised for more than three years. Sixthly, where the eight week period for the new unfair dismissal protection for striking workers ended, it would still be possible for an employee to claim protection if the employer had refused to negotiate with the union.

44 As the Bill proceeded through Parliament, further changes were made, some as a result of TUC pressure and others in response to employers’ concerns. The most important of these are summarised here.

• the three year bar on workers applying to have a non-independent union de-recognised was removed

• overtime and call out bans were defined as action short of strike action

• minor technical breaches of the Code on Industrial Action Ballots could be disregarded by the Courts

• unions with voluntary agreements reached during the process of applying for statutory recognition would be able to go to the CAC to have a collective bargaining method imposed if the employer reneged on the agreement with the union

• unions with voluntary agreements which did not cover pay, hours and holidays could apply to the CAC for 'top up' recognition on these issues

• where the CAC agreed a bargaining unit which was substantially different to that proposed by the union, to the extent that the admissibility tests had to be re-applied, the union could withdraw its application before the tests were applied without incurring the three year moratorium

• where an employer had de-recognised a non-independent union on a voluntary basis within the past three years, they would not be able to resurrect it in relation to a bargaining unit for which a non-independent union had submitted an application to the CAC

• workers dismissed as a result of an employer using a 'blacklist' could claim unfair dismissal automatically (in the original drafting the protection against 'blacklisting' only applied to recruitment)

• the new protection against detriment or dismissal for refusing to sign a personal contract excluding collectively agreed terms was damaged by an Opposition amendment tabled within hours of final assent, leaving this part of the legislation facing two ways. To date, implementing Regulations have not been laid.

Scope of TUC review

45 In line with resolutions carried at Congress 2001 and 2002, and following discussion at the General Council, the TUC has identified a number of areas where the Employment Relations Act is defective, is not having the intended effect or was never satisfactory. For ease of reference, these are ordered to correspond with the ordering in the legislation. In some areas, the submission also refers to parts of the Trade Union Labour Relations (Consolidation) Act 1992 and the Employment Rights Act 1996, as these were amended by the new legislation. As indicated above, this submission does not cover the 'family friendly' aspects of the legislation, as other TUC submissions have suggested improvements to these important sections of the Act.

Statutory Recognition

S.1, Schedule 1 (now incorporated into the TULRCA 1992): Introduction: paragraphs 1 and 2

46 The TUC regrets that the Government did not include a preamble stating an intention to promote collective bargaining. This would have given the CAC a clearly identified purpose rather than simply a remit to operate a recognition scheme.

Collective Bargaining: scope - paragraphs 2 to 6 and s.5

47 The scope of collective bargaining under the Schedule should be extended to include training. The Government’s stated goal is to achieve a high skill, high wage economy. 'The Skill Needs in Britain' survey (1997) found that one in five employers had not provided any off the job training in the previous twelve months. Involving unions in training helps to gain the commitment of employers and the workforce to raising skill levels and will help the Government to meet its objectives for competitiveness and lifelong learning. Trade unions are essential for:

• Creating the bottom up pressure from the workforce which encourages employers to invest in training

• Generating the trust and commitment of the workforce for management initiatives and

• Guaranteeing the success of training by making sure it is based on business as well as employee objectives for learning.

48 Research shows that union involvement in training adds value to quality and quantity. One study found that unionised firms were 17 per cent more likely to provide training for manual workers and 8 per cent more likely to provide training for non-manual workers. The same study also found that unionised workplaces were 17 per cent more likely to have a training centre and 11 per cent more likely to have a training plan. [5]

49 Collective bargaining provides a framework for discussion and is a flexible process for reaching a range of agreements about the best way forward. The Government has shown its commitment to training by investing in innovative and important projects involving unions, for example, the 'Bargaining for Skills' projects. It would be entirely consistent to ensure that the legislation providing for union recognition reflected that by including training as one of the matters covered in paragraph 3(3) of the Schedule. This would ensure that union representatives had a legal framework within which to carry out their responsibilities. The existing provision, in s.5 of the ERA, only obliges employers to inform and consult on a six monthly basis.

50 The Employment Act 2002 includes welcome proposals to give union learning representatives statutory rights to time off. This indicates the importance that the Government attaches to the role of unions in education and training. It is inconsistent to continue to exclude training from the list of matters specified in the ERA for collective bargaining.

51 The TUC also believes that other matters should be considered for inclusion, in particular, equality issues. It is important that issues such as equal pay and discrimination are addressed in collective bargaining. Union representatives can assist employers in achieving equal treatment in the workplace and tackling discrimination by raising awareness of issues with management before they reach the stage of a dispute, facilitating change by agreement rather than legal action.

52 The TUC urges the Government to include training and equality in the matters specified for collective bargaining.

53 An issue, which has arisen recently in relation to a CAC case and was raised by the TUC when the legislation was being considered by Parliament, was the definition of 'pay'. The TUC strongly made the point that 'pay' is now regarded in law as including occupational pensions but asked the Government to specify that on the face of the Bill. They did not do that but a subsequent CAC determination (Unifi and Bank of Nigeria) has specified that negotiations on pay following an award of recognition must include negotiations on the company pension scheme. Whereas this case does not establish a legal precedent, the legal advice given to the union at the time reinforces the TUC’s view that pensions must be considered as part of pay and included in the collective bargaining process. Trade unions now have rights to nominate member trustees onto occupational pension schemes and should have corresponding rights to negotiate on pensions issues.

54 In order to provide clarity the TUC urges the Government to amend the legislation to give a definition of pay, which specifically includes occupational pensions.

Small firms exclusion: paragraph 7 (1) and (2)

55 The TUC remains strongly opposed to the exclusion of businesses where fewer than 21 workers are employed. Using Government statistics [6] , there are currently 4,593,000 workers who are excluded from the statutory right to be represented in negotiations over pay, hours and holidays. This represents a fifth of the private sector workforce. It is wholly unacceptable to deny this right in an arbitrary manner to so many workers. It is also anomalous in that recognition rights can be awarded in a firm of 21 workers on the basis of a 9-8 vote in a ballot but in a firm with 20 workers there is no right to recognition even if all 20 of the workers were members of the union and indicated that they supported collective bargaining.

56 Employment Tribunal statistics published recently in the Government’s consultation paper on individual dispute resolution [7] show clearly that the majority of claims come from the small business sector. The TUC has argued in its submission to the Government on the consultation paper that it is no coincidence that very few of these firms recognise a trade union. The presence of a union would help improve employee relations and ensure that employers kept to their statutory obligations on staffing issues. The TUC believes that the Government would be more likely to reduce the increasing volume of individual employment rights litigation if it were to place more emphasis on encouraging collective solutions. Giving workers a voice in their workplace through a trade union will encourage workplace resolution of individual disputes. Such an approach is most needed in the workplaces where the problems are greatest - small businesses.

57 The TUC believes that the small firms exclusion is having a discriminatory impact as a disproportionately high number of women, black and young workers work in such establishments. Small businesses do not only exist in the private sector. For example, most GP surgeries are independent contractors, employing fewer than 21 workers. These workers are not covered by NHS terms and conditions and are particularly in need of the protection which union recognition would afford.

58 There have been problems in the CAC with applications for recognition where employers have argued that their businesses actually operated legally as more than one company. This issue is currently being considered by the CAC. The TUC argued in its response to the White Paper 'Fairness at Work' that the small business exclusion was open to abuse, as companies would try to re-organise their business in such a way as to create separate small companies (see also below in the section on associated companies).

59 High employment standards should operate in the small business sector as much as in any other. Workers today are told that they must be flexible and expect several job changes during their working lives. They should also expect, and deserve, to have the same rights whatever the size of the firm for which they work. The TUC pointed out in our response to 'Fairness at Work' that the option of obtaining recognition by showing majority membership provides a particularly appropriate procedure for small firms and would not involve the administrative requirements of a ballot. We do not accept that extending the statutory recognition scheme to small firms would create a regulatory burden on them.

60 The TUC is also concerned that employers may seek to avoid recognition by artificially reducing the numbers of the workforce below 21 (see GPMU and Keely Print, CAC, July 2001). The TUC would urge the Government to consider a provision whereby it was automatically unfair to dismiss a worker where the reason, or principal reason was to reduce the workforce below 21 in order to avoid statutory recognition. Workers currently have no rights if they are dismissed as a result of something that their union is doing.

61 The Wilson/Palmer decision may have an impact on this aspect of the legislation, although the right to freedom of association does not include the right to bargain collectively. The decision did specify a right to be represented by a trade union. If the members decide to exercise this right in terms of representations about pay, and a sufficient number of workers are union members, de facto bargaining on pay will exist. It would seem sensible for an employer in such a situation to hold one set of negotiations rather than a number of meetings with individual workers. This being the case, the small business exclusion from the recognition schedule may become redundant in effect. This, with the points made above, provides a strong case for removing the exclusion altogether.

62 The TUC strongly urges the Government to use the powers it has in this section of the legislation to vary the threshold by abolishing it altogether, so that all workers can benefit from the advantages of collective representation.

Associated employers: paragraph 7 (3) and (4)

63 The definition of 'associated employers' has given rise to some difficulties in CAC proceedings. The phrase 'associated employers' is used in other employment legislation, for example, in the Collective Redundancies Regulation and in legislation relating to industrial action, where it has also caused difficulties on occasions. Two employers are associated employers under section 297 of the 1992 Act if one is a company, of which the other (indirectly or directly) has control, or both are companies of which a third person (directly or indirectly) has control. It is by no means clear in all cases where an employer is arguing that their company is associated with another, whether the control test in the legislation has been met. One aspect of this is that it appears that you cannot have a cross-employer bargaining unit even where the companies are 'associated'. This led to the necessity of two separate applications in one case (TUR1/113/2001). In another case currently going through CAC procedures, (TUR1/183&208, 2002) if it is decided by the CAC that the businesses are not associated, a workable bargaining unit will be split, with workers doing the same jobs in the same location governed by different systems. This is not in the interests of good industrial relations and again shows the weaknesses of this aspect of the legislation.

64 The TUC believes that the Government should provide guidance on how the test should be applied and how this legislation interrelates with company law. The test should be sufficiently strong to ensure that companies cannot simply divide themselves on paper in such a way as to allow them to claim that they are 'associated' employers when in practice they operate as one entity.

Seafarers: paragraph 5

65 A separate section and general recommendation on seafarers and employment legislation is included later in this submission. In relation to this paragraph, the TUC is concerned that because of the widespread practice of 'flagging out', many seafarers are being unfairly excluded from the right to statutory recognition.

Periods for negotiation

66 Throughout the Schedule, there are periods of time set aside for negotiation between the parties. While the TUC accepts that it is necessary to set aside some time during various stages of the procedure to encourage voluntary agreement, unions, which have used the recognition procedures, have reported abuse of these negotiating periods, to the extent that one relatively straightforward case took seven months to complete. There is evidence that some employers regard these negotiating periods as a window of opportunity to engage in unfettered anti-union campaigning (the union only has access to the workplace during the recognition ballot). In most of the negotiating periods, there is a compulsory 10 or 20-day period for negotiation, followed by another indefinite negotiating period at the discretion of the CAC.

67 To date, the TUC believes that the CAC has been too willing to give employers extensions without giving enough weight to union objections - it appears to be taken as read in many cases that the employer’s request is for genuine reasons and will lead to a voluntary agreement, whereas in reality, the employer has no intention of doing anything other than being as obstructive as possible. It could be safely assumed that beyond a certain point in the negotiations, probably the stage at which the bargaining unit has been determined, if the employer has not conceded recognition voluntarily then every request for an extension is likely to be a delaying tactic.

68 The TUC proposes that all the 20 day periods specified in the Schedule are reduced to 10 days and that where the CAC has discretion to grant a further extension, this should be qualified by the addition of the words 'after consulting with each' (after the existing '…the CAC may specify to the parties' or as appropriate).

Appropriate Bargaining Unit: paragraphs 18 - 20

69 In its response to the consultation on 'Fairness at Work' the TUC expressed concern that the requirement for a bargaining unit to be 'compatible with effective management', expressed in the legislation as the overriding criterion, would be likely to lead to outcomes which favoured the employer. Because of the quality of the CAC panels, to date the majority of bargaining unit determinations have been regarded as fair by unions even where the outcome has differed from the union’s proposal. In particular, the decision of the Court of Appeal in the Kwikfit [8] case reinforced the role of the CAC and helpfully set out the stages in the process of determining an appropriate bargaining unit. There have been two notable exceptions where the CAC has been persuaded by the employer to determine a vastly different bargaining unit than that proposed, relying in both cases on the employer’s assurances that they found their management systems to be 'effective'. Both these cases involved union bargaining units, which were small parts of larger undertakings. Other cases, where there have not been problems, have related to small companies and occupational, rather than site based bargaining groups. The TUC’s fear is that if there are more applications involving larger companies, which are inevitable, the 'effective management' clause will continue to prejudice the approach of the CAC.

70 The TUC proposes that paragraphs 19 (3 and 4) are merged so that they say: 'In deciding the appropriate bargaining unit the CAC must take these matters into account: (a) the views of the employer and of the union (or unions),' etc.

Recognition without a ballot: qualifying conditions: paragraphs 22 and 23

71 The three qualifying conditions under which the CAC may decide to organise a recognition ballot, even though the union has satisfied the panel that it has at least 50 per cent membership in the bargaining unit, were introduced at the request of the CBI just before the Bill was published. The TUC objected to this on the basis that if the CAC were satisfied that the union did have the required 50 per cent, that should be sufficient. To add qualifying conditions to meet hypothetical circumstances was unnecessary and would give employers further opportunities to delay the process. This remains the view of the TUC. On one occasion when the CAC did impose a ballot in these circumstances, the union won with a massive majority (TUR1/11& 19/2000). In one case, the CAC ordered a ballot because of the 'sincerely held view of the employer that the majority of workers in the bargaining unit did not want recognition' (TUR1/121/2001).

72 In another case, however, a union was able to persuade the CAC that the employer’s demand for a ballot should not be acceded because of the intimidatory atmosphere being caused by the employer’s activities, which would be likely to continue during any balloting process (ref. TUR1/21/2000). In addition, employees had been bullied into signing letters saying that they did not support recognition. It was therefore not going to be in the interest of good industrial relations to hold a ballot. There have on the other hand been cases where despite the union having over 50 per cent membership, or substantial support shown in a petition, the union has lost the ballot (ref. TUR1/ 34,54,57,82, 164, 169, 2000-2). In some cases this is because of redundancies or dismissals, in others because of heavy employer campaigning and intimidation and use of delaying tactics. It is clearly difficult to maintain the momentum of a recognition campaign for several months while the CAC processes the application.

73 The problem with these provisions is that the CAC appears to be applying the criteria of their own volition. In the TUC’s view, they should not consider these matters unless the employer raises them and can produce evidence in support of the need for a ballot. The TUC is concerned that the CAC may be conflating the percentage requirement with the criteria for ordering a ballot.

72 The TUC believes that there is an argument for freezing union membership levels at the point of acceptance, just as the bargaining unit is frozen once determined. Otherwise, not only are ballots ordered when the union had a reasonable expectation of getting recognition without a ballot, often as a result of employer tactics, but logically the entire question of admissibility could be re-opened. This would introduce an unacceptable degree of uncertainty and delay into the procedure

73 The TUC proposes that paragraphs 22 (3, 4 and 5) and consequential paragraphs in other parts of the Schedule are deleted.

Recognition Ballots/Code of Practice on Access: paragraphs 24 to 29

74 The TUC believes that the Code of Practice on Access to the Bargaining Unit during a statutory recognition ballot should be extended to allow the union access from the point at which an application has been accepted by the CAC. The actual balloting period is relatively short (20 days) whereas it is possible for the period from submitting the application to the ballot to be more than three months, if the CAC allows the employer extra negotiating periods. It is during this period that the employer, with unfettered access to the workforce, can campaign as aggressively as he or she wants against the union. Indeed, the potential for campaigning against the union during this period has no doubt encouraged employers to ask for extra time. The Code does not cover the period, so the employer is free to disseminate as much propaganda as he or she wants, to make threats, and to intimidate individual workers. Some examples of intimidatory and misleading materials used in recent campaigns by employers have already been supplied to the DTI. Although the period before the application is made is not covered by the Schedule, the CAC should be required when applying the admissibility tests to consider any problems encountered by the union before the application was made when seeking written evidence of support from workers for the purposes of satisfying the 'likely to win a majority' test.

75 The other important point on access is that unions have no right to see documentation giving evidence of employment arrangements. This is a real handicap during the period of negotiation over the bargaining unit. Whereas the TUC would not expect employers to disclose names or confidential information, unions should be allowed access to basic information about the numbers employed, grades, etc.

76 The TUC made a number of comments on the Code on Access when it was in draft form. It would not require primary legislation to amend the Code; the TUC will approach the DTI with a view to discussing how the Code is working in practice. The TUC has made a separate submission to the Government’s e-envoy’s office on electronic balloting, where we believe that the law should be amended to reflect modern practices in unions.

77 The TUC recommends unions be given rights of access from the day on which their application is accepted by the CAC and that the Code is reviewed by the DTI, in consultation with the TUC.

Protection for workers during a recognition claim

78 There are a number of different tactics being used by hostile employers during a recognition claim. These include setting up an in house staff association, placing workers under surveillance as they walk past union organisers outside the workplace, issuing threats that they will close or re-locate the business rather than face recognition, pack the bargaining unit with new temporary employees before the ballot, packing union access meetings with management personnel, giving workers the option of going home early when there is a union meeting organised, dismissing activists or declaring their jobs to be redundant, intimidating workers on a one to one basis and 'encouraging' workers to sign personal contracts before or after recognition. Following the Wilson/Palmer decision, there is a strong argument that these tactics are unfavourable treatment designed to restrain the use by unions of union membership to protect their interests and to frustrate a trade union’s ability to strive for the protection of its members interests.

79 This being the case, there is a strong argument that existing protection against detriment is not adequate and greater protection is required. This could take the form of an unfair labour practice which makes conduct of this kind unlawful and enforceable by the union, rather than the individual employee. Interim relief should be available, as it is for cases of discrimination on grounds of union membership, so that the action of the employer may be stopped immediately.

The 40 per cent 'yes' vote requirement

80 The TUC remains convinced that the 40 per cent 'yes' vote requirement is unfair and unnecessary. In other statutory elections, for example, to elect councillors in local authorities, the convention is that only the views of those who decide to vote should count; an abstention is treated not as a vote for the status quo, but as a non-vote. The result of the 2001 General Election would have been very different if the abstentions were counted as votes against the current Government. It cannot be inferred that those who do not vote do not support recognition. Recognition should be granted where a majority of those voting vote in favour. The impact of this rule has been felt most keenly in relation to voluntary recognition. It was always clear that one of the main effects of the legislation on recognition would be its reflexive nature. This has meant that a number of employers offering voluntary recognition ballots have insisted on using the criteria specified in the legislation. The impact of the 40% 'yes' vote requirement has been considerably greater in terms of voluntary agreements.

81 The TUC recommends that the Government exercises the power conferred on it by the legislation to review this threshold and amends it so that recognition is granted where a simple majority of those voting vote in favour.

Collective Bargaining Method: paragraphs 30 to 32, and Model Collective Bargaining Method

82 When responding to 'Fairness at Work' the TUC expressed concern that whereas the legislation imposed a collective bargaining procedure on the parties, there was no obligation to bargain in good faith. The TUC believes that the Government should give consideration to re-introducing the concept of the compulsory incorporation of terms and conditions as appeared in the 1975 legislation and as currently exists as a remedy in relation to the disclosure of information for the purposes of collective bargaining. Any clause in a contract of employment, which is less favourable than the terms of a collective agreement, should be void and unenforceable. There should be a corresponding prohibition on employers offering inducements to workers to give up the right to have terms and conditions determined by collective bargaining (see also below).

83 Generally, once recognition awards have been made, employers have settled down and worked out a way of conducting collective bargaining on a voluntary basis, if with bad grace in some cases. However, there have been some problems which are worth describing. The first of these relates to pensions and whether or not they included under 'pay' for these purposes. In TUR1/16/2000 the employer argued that he was not required to bargain on pension matters with the union. The union successfully argued that the pension scheme operated by the bank was clearly part of the remuneration package. Although each case will be looked at on its merits, as pension schemes vary and CAC rulings do not set binding precedents, this was a very important ruling which will impact on other cases.

84 In several cases unions have struggled with employers who made agreement as difficult as possible. In one case the employer attempted to insert a 'no strike' agreement (TUR1/59/2001); in another the employer tried to have a clause included which invited workers who were not members of the union to sign personal contracts excluding them from the collective bargaining arrangements (TUR1/12/2000). Whereas it is difficult under existing laws to prevent employers from trying to persuade workers to sign personal contracts, the Wilson/Palmer decision will have implications for the use of this practice in these circumstances. It ought not to be lawful for those on personal contracts to be paid more because they do not make use of the services of the union. The recognition legislation only prescribes the method and the matters on which collective bargaining will take place, not other matters, so there is no obligation on the union to include anything other than the basics. Any union faced with an employer who tries to impose additional requirements should, if they will not back down, complain to the CAC and if necessary ask them to impose the default model procedure.

85 The Model Collective Bargaining Method only refers to the procedure. As the procedure is legally enforceable, unions can apply to the Court for an order of specific performance, which, if breached, could result in contempt of court proceedings. It remains to be seen whether the courts will be willing to make such orders. In any case, unions cannot sue for damages and court orders can only make the employer meet the union, not oblige the employer to negotiate or reach an agreement on the substantive issues.

86 Paragraph 32 (2) says that the parties may apply to the CAC for assistance, whereas the corresponding paragraph in the section on voluntary agreements reached outside the CAC (paragraph 59) says that the employer or the unions may apply to the CAC. One or the other paragraph should be re-drafted to ensure consistency. The TUC would prefer the formulation in paragraph 59 as this achieves the intended effect, which is to allow the parties unilateral application to the CAC for assistance.

87 The Government should give consideration to the compulsory incorporation of collective terms awarded by the CAC into contracts of employment.

Admissibility (General Provisions) and TUPE transfers: paragraph 35 (1)

88 Paragraph 35(1) specifies that where there is already in force a collective agreement, which covers any of the workers in the relevant bargaining unit, a union may not apply for recognition. A problem has arisen at the CAC in a case where it was not clear whether a recognition agreement was extant. This was because the agreement had transferred under TUPE regulations, which meant that a collective agreement covering 12 workers in the bargaining unit had transferred. The employer refused to extend this to cover other workers doing the same jobs in the bargaining unit proposed by the union. When the union applied to the CAC for recognition, although the panel decided that the previous agreement had expired and the application was accepted, the CAC advised that had the union proposed a bargaining unit comprising just the workers not covered, it would have been unlikely to succeed.

89 The TUC notes that the Government has consulted on possible changes to the TUPE Regulations but believes that this problem must be addressed through amendment to the provisions in the ERA. The TUC believes that in the same way that employers can apply to the CAC for de-recognition if they believe that the original bargaining unit has changed substantially, unions should be able to apply to the CAC for an extension of a transferred recognition agreement, which would be legally enforceable. Clearly if this could be achieved through voluntary agreement, that would be preferable and the CAC’s duty to promote voluntary arrangements would apply here as it does elsewhere in the schedule. There would be a clear role for the TUC here, particularly if there were an existing collective agreement covering some of the workers in the transferee’s bargaining unit. The existing admissibility tests, bargaining unit tests and collective bargaining coverage and arrangements would still be applicable. This would provide a fair and workable solution to the issue of transfers and statutory recognition.

90 An additional section should be added to paragraph 35 to specify that where a TUPE transfer has included a recognition agreement, the union(s) affected may apply to the CAC for an extension of the existing recognition agreement.

91 The legislation renders an application inadmissible if there is already a collective agreement in place with an independent union. Where there is an agreement with a non-independent union, the application is rejected but there is provision in Part 6 for the workers to apply for de-recognition of the non-independent union. We address the problems with Part 6 below. There have been problems at admissibility stage with deciding whether or not a body recognised by an employer, which is clearly not an independent union, is a union within the legal definition or not. The broad definition elsewhere in the legislation is not helpful in this context. Bearing in mind the points made later about part 6, the TUC proposes that the definition for the purposes of Schedule A1 of the Act are that the union must have a certificate of independence if it is to render any other application inadmissible. Non-independent unions should not be able to render an application by an independent union inadmissible.

'Top up' recognition: paragraph 35(3)

92 Where there is a voluntary agreement, which does not cover 'pay, hours or holidays', the union may apply to the CAC for 'top up' recognition on those issues. It is not clear in this paragraph whether the existing agreement must cover pay, hours and holidays, or just one of the three in order to be excluded from this provision. Use of the word 'or', rather than 'and' as under the admissibility criteria defined in paragraph 3 (3), suggests that the agreement would only have to cover one of the three. It would be helpful if this could be made clearer, for example, by the insertion of an additional 'or' between 'pay' and 'hours'.

Confidentiality of Information

93 The TUC is concerned that materials provided to the CAC in order to demonstrate support for recognition, for example, petitions or lists of members, should remain confidential to the CAC. One of the biggest problems to date has been confidentiality of evidence. This mainly applies to the petition, or other hard evidence produced by the union to demonstrate that the majority of workers would support recognition. It does also apply where an employer will not disclose information to the union, for example, about the numbers employed in the proposed bargaining unit. Confidentiality of union evidence has proved to be more significant of the two. Where the employer refuses to disclose evidence to the union, this is unhelpful but unlikely to stop the application. Once the bargaining unit determination stage is reached, information about numbers employed, etc, will emerge. On the other hand, the consequences of the employer getting hold of the names of those who support recognition are potentially very serious.

94 Accepting this point, the CAC has tried to be as helpful as possible within the terms of the legislation. The legislation itself is silent about whether or not the union has a right to have information of a sensitive nature kept confidential to the CAC. To date, it has asked parties in each case to respect confidentiality of sensitive information.

95 The TUC believes that the CAC could avoid this if the legislation were to give them power to verify sensitive information of this sort without disclosing it. The CAC can check the names on a petition against a list of those employed. A less satisfactory alternative would be to allow the employer to look through the petition once, under CAC supervision, and make any objections at that stage. Similar arrangements could be made where the employer did not want the union to have a copy of their list of those employed. The TUC has raised this concern with the Chair of the CAC, who was sympathetic to the TUC’s concerns but reminded the TUC of the Human Rights Act, which provides a right to a fair trial, including access to evidence.

96 The TUC also believes that there is a case to be made for giving the CAC powers to require an employer to provide relevant information to a union which is intending to make an application to the CAC for recognition. Some applications have failed because the union has been unable to get accurate information about the numbers employed. If the CAC had these powers it would assist unions in assessing whether or not they could meet the admissibility criteria, without having to put in applications and wait until the admissibility tests were applied to discover how workers many were employed on a particular grade, for example. Once the CAC has rejected an application, the three year bar applies.

Changes affecting the bargaining unit: Part III

97 This section was not included in 'Fairness at Work' but was inserted when the Bill was going through Parliament. The TUC believes that it is unnecessary and that where there is a genuine and significant change in the bargaining unit, the employer should be allowed to apply for de-recognition, after the application of some simple tests by the CAC to establish that there has genuinely been a substantial change and with a right for the union to make representations at the application stage. The legislation as currently drafted is inordinately and unnecessarily complex and is likely to encourage employers to make speculative applications. It should be substantially re-drafted and included in the general provisions on de-recognition.

98 If this provision is to remain, it should be amended to include provision for unions to re-apply for recognition before the expiry of the three year moratorium in situations where they can demonstrate that their support has substantially increased or where a change in the bargaining unit, for example, as a result of a company re-structuring, has increased the percentage of their membership.

Part 6: de-recognition where union not independent

99 Initially, the Government proposed that the existence of a recognition agreement with a non-independent union would block an application for recognition. The TUC lobbied for the block only to apply where the union was independent. The employers lobbied for the legislation to cover agreements with non-independent unions. The Government’s solution was to introduce Part 6. At the time, the TUC objected, pointing out in particular that there was a substantial defect in the proposed new section. This was the assumption that the bargaining unit would be that already defined through the existing collective agreement; in other words, an employer could reach a voluntary agreement with a non-independent union relating to whatever bargaining unit they chose, which would then block a recognition application for all parts of the company covered.

100In legislation that was generally based on symmetry between recognition and de-recognition provisions, it is patently unfair to make unions go through tortuous tests on the suitability of their bargaining unit when applying for recognition but to allow employers to have a free hand when defending an existing bargaining unit with a non-independent union. The fact that employers can do this in agreements with independent unions is not relevant as such agreements are an absolute and unconditional block on recognition applications. Part 6 introduces a new element, which should at least include provision to test the bargaining unit.

101Neither is there any provision in the legislation for access to the workers for an independent union, which may have members in the bargaining unit. Indeed, the legislation relies on 'workers' rather than a union to trigger the de-recognition provisions. Although this is also true of the de-recognition provisions in general, in other situations, the independent union would already have access by virtue of their existing recognition agreement. This restriction also applies to the distribution of written material by the Qualified Independent Person during a de-recognition ballot.

102There is no provision for the agreement with the non-independent union to cover pay, hours and holidays. This means that an agreement, which merely allows the 'union' to represent workers at grievance or disciplinary hearings, can block an application for recognition for substantive terms by an independent union. A voluntary agreement with an independent union, which does not cover pay, hours or holidays, does not prevent that union from applying for a 'top up' agreement. To be consistent, an agreement with a non-independent union should not be allowed to block an application for recognition if it does not cover pay, hours or holidays.

103Some employers have taken the view that all they need to do to block an application for recognition by an independent union is set up a staff association with which they conduct discussions on health and safety issues. It is likely that these provisions contravene ILO Convention 98 which expressly provides that 'acts which are designed to promote the establishment of workers’ organisations under the domination of employers’ organisations, or to support workers’ organisations by financial or other means, with the object of placing such organisations under the control of employers or employers’ associations are deemed to violate the principle of freedom of association'.

104The TUC proposes that the legislation should be amended so that only recognition agreements with independent unions can bar applications. Non-independent unions would not be able to prevent an independent union from applying for statutory recognition; nor should agreements, which do not cover pay, hours and holidays. The CAC would test the union’s membership levels in relation to the bargaining unit specified by the union. The CAC would then decide whether or not to accept the union’s proposed bargaining unit. The union would be given the opportunity to withdraw its application without attracting the three-year moratorium if the CAC determined a bargaining unit, which was substantially different to that, defined originally by the union. The union would be given full access rights following acceptance of their application (see above). If this is considered unacceptable, the legislation should at least be amended so that independent unions have the right to apply directly to the CAC for de-recognition of non-independent unions.

Detriment Relating to Union Membership: s.2, Schedule 2

105The TUC warmly welcomed this part of the legislation, which goes some way towards reversing the House of Lords decision in the case of Wilson/Palmer, etc. However, the failure to reverse the 'Ullswater' amendment to the TURER 1993 (now s.148(3) of the 1992 Act), the sabotaging of s.17 of the ERA by the Opposition and the Wilson/Palmer judgement have left much to be desired in this area of law. This is discussed in detail below.

'Blacklists': s.3

106The TUC welcomed this provision in the legislation and urges the Government to proceed with its implementation and consult on Regulations as soon as possible.

Industrial Action: Ballots and Notices: s. 4 Schedule 3

107The TUC generally welcomed the simplification of aspects of the law and Code on industrial action. Nonetheless, in one area, the requirement to provide information to employers and also in the numbering of certain paragraphs relating to minor technical breaches, the TUC proposes amendments. As this would involve further primary legislation, the TUC has taken this opportunity to propose amendments to the legislation in relation to the definition of a trade dispute, which regularly causes problems in the courts and also aspects of the legislation relating to associated businesses. The problems and the principles for reform are outlined below. More detailed suggestions for re-drafting sections of the legislation have been drafted for the TUC by Professor Keith Ewing of Kings College, London, who has considerable expertise in this field. The draft has already been sent to the Government and is available on the TUC’s website (www.tuc.org.uk).

108The UK remains in breach of international laws, which it has ratified in relation to trade union rights. These rights include the right to strike, which does not exist in the UK. The TUC believes that there should be a positive right to strike in UK law. The effects of the unlawfulness of industrial action in the UK include the relative ease with which employers can obtain injunctions against unions. As well as obtaining injunctions on the basis of the restrictions on lawful disputes, the complex requirements for ballots and notices introduced by the Conservative Governments of the 1980s and early 1990s, consolidated into the TULRCA 1992, provide further opportunities for employers to seek injunctions to stop industrial action. It would surely be more constructive for employers to attempt to negotiate solutions to industrial relations problems rather than to go straight to the courts for injunctions on the basis of technical breaches.

109Whereas the TUC is not proposing reversing all the legislation on industrial action contained in the 1992 Act and accepts the principle of ballots before industrial action, there are some reforms, which are urgently needed in order to restore the balance between basic employment rights and the need to maintain orderly industrial relations. The main areas where the TUC is proposing reform are set out below.

Ballots and Notices - documents for employers: s.226 of the TULRCA 1992

110During a recent dispute between the rail unions and London Underground, the employer was successful in obtaining an injunction against RMT, which prevented them from pursuing their proposed industrial action. The court ruling centred around the new part of the Code on Industrial Action ballots, introduced by the Employment Relations Act to replace the Court judgment against NATFHE in 1994, which held that unions could be required to provide employers with the names of those it intended to ballot.

111The Employment Relations Act replaced this requirement with a new one, which provides that the union must give the employer 'such information in [its] possession as would help the employer to make plans and bring information to the attention of those of his employees who it is reasonable to believe … will be entitled to vote in the ballot'. The amendments then provide that for these purposes 'if the union possesses information as to the number, category or workplace of the employees concerned, a notice must contain that information (at least)'. The notice to be given about industrial action is in similar terms. The Court held that RMT had failed to do this.

112The TUC objected to the inclusion of this new requirement at the time the Bill was going through Parliament. For unions whose members are dispersed in various locations doing various jobs, particularly if the employer does not operate a check off system, it can be practically impossible to provide such detailed information as the employer may require without providing names. It was predicted by unions and the TUC that employers would make use of this part of the legislation to obtain injunctions. During the debate on this part of the Employment Relations Bill, the Government said that they wanted to 'reduce the very large administrative burdens on unions which would delay or frustrate the organisation of industrial action' but this did not make any impact on the Court of Appeal in this case, where one of the judges said 'it was not intended to make it easier for a union to prepare notices … and indeed it is clear from the facts of this case that it may make the task more onerous'.

113A similar problem arose in the case of City of Westminster Council v UNISON. In this case, during which extensive reference was made to the RMT case, the Court held that the union had complied with the new requirements. The position now is in many ways worse than it was before the implementation of the Employment Relations Act. Unions are put into the invidious position of having to decide whether by complying with the letter of the law they allow the employer to make provisions which render the industrial action ineffective or whether to risk an injunction by not providing detailed information. To provide sufficient information will, in many cases, require the union to identify individual workers, for example, certain teachers in a school. This makes a nonsense of the Government’s stated intention to overrule the Court ruling in the NATFHE case in which unions could be required to give the names of those being balloted.

114In any event the legislation must be clear; whether or not the legal requirements are complied with will determine the potential civil liability of the union. Lack of certainty usually benefits the employer, particularly in relation to injunctions, which are now regularly granted. Civil liability can give rise not only to injunction proceedings but also to compensation claims, where the limitation period is six years after the action complained of. The paper by Professor Ewing, which has already been made available to the DTI, includes amendments that will, the TUC believes, fulfil the Government’s stated intention and clarify the law in this area.

Definition of a trade dispute: s244 of the TULRCA 1992

115In order to qualify as a trade dispute, the dispute between workers and their employer must relate wholly or mainly to one or more of the matters listed in s.244 of the legislation. In UNISON v University College Hospital, the Court held that the definition of a trade dispute could not apply to cover a dispute about the 'terms and conditions of employees of a third party [the consortium which was to build and run the new hospital to which the employees would be transferred] who have never been employed by the employer who is to be the subject of the strike action'. This case affects the way in which workers can take protective action when their employer is being re-structured and could have implications for any fair wages policy. The union pursued this case in the ECHR on the basis that the legislation violates the right to freedom of association in art. 11 of the European Convention on Human Rights (now incorporated into the Human Rights Act 1998). The ECHR did not uphold the union’s objection though the case does have important implications for the protection of the right to strike under art.11 of the Convention.

116In the more recent case of Westminster City Council v UNISON (also referred to above), the issue of whether or not there was a lawful trade dispute arose. This case concerned a dispute about the privatisation of council functions under the Housing Act 1996. In this case the union convinced the Court of Appeal that this was a dispute 'predominantly about the change in the identity of the employer' rather than 'public policy issues' and for that reason was covered by the immunity even in its current narrow form. Whether or not a dispute of this sort is regarded, as a trade dispute is uncertain and unpredictable.

117In the recent case of P v NASUWT the employer argued that there was no legal trade dispute because the union was coercing the employer to do something, which it could not lawfully do. This was refuted by the union, which successfully argued that there was a legitimate alternative available to the employer. The employer appealed on this point but failed again at the Court of Appeal. The case is now awaiting determination in the House of Lords.

118There is one additional problem with the definition of a trade dispute in the legislation. In some cases a management decision which workers are concerned about may not have been taken by their employer but by another company in a corporate group of which their own employer is a part. In legal terms the dispute may be with the company, which took the decision (for example to close the enterprise), which may not as a matter of law be the company, which hires the workforce. In these circumstances there is no trade dispute within the statutory definition because the dispute is not between workers and their employer: it is a dispute between workers and an associated company of their employer. There is no protection even though the companies are owned and controlled by the same people. So far as the courts are concerned the companies have a separate legal personality and a separate legal identity. Before 1982 this was not as great a problem as a trade dispute could occur between workers (or a trade union) and any employer.

119This problem was considered by the ILO Committee of Experts in 1989. Concern was expressed that 'the fact that the definition now refers only to disputes between workers and 'their' employer could make it impossible for unions to take effective action in situations where the 'real' employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the 'employer' of the workers concerned but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute'. The TUC believes that the legislation should be amended as suggested in the paper by Professor Ewing, referred to above, to prevent employers from using this weakness in the legislation to circumvent lawful disputes.

Prevention of the supply of goods or services: s. 235A of the TULRCA 1992

120This section of the legislation provides that individuals can make claims against unions if they have done, or are likely to do 'an unlawful act to induce any person to take part, or to continue to take part, in industrial action, and an effect, or a likely effect, of the industrial action is, or will be to: i) prevent or delay the supply of goods or services, or ii) reduce the quality of goods or services supplied to the individual making the claim'. In the recent case of P v NASUWT, also referred to above, the industrial action comprised a refusal to teach P. Alternative teaching was provided to P through one to one supply teaching.

121P was able to progress the claim on the basis that supply teaching comprised a potential reduction in the services supplied to him. Alternatively it was argued that the industrial action was an action in tort because it induced a breach of the statutory duty of the school and/or a breach of the Human Rights Act, which provides a right to an education. In the event, P’s application for an injunction before the High Court and the Court of Appeal was unsuccessful. However, a number of issues of concern about this aspect of the legislation arose during the hearing.

122Section 235A is wide in its terms. An individual wishing to make use of this section does not need to establish any loss, can apply for an order notwithstanding that the reduction in quality of goods or services (or indeed a delay in the supply of goods or services) is not material and can make the application even if not entitled to be supplied with the goods or services in question (235A(3). If the court is satisfied that the claim is well founded it has no discretion - 'it shall make such order as it considers appropriate…' - and must make an appropriate order so that no further action is taken to induce anyone to take part in industrial action.

123Furthermore, if somebody like P believes that there has been a reduction in the quality of the services supplied to them then they have a claim unless the union can demonstrate that it is entitled to rely on statutory immunity (ie, has conducted the ballot in accordance with the law). What is left open is the question whether or not somebody like P can make the allegation against the union and at the same time seek clarification that the relevant statutory steps have been taken. In such a situation the union could be required to provide evidence to the complainant that they had complied with the law even where the employer had not taken action against the union.

Accidental errors: misprint in the legislation: paragraphs 232B

124There was some focus on this section of the legislation in the case of P v NASUWT, also referred to above. Section 232B provides that: 'If (a) in relation to a ballot there is a failure (or there are failures) to comply with a provision mentioned in subsection (2) or with more than one of those provisions, and (b) the failure is accidental and of a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot, the failure (or failures) shall be disregarded. (2) The provisions are s.227 (1), 230 (2) and 230 (2A) (which refer to those who are to be balloted). It was accepted in the court case by both parties and on behalf of the Attorney General that there was a misprint in section 232(B) (2) and that the reference to section 230 (2A) was inappropriate and that the reference should have been to 230 (2B). An amendment therefore needs to be made to the legislation to rectify the error.

125One other problem drawn to the attention of the TUC by affiliated unions is the practise by some employers of making excessive deductions from wages after industrial action or docking pay for 'partial performance' or failure to sign an undertaking to provide a 'faithful service'. The Government should make it illegal to do this and should give workers the right to complain to the Employment Tribunals when it occurs.

Disciplinary Grievance and Hearings: s.10 - 15

126The TUC welcomed the important new right for all workers to be 'accompanied' by their union representative or a colleague at workplace grievance and disciplinary hearings. The TUC did strongly object however to the replacement of the word 'represent' in 'Fairness at Work' by the word 'accompany' in the Bill. The word 'accompany' is tightly defined in the legislation so that the 'companion' is restricted to making an opening statement then simply conferring with the worker during the hearing. The TUC argued strongly that the word 'represent' should be used, as this allows the representative to play a full and effective part in the proceedings. The word is commonly used in collective agreements and is consistent with the requirements of Article 11 of the European Convention on Human Rights (now incorporated in the Human Rights Act 1998). The full involvement of union representatives in proceedings will affect the perceived fairness or otherwise of the process should legal proceedings follow.

127The Wilson/Palmer judgment means that this section of the ERA will have to be re-written. The judgement says that trade union members must not be prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers (para.46). There are two a major changes which the TUC believes are now required. It is not clear what the difference between accompaniment and representation are in practice but in the Oxford English Dictionary important distinctions are drawn, suggesting that representation means that someone acts on behalf of another or as their agent. The companion under s.10 is more than a companion in that they can address the hearing but they may not answer questions on behalf of the worker. A representative is someone who would act on behalf of the worker in all respects; the person who presents the case, listens to counterpoints and responds on behalf of the worker.

128The current legislation is restricted by a requirement that grievances must relate to existing duties of the employer, which means that it cannot be exercised where the worker is seeking to renegotiate terms and conditions, for example where he or she wants a pay rise. The ECHR judgment does not qualify the circumstances in which a worker can exercise this right nor does it restrict this right to recognised unions. The TUC accepts that this could present problems where there is a recognised union with sole bargaining rights and workers in the bargaining unit, or beyond it, are members of a different union. The TUC believes that this potential problem could be addressed by relying on art.11(2) of the Convention.

129This allows the right to associate, applied in this instance to the right to be represented, to be restricted under certain circumstances where it was deemed necessary in a democratic society on one or more of a number of grounds, including the protection of the rights and freedoms of others. In UK law, this would allow for a restriction where there was a recognition agreement, whether achieved voluntarily or under the statutory scheme, whereby the recognised union would have sole bargaining rights on the issues covered by the collective agreement. This would not prevent the recognised union from reaching an agreement with another union that it could represent its own members and any restriction of the kind proposed would not apply to representation on matters other than those specified in an existing collective agreement.

130The 'companion' should be given rights of access to the worker and to relevant documentation before the hearing. All employers are now obliged under the Employment Act 2002 to have minimal grievance and disciplinary procedures in place; where hearings take place under the terms of these procedures, the right to be accompanied in s.10 is triggered. There are some other points in the legislation where the wording may give rise to problems, for example, the request to be 'accompanied' has to be 'reasonable'. To date, as far as the TUC is aware, there have been no complaints made to Employment Tribunals about breaches of this new right, so it is not clear yet what problems may arise, other than those identified above relating to the scope of the legislation. If problems do arise, and unhelpful case law develops, the TUC will seek a meeting with the Government to discuss how to remedy the situation by amending the legislation further. In the meantime, the following amendment should be made.

131One additional point of concern to the TUC is that there is no obligation on an employer to inform a worker that they have the right to be accompanied. The TUC intends to raise this issue in discussions with the Government on the Regulations to implement the requirement in the Employment Act 2002 that all employers must have in place minimal grievance and disciplinary procedures, including the right to be accompanied/represented. All employees should be informed of the procedures, including the right to be accompanied/represented.

132The TUC recommends that the word 'accompany' is replaced by 'represent' throughout and that representatives are given access to the worker in the workplace before the hearing and access to relevant documents. The current restriction whereby the right is only triggered where the grievance relates to existing duties of the employer should be removed but there should be provision that on matters covered by an existing collective agreement, the recognised union has sole rights of representation in matters covered by the agreement.

Unfair Dismissal of Workers taking part in industrial action: s.16 and Schedule 5

133When responding to 'Fairness at Work' the TUC objected strongly to the eight week limitation on the proposed new protection against unfair dismissal for those taking part in protected industrial action. The TUC remains strongly of that view and the recent case involving Friction Dynamex Ltd. and the TGWU exactly illustrates our point. In this case, as soon as the eight week period ended, the 87 workers were all dismissed. If it is unfair to dismiss somebody for taking part in a lawful strike for the first eight weeks, it is equally unfair for the remainder of the strike. Under international laws supported by the UK Government, workers have a right not to suffer detriment as a result of taking industrial action. This is not a qualified right and the UK Government should not make it one.

134As indicated earlier, the Wilson/Palmer decision has implications for the right to strike, in particular in relation to the eight week limit on protection against unfair dismissal. There is no suggestion anywhere in international law that the right to take industrial action should be confined to 8 weeks, particularly where the dispute remains unresolved at the end of that period and there are no other legal means for resolving the differences between the parties. In an ironic twist, part of the UK Government’s defence in the Wilson/Palmer case was that employees can use industrial action to defend their rights. They did not say that this right only applied for eight weeks.

135The TUC proposes that the eight week limit is removed so that protection against unfair dismissal remains during the entire period of industrial action.

136Additionally, the TUC believes that multi-party actions should be available for claims under this jurisdiction, rather than each worker, who will have an identical claim, to have to submit an ET1. Interim relief should also be available on the same basis that it is available for claims of detriment or dismissal on the grounds of trade union membership. Dismissals should not be used by employers to undermine industrial action and it is therefore necessary that swift remedies are available to workers dismissed in these circumstances.

Collective agreements: detriment and dismissal: s17

137As indicated above, the TUC welcomed the decision to reverse the ruling in the Wilson/Palmer case in which it was held that 'omission' was not discrimination. On its own though this is not enough to redress the difficulties caused by the 'Ullswater' amendment, as indicated above. When the Bill was going through Parliament, the Government argued that s.17 would give sufficient additional protection to employees whose employers wanted them to give up having their terms and conditions negotiated by the union. The TUC said at the time that the proposed s.17 did not do that as it failed to reverse the 'Ullswater' amendment (now s.148 (3) of TULRCA 1992). To make matters worse, at the last minute, on the day the Bill was due to complete its passage through Parliament, the Opposition amended s.17 so as to allow employers to offer inducements to employees who sign personal contracts as long as they are not prevented from being a member of the union. They succeeded in having this amendment inserted, as the Government was anxious for the legislation to be enacted by the end of that Parliamentary session.

138It is unclear how this would fit in with the rest of the clause, let alone with Schedule 2. S.17 has not yet been commenced but the TUC believes that the current uncertainty created would have to be resolved in the courts if the Government were not prepared to amend the legislation. This would be an uncertain process in the best interests of nobody. Currently it appears that it remains permissible to discriminate against an employee for making use of the essential services of the union. The ILO Committee of Experts has rebuked the UK Government for not properly addressing this matter and urges further legislation to ensure that union members are properly protected for 'making use of the services of their union' [9] .

139The Wilson/Palmer judgment now requires the Government to amend the relevant legislation in order to ensure that UK law provides full protection for union members who make use of essential features of trade union membership. Currently, ss. 146 and 152 of the TULRCA 1992 afford protection for union members against discrimination on the basis of their trade union membership. There are three issues to consider. The first of these is the scope of the protection against discrimination, currently limited to membership and activities at an appropriate time. It seems clear now that UK law does not unequivocally meet the requirements of art.11 that trade union membership includes not just the right to hold a union card but also the freedom to make use of an essential feature of union membership. These features include representation by a trade union, the regulation of working conditions by a trade union, the use of union services and benefits, as well as other matters. The TUC believes that in order to provide certainty in UK law, ss. 146 and 152 of the TULRCA must be amended to ensure that protection for trade union membership in UK law includes protection for using the benefits and services which membership provides.

140The TUC is advised that it would not be appropriate to leave the matter to be dealt with by the courts under the Human Rights Act 1998. s3. This is an area where Parliament has a responsibility to make the law as clear as possible. It should not be necessary for workers to litigate all the way to the House of Lords to determine how far it is possible to construe TULCRA ss. 146 and 152 consistently with art. 11.

141With regard to s.17 of the ERA there are two options. The first would be to activate this provision (it has not yet been commenced) so that regulations can be put in place to deal with cases where a worker is subject to a detriment or is dismissed because he or she refuses to enter into a contract which includes terms which differ from the terms of a collective agreement which apply to him or her. However, if ss. 146 and 152 of TULRCA were to be expanded to provide protection for using the essential services of a trade union in line with the decision of the ECHR, s.17 of the ERA as proposed would be rendered redundant. This is because all forms of discrimination for making use of the service of a union would be unlawful, and not just discriminate where a worker refused to enter into a contract that differed from the terms of a collective agreement . S.17 is in any event too narrowly drawn to meet the demand of the Wilson/Palmer decision.

142It is true to say that the case was concerned precisely with the situation of a worker subjected to detriment because he refused to enter into a contract which differed from the terms of a collective agreement but the ECHR decision ranged more widely than its immediate facts. This means that if s.17 were commenced it would still be possible to discriminate against trade unionists on other grounds relating to the use of union services and benefits and indeed the regulations would emphasise that protection from discrimination on the ground of regulation of working conditions would be exceptional. If ss.146 and 152 are expanded in line with the Wilson/Palmer decision, s.17 could be repealed.

143The other outstanding problem is s. 148(3) of the TULRCA, the 'Ullswater' amendment, which clearly permits discrimination on the ground of trade union membership, trade union activities and trade union representation, provided that this is not the only purpose of the employer’s conduct. It is difficult to reconcile any form of trade union discrimination with the ECHR decision, whether this be the only or one of several purposes of the employer’s conduct. Should s.146 be expanded to take account of the ECHR decision so that membership was defined to include services and representation, that expansion could be fatally weakened by retaining s. 148(3), which would continue to authorise discrimination on trade union grounds in prescribed circumstances. This is not to say that employers are bound to pay all workers the same where there is a collective agreement, or that there is no room for personal contracts to reward personal initiative where there is a collective agreement. It would however prohibit employers from requiring employees to give up collective bargaining rights as a pre-condition for doing so. It also means that differences in pay in a bargaining unit must be subject to the important proviso that they are wholly unrelated to trade union membership or the use of the essential services of a trade union.

144The TUC proposes that ss.146 and 152 of TULRCA are expanded to include protection for using the essential services of a trade union. The TUC also proposes that as a corollary to this, s.17 of the ERA is repealed and s. 148(3) of the TULRCA is repealed.

Agreement to exclude dismissal rights (waiver clauses): s.18

145The TUC welcomed the abolition of waiver clauses for unfair dismissal in fixed term contracts. The TUC argued in its submission on 'Fairness at Work' that waiver clauses relating to statutory redundancy should also be abolished. The TUC now welcomes the decision of the Government on the implementation of the EU Directive on Fixed Term Contracts that such waiver clauses are now illegal.

Power to confer rights on individuals (employment status): s.23

146The TUC welcomed this clause, which gives the Government power to confer employment status on individuals, although we believe that the best way to ensure that all workers are covered is to ensure that all employment legislation refers to 'workers' rather than 'employees'. A growing problem in UK employment law, reflected in a number of recent court cases, is the question of employment status. Currently, some employment protection applies only to those defined in law as 'employees' and other protection applies to those defined as 'workers'. The Regulations, which transpose the EU Directive on Parental Leave, only cover 'employees', which reduces their scope considerably and means that those workers most in need of statutory protection are not covered. It is not always clear to the Tribunals which category an individual falls into, let alone to the individual concerned.

147The TUC welcomes the Government’s current consultation exercise on this important issue and will be making a response that will reflect the concerns of affiliated unions, some of whose members are directly affected by these problems of definition.

Certification Officer: s.29 and Schedule 6

148The TUC welcomed the abolition of the two posts Commissioner for the Rights of Trade Union Members and Commissioner for Protection Against Unlawful Industrial Action. The functions of the former were taken into the remit of the Certification Officer (CO). The TUC believes that this was unnecessary and may have led to the current situation in which the CO is obliged to hold a hearing when he or she receives a complaint which is within his or her jurisdiction unless both parties agree not to have one. As his or her jurisdiction was extended in the ERA to cover breaches of a union’s Rule Book in relation to specified issues, including elections, the number of hearings has increased sevenfold.

149The TUC takes the view that this represents a 'burden on the business' of running a trade union and has allowed a number of vexatious and frivolous applications which waste both the union’s and the CO’s time. In his Annual Report for 2000-2001, the outgoing CO said: 'It is my view that I have no discretion to preclude cases where the papers may fail to demonstrate an arguable case for a breach. Further, unlike the courts I have no powers to turn cases away that I regard as frivolous or vexatious … the resources of the CO and of trade unions can be taken up with issues where it is arguable that neither the substance, nor the strength, of argument really merit the expenditure of taxpayers’ money' [10] The TUC proposes an amendment to all parts of the legislation which require the CO to allow the applicant and the union an opportunity to be heard to give the CO discretion not to afford the parties that opportunity. The TUC also proposes that the Government considers the possibility of giving the CO powers to conduct a preliminary review of an application before proceeding to a hearing, with powers not to proceed to a hearing if the case appears misguided or vexatious.

150Another problem with resource implications for unions has arisen recently in relation to an 'old' part of the 1992 Act. In June, the EAT upheld a decision by the CO that union Presidents, unless the post is purely functional, must be elected by a full postal ballot of the membership. In this case, the union’s Executive Committee, which was elected by the whole membership as required in law, then chose the President from among their number. The union argued that the President had been elected by the whole membership. The CO and subsequently the EAT held that the legislation was drafted in such a way that it was necessary to hold specific and separate elections for the post of President, except under certain limited circumstances. It seems to the TUC that to require unions to organise a second ballot for the post of President of the union, in circumstances where the President has already been elected to their EC in that way, is to impose unnecessary burdens on unions. The TUC proposes that the wording of s.46 is re-drafted so that where the President is an elected member of the EC; there is no requirement for a second election to be held.

151The TUC is concerned that there is nothing in legislation to prevent the CO having to hear a subsequent application for a certificate of independence from a union that has recently been refused one. Occasionally a party will attempt to have what is essentially the same application heard again after the CO has recently reached a decision. This wastes time and resources for all concerned. The TUC proposes that the CO is given powers to refuse to hear an application again from the same union within three years of a previous application. The three year bar could be applied in the same way that it applies in the statutory recognition legislation, that is, to the same or a very similar application.

Unfair dismissal: special and additional awards: s.33

152The decision to align the former special and additional awards was presented as a 'tidying up' operation. In fact the replacement of the special award for discrimination on grounds of trade union membership with the enhanced additional award has led to a situation whereby the upper limit for such awards has been reduced. Although the Tribunals never awarded the full amount, it can be seen in other jurisdictions that depressing the upper limit has the effect of depressing the median award. Discrimination against workers on the grounds of trade union membership is rightly illegal and should attract additional compensation. There is no reason to regard such a breach as any less serious than it was when the legislation was first enacted. It would not complicate matters to re-introduce the special award and to remove the upper limit altogether, as is the case with discrimination awards more generally. The TUC urges the Government to re-introduce the special award without an upper limit for cases of discrimination on grounds of trade union membership or activity.

Breaches of employment rights legislation: indexation of amounts: s.34

153The TUC welcomed the introduction of mandatory upratings of compensation for breaches of statutory rights; the TUC would urge the Government to amend paragraph (2) so that the amount is pegged to the Average Earnings Index rather than the Retail Prices Index, as compensation is supposed to relate to lost wages rather than the cost of living. We also urge the Government to lift the cap on a week’s earnings and to restore it to its historical value, as it has been eroded in past years when successive Government’s refused to update it.

154The TUC also welcomed the decision of the Government to raise the upper limit on unfair dismissal compensation to £50,000 (now £52,600) and to index link annual increases. In our submission to 'Fairness at Work' the TUC argued strongly for all employment protection compensation to be unlimited, in line with discrimination and whistle blowing awards. The Employment Tribunals have been perfectly able to judge the appropriate amount of compensation in these jurisdictions, where the median award did not escalate when the cap was removed. To impose an upper limit has the effect of artificially depressing the median award and is unfair on those workers who have been in their current jobs for a long time and have acquired pension rights and other benefits. The TUC urges the Government to remove the upper limit on compensation in all jurisdictions, including breach of contract.

Rights from Day One

155Although the decision to lower the qualifying periods for unfair dismissal, written reasons for dismissal and additional maternity leave were welcome, the TUC is firmly of the belief that a breach of the law is as serious on the first day of a worker’s employment as it is on the 366^th. This is the spirit of the discrimination legislation and of health and safety legislation. The one year qualifying period for unfair dismissal protection and the two year qualifying period for statutory redundancy pay encourage employers to use fixed term contracts lasting for less than one year in order to avoid employment obligations. This would be equally true of six month, three month or even one month qualifying periods. The TUC urges the Government to legislate for all employment protection to begin from Day One of employment, with a continuation of existing pre-employment protection on discrimination.

156Access to statutory redundancy pay, which is based on a cumulative principle, should start from day 1. Where this would result in a payment of less than an agreed amount, eg, £100, there should be a minimum rate. Thresholds of any length encourage unscrupulous employers to use fixed term contracts to avoid employment protection obligations. EU employment Directives do not include qualifying periods; indeed, the UK Government recently lost a case in the ECJ on the qualifying period that the Government had imposed in the Working Time Regulations [11] and has subsequently had to remove the qualifying period.

157The new Regulations on Fixed Term Contracts will ease this problem but not by any means eliminate it. Removing the qualifying period would ensure that employers only used fixed term contracts for good reason

Other matters: zero hours contracts and seafarers

158There are two other issues not specifically covered in the ERA, one of which was included in 'Fairness at Work' and the other of which is a longstanding and concurrent problem on which the TUC has recently written to the Secretary of State. The first is zero hour contracts and the second is the exclusion of seafarers from existing employment legislation.

159In 'Fairness at Work' the Government invited views on the use of zero hours contracts, suggesting that this had led to abuse by some employers. The TUC concurred with this view and urged the Government to make them illegal. The Government subsequently decided that the Working Time Regulations, together with the National Minimum Wage, would prevent further exploitation. The TUC disagrees and has evidence of employees who are required to be available for work when needed and only paid for the time actually worked. Neither the Working Time regulations nor the National Minimum Wage Act have eliminated this abuse because there is some uncertainty as to whether the former do make it clear that a worker is at work when they are at the employer’s disposal and if they do not provide that protection, then the NMW may not apply to the hours when they are not deemed to be at work. Because of the continuing uncertainty, the TUC urges the Government to review the issue of zero hours contracts to ensure that existing protection does make it illegal for employers not to pay people who are contracted to work but not actually required all the time.

Seafarers

160In January 2001 the TUC wrote to the then Secretary of State for Trade and Industry urging him to look into the matter of employment protection for seafarers. The TUC is concerned that seafarers are excluded from certain employment legislation, including the ERA. Although the inclusion of offshore workers in the recognition provisions was welcome, this does not address the issue of seafarers, who are excluded if their ships are registered outside the UK or if they are not normally resident in the UK or if all their work takes place outside the UK. The TUC is aware of the work done by the Shipping Industry Task Force and believes that some of the issues identified by the Task Force should be addressed by the DTI.

161In addition, there are problems for the growing number of casual workers, particularly in the ferry industry during the summer season. The TUC will be making detailed representations on seafarers in our submission to the Government’s review of employment status.

Other TUC Concerns

162There remain some other issues of concern to the TUC. These issues are the subject of resolutions carried at recent TUC Congresses. They do not include matters on which the Government is currently consulting or likely to be consulting in the near future, as the TUC will make separate submissions on these. Such matters include the EU Directive on Information and Consultation, the review of employment status and the review of the TUPE Regulations. Neither does the paper cover the important issue of equality and discrimination legislation, as the TUC has made separate submissions to the Government on these issues.

The law on unfair dismissal

163Protection against unfair dismissal was originally introduced under the Industrial Relations Act 1971. It was simple in construction, setting out the conditions under which a dismissal could be fair, using definitions relating to capability and conduct. The legislation has subsequently been amended so that for dismissals related to certain issues, there is an automatic finding of unfairness. These issues include pregnancy, discrimination, trade union membership and asserting a statutory right. There was originally a six month qualifying period for unfair dismissal claims. This was raised to one year, then to two years under the first Conservative Government, and then reduced to one year by the Labour Government in 1999.

164The remedy for a finding of unfair dismissal is re-instatement or re-engagement (this was intended as the prime remedy) or compensation, which comprises two elements. There is compensation for wages or salary lost following the dismissal to which a cap of £250 on a week’s pay applies and a compensatory award which is capped at £52,600. The law on unfair dismissal only applies to 'employees' not to workers, except in the 'automatic' categories. The TUC acknowledges that the Government is currently conducting a review of employment status under the powers it has under s.23 of the Employment Relations Act 1999; this could result in a new definition of 'worker/employee' or at least the re-designation of workers who are unfairly disadvantaged by this exclusion.

165Since the legislation was introduced, a considerable body of case law has developed giving guidance to the Employment Tribunals on how to apply the statute. This case law has now distorted the original intentions of the legislators. In particular, the 'band of reasonable responses' test, set in the case of Iceland Frozen Food, prevents the tribunal from imposing its own view in place of the employer’s and discourages them from properly assessing the substantial fairness of the facts presented in the case. Tribunals should be able to ask whether an employer’s decision is reasonable in light of the circumstances of the particular case, with regards to its merit and to equity.

166The provision in the Employment Act 2002, which reverses the Polkey judgement, whereby if a procedure was unfair that could render the dismissal itself unfair will have a significant impact on the way in which the tribunals judge unfair dismissal claims in future. Tribunals will now be able to ignore procedural shortcomings over and above the minimal procedures set out in the Act. The TUC believes that this change is likely to work against applicants and discourage employers from establishing good procedures. The TUC believes that it is time for a wholesale review of the law on unfair dismissal. New legislation is needed which will be based on employment relations standards, requiring Employment Tribunals to use an investigatory rather than an adversarial approach, with no qualifying period and uncapped compensation, so that the applicant is properly compensated for loss and with a stronger emphasis on re-instatement or re-engagement. The law on recovery of compensation should also be strengthened.

167If the Government agrees to conduct a review of unfair dismissal law, the TUC would make a comprehensive submission based on the experiences of affiliated unions in using the law.

Diversity, Flexibility and Working Time

168For millions of working people the quality of working life is too low and far too often technological advances have been used to increase profitability and managerial control rather than the conditions of employees. A new focus has to be given to improving the organisation of work and the quality of working life. This will involve continuing attention to the 'work/life' balance and to the equality agenda. Work/life balance is about more than caring responsibilities though this is where the issues are most acute. Specific measures to support workers with family responsibilities should include paid parental leave, together with increases in Statutory Maternity Pay and other support to enable mothers to remain at home for the first year of their baby’s life then return to work initially on reduced hours. The new right to paid paternity leave is welcome but should be extended to cover all fathers. The new right to request to work flexibly should be strengthened so that workers have a direct right to work flexibly. The national childcare strategy should continue, with special attention given to the childcare needs of parents of under threes and those working on shifts or unsocial hours and students.

169Anti-discrimination laws need to move away from the emphasis on individual litigation to a regime that promotes equality and prevents discrimination. There should be a new proactive equal pay regime. New EU laws on discrimination on the basis of age, sexuality and religion should be introduced generously within this context.

Working Time

170Action is needed on the implementation of the EU rules on working time. It is essential that protection is now extended to cover the so-called excluded sectors: transport, workers at sea and junior doctors. The continuation of the UK’s long hours culture is bad for competitiveness and bad for employers as well as for employees. The WTD is a health and safety measure and was adopted to reduce the level of accidents in the workplace, cut absenteeism due to sickness and enable workers to strike a balance between home and work life. If the Government wishes to promote a better work/life balance it should remove the so called 'individual opt out' from the Regulations whereby people can work for more than 48 hours a week, without limit. When the measure is reviewed in 2003, the UK Government must not place any obstacle to repealing the opt-out in the Directive. The TUC would draw the attention of the Government to the recent decision of the EC about overtime. The EC stated that the UK Working Time Regulations contravene the Directive because they exclude overtime hours on night shifts and because people can choose to work additional hours which are unmeasured by the employer. In addition, currently it is possible in the UK for employers to count bank and public holidays as part of the statutory four weeks leave entitlement; this is unfair and unpopular and should be prohibited.

Time off rights for trade union officers

171The law giving trade union officers rights to paid time off for trade union duties has been little changed either in statute or by case law. The Employment Act 2002 will introduce new rights to paid time off for union learning representatives, which is very welcome. ACAS will be revising its current Code of Practice on time off, to include the new rights. This revision will not be able to amend existing law though and the TUC believes that some changes may be necessary.

172The recent WERS survey shows that employers are reluctant to give trade union representatives sufficient time off to be able to perform their duties as effectively as possible. It is easy for them to put pressure on representatives for 'business' or organisational reasons. The TUC would like to see the law include a tougher requirement on employers to justify a refusal to give time off on the range of issues specified. The Government should do more to promote the importance of trade union representatives in the workplace; this would assist with their stated desire to improve workplace dispute resolution and avoid individual rights litigation.

Trade Union law

173One area where there is excessive red tape and regulation is the law affecting the organisation of trade unions. Following representations by the TUC, the Government’s Better Regulation Task Force wrote to the Secretary of State for Trade and Industry recommending that the Government review this legislation. In his letter to the Secretary of State, David Arculus, Chairman of the Better Regulation Task Force said: 'When the Task Force researched its Report 'Employment Regulation: Striking a Balance' a number of issues were raised with us about regulations covering the governance of trade unions. We agree with the trade unions that, whilst these regulations were outside the immediate scope of the report, we would nevertheless raise them with you as they appear to impose unreasonable burdens on trade unions'. The issues in Mr Arculus’s letter were: election of union Presidents, union political funds, requirement for the CO to hold hearings and internet and telephone balloting.

Union Elections and Ballots

174In the main, unions have accepted the principle of having elections for key posts, for political funds and for their Executive Committees. Nevertheless, the regulatory requirements on unions in relation to elections and ballots are onerous and in some areas unnecessary. We believe that there is a compelling case to review the whole of the law on union elections and political funds to see where improvements could be made. For the purposes of this submission we summarise areas where the regulatory requirements on unions are self-evidently unnecessary and suggest reforms, which could be made in the short term. Two other issues, election of union Presidents and the new powers of the Certification Officer, are specifically covered in the section above on the Certification Officer.

Union political funds

175The TULRCA 1992 provides that trade unions which maintain political funds [12] (money collected from members to be used specifically for pursuing political objectives) must ballot their members every ten years to determine the continued operation of such funds. There are rules governing the conduct of such ballots, including a requirement that the ballots must be fully postal. Where an employer operates a check-off system, whereby union subscriptions are deducted by the employer directly from the member’s wage and passed on to the union, the political levy must be specifically excluded by the employer where the member has contracted out of it. Until 1984, it had been possible for employers to deduct the entire amount from all members’ wages with the union then re-paying the member if they had contracted out.

176As it is possible for union members to opt out of the political fund and there is a statutory requirement for unions to include in their Rule Books specific details of how the fund operates, what can be done with it and how to opt out of it the TUC believes that the requirement to ballot all members every ten years is unnecessary and burdensome on the union. The ballot must be conducted under the same strict conditions as those applying to union elections and therefore incurs considerable cost, both financially and in terms of resources. Now that there is new legislation in place governing the funding of political parties, which identifies the political expenditure of individual unions, it seems superfluous to have a third hurdle in place. In his letter to the Secretary of State, the Chairman of the Better Regulation Task Force said: 'Given that trade union members can opt out of the political fund and that there is legislation in place governing the funding of political parties, which identifies the political expenditure of individual unions, is it still valid to ask trade unions to ballot all their members every ten years? The conditions which apply to these ballots, including the adoption of lengthy and complex rules for the holding of each ballot, are as strict as those applying in union elections. This makes the political fund ballots very costly both financially and in terms of resources.' The TUC proposes that s.73(3) of the TUCRCA 1992 is deleted.

Unjustifiable Discipline of Union Members

177Ss. 64 - 67 of the TULCRA 1992 prevent unions from disciplining their members, for example by expelling them or by fining them, for a number of stated reasons, including a refusal to participate in a strike, refusal to permit direct deduction of union subscriptions from wages and joining another union. Joining (or not joining) a trade union in the UK is entirely a voluntary act, now protected in the Human Rights Act 1998. In common with other voluntary organisations, trade unions should be allowed to set their own rules and devise their own constitutions. As long as these do not break statutory laws, for example on discrimination, unions should not be unreasonably restricted in terms of their organisation. When a worker joins a union, they pay a subscription and enter into a contract with that union under which they are expected to abide by the rules of the union. There is no justification for treating unions differently in this respect than other voluntary organisations. Arguably, the Human Rights Act has created a right for unions to devise their own rules in terms of their relationship with their members.

178Restricting the rights of unions in this way is also in violation of Convention 87 of the ILO which states: 'Workers and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their own programmes. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. '

179In that case the ECHR made it very clear that other international treaties dealing with freedom of association are relevant in the interpretation of art.11. The supervisory bodies of both the ILO and the European Social Charter have found that ss.64-67 of the TULRCA 1992 violate ILO Convention 87 and the Social Charter, art.5, respectively. This strongly reinforces the view that these particular sections of the 1992 Act also violate art.11 of the Convention, a view which is strengthened still further by decisions of the English courts both before and after the Human Rights Act 1998 [13] .

180Ss.64 to 67 of the TULRCA 1992 should be repealed. Unions should be free to decide their own admission and disciplinary rules. This should be subject only to general laws such as those against impermissible discrimination.

Uncontested elections

181Where a union election is uncontested, it should not be necessary to appoint an independent scrutineer to supervise proceedings, particularly as they do not have to run an election in these circumstances. A decision of the CO (D/7/94) held that it was a requirement under these circumstances to appoint a scrutineer.

Summary of Proposals

Statutory recognition

• The TUC urges the Government to include training and equality in the matters specified for collective bargaining

• The definition of pay should explicitly include occupational pensions

• The Government should abolish the 21 worker threshold so that all businesses are covered by the scheme regardless of how many workers are employed

• All the 20 day periods specified in the Schedule for negotiation between the parties should be reduced to 10 days and where the CAC has discretion to grant a further extension this should be qualified by the addition of the words 'after consulting with each [party]'

• In the paragraphs relating to the determination of the bargaining unit, paragraphs 19 (3) and (4) should be merged so that they say: 'In deciding the appropriate bargaining unit the CAC must take these matters into account: (a) the views of the employer and the union(s), etc'.

• Paragraphs 22 (3, 4 and 5) and consequential amendments in other paragraphs (qualifying conditions for holding a ballot where the union has 50 per cent membership) should be deleted.

• Unions should be given rights of access to the bargaining unit from the day on which their application for recognition is accepted. The Code on Access should be amended accordingly and should be generally reviewed to ensure that it is working in practice.

• The provisions on admissibility should be amended so that where a TUPE transfer has occurred, a recognised union can apply for an extension of their bargaining rights to cover workers already employed in the company. In addition, only a recognition agreement with an independent union should be able to render an application for recognition inadmissible.

• The 40 per cent 'yes' vote requirement should be replaced with a requirement for the union to win a simple majority of those voting in the ballot

• The Government should give consideration to the compulsory incorporation of collective terms awarded by the CAC into contracts of employment.

• The section of the Schedule relating to changes in the bargaining unit should be substantially re-drafted to make it simpler and should be incorporated in the section on de-recognition. It should also be amended to include provision for unions who have failed to achieve recognition through the statutory processes to re-apply for recognition within the three year moratorium where they can demonstrate that their support has substantially increased or where a change in the bargaining unit has increased the percentage of their membership.

• Only recognition of independent unions should act as a bar to applications for recognition. If this is not acceptable, Part 6 of the Schedule should be amended so that independent unions have the right to apply directly to the CAC for de-recognition of non-independent unions. The CAC would test the applicant union’s membership levels in relation to the bargaining unit specified by the applicant union. The CAC would then decide whether or not to accept the union’s proposed bargaining unit. The union would be given the opportunity to withdraw its application without attracting the three year moratorium if the CAC determined a bargaining unit which was substantially different to that defined originally by the union. The union would have full access rights following acceptance of their application.

• There should be legal protection against unfair labour practices during recognition applications, with injunctive relief available to unions.

• Consideration should be given to giving the CAC powers to order the employer to disclose relevant information to the union before it submits its application to the CAC.

Industrial Action and Ballots

• Workers should have a right to take industrial action, including solidarity action, without being deemed to have broken their contracts, where a majority of workers in a bargaining unit support it

• The Government should amend s.226 of the TULRCA 1992 so that unions do not have to provide detailed information to employers in notices.

• The Government should also amend s.244 of the 1992 Act which gives a definition of a trade dispute so that workers may take action where re-structuring or transfers is likely to affect their terms and conditions or where employers transfer production to an associated business in order to circumvent the effects of industrial action.

• S.235A should be reviewed as the extent to which an individual can make a claim against a union for not providing a service is unclear. In addition, ss.227 and 230 needs to be amended to rectify the misprint identified in the case of P v NASUWT.

• It should be illegal for employers to make excessive deductions from wages from workers who have taken part in industrial action; workers should have the right to complain to the Employment Tribunals when it occurs.

Individual Rights

Disciplinary and Grievance hearings

• The word 'accompany' should be replaced with 'represent' throughout; representatives should be given access to the worker in the workplace before the hearing and access to relevant documents; it should be compulsory for all employers to have grievance and disciplinary procedures based on the ACAS Code.

• The definition of a grievance should be extended to cover negotiations over pay and basic conditions, with exclusive rights for recognised unions.

Unfair Dismissal of Striking Workers

• The eight week limit should be removed so that protection against unfair dismissal remains during the entire period of the industrial action. Multi party actions should be available for claims under this jurisdiction. Interim relief should be available for claims under this jurisdiction.

Collective Agreements: Detriment and Dismissal

• Ss.146 and 152 of the TULRCA should be expanded to include protection for using the essential services of a union. The TUC also proposes that as a corollary to this, s.17 of the ERA is repealed and s.148(3) of the TULRCA is repealed.

Employment Status

• Ideally, the word 'worker' should replace the word 'employee' in all employment protection legislation. The current review of employment status must at least result in adequate employment protection for all workers.

Unfair dismissal: special awards

• The special award should be re-introduced, without an upper limit, for cases of detriment or dismissal on grounds of trade union membership or activity.

Breaches of employment rights legislation: indexation of amounts

• The limit on a week’s pay should be up rated annually in line with the Average Earnings Index.

• The upper limit on compensation should be removed for all jurisdictions, including breach of contract.

• All employment protection legislation should apply from Day One of employment.

Zero hours contracts

• The Government should review the issue of zero hours contracts.

Seafarers

• When consulting on s.23 of the ERA, the Government should ensure that seafarers are included.

Certification Officer

• The wording of s46 of the 1992 Act should be re-drafted so that where the President of a union is an elected member of the EC; there is no requirement for a second election to be held .

• All parts of the legislation, which require the CO to allow the applicant and the union an opportunity to be heard to give the CO discretion not to afford the parties that opportunity The CO should be given powers to conduct a preliminary review of an application before proceeding to a hearing, with powers not to proceed if the case appears misguided or vexatious.

• The CO should be given powers to refuse to hear an application for a certificate of independence from the same union within three years of a previous application.

Other matters

• The protection afforded in the Working Time Regulations must now be extended to cover the so called excluded sectors. The individual opt-out must be removed. Bank and public holidays should not be counted as part of the statutory four weeks annual leave .

• All qualifying periods for employment protection must be removed.

• The law should include a tougher requirement on employers to justify a refusal to give time off on the range of issues specified. Employers should be encouraged by the Government to do more to promote the importance of trade union representation in the workplace.

• The law on elections to union posts should be reviewed.

• With new laws in place governing contributions to political parties, it should no longer be necessary for unions to have to ballot their members every ten years on holding a political fund.

• Ss.64 to 67 and ss.174 to 178 of the TULRCA should be repealed. Unions should be free to decide their own admission and disciplinary rules. This should be subject only to general laws such as those against impermissible discrimination .

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[1] Wilson and the National Union of Journalists: Palmer, Wyeth and National Union of Rail, Maritime and Transport Workers; Doolan and others v UK [2002] IRLR 128.

[2] Speech by Tony Blair, Labour Party Conference, 2002

[3] 'Focus on Recognition', TUC, January 2001.

[4] 'Focus on Recognition', TUC, January 2002

[5] Trade Unions and Training Practices in British Workplaces by Francis Green, Stephen Machin and David Wilkinson, Centre for Economic Performance, LSE, May 1996

[6] 'Small and Medium Enterprise (SME) Statistics for the UK, 2000', DTI Small Business Service June 2001.

[7] 'Routes to Resolution: improving dispute resolution in Britain', DTI, July 2001

[8] CAC and anr.ex parte KwikFit(GB)Ltd, EWCA Civ 512, 2002.

[9] ILO, International Labour Conference, 88^th session, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A) pp. 260-261.

[10] Annual Report of the Certification Officer, 2000-2001.

[11] R v Secretary of State for Trade and Industry ex parte BECTU, IRLR 559, ECJ

[12] Since 1913 unions have been allowed to spend money on political objects; a number of conditions were imposed in terms of the objects, which could be pursued, and to require unions to ballot their members before establishing a fund and to allow members to contract out of the fund without being discriminated against.

[13] See Cheall v APEX (1983) ICR 398; RSPCA v Attorney General (2001) 3 All ER 530

Report (23,000 words) issued 17 Oct 2002