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Workplace representatives: a review of their facilities and facility time

TUC response to the DTI consultation document

March 2007

Contents

1 Introduction & summary response
2 Trends in workplace representation
3 Developing a diverse reps base
4 Union reps: adding value in workplaces
5 Problems faced by union representatives
a. Securing paid time off
b. Lack of cover
c. Pressures of work
d. Attitudes of managers
e. Other problems
6 Training and time-off for training
7 Facilities
8 Guidance
9 The regulatory framework
10 Conclusion

1. Introduction & summary response

1.1. The TUC currently represents 62 unions with a total membership of nearly 6.5 million workers. Over 200,000 union members, across the full range of industries and sectors, currently undertake representative duties at a workplace level. The TUC and its affiliated unions train and support this volunteer base, equipping them with the skills and knowledge they need effectively to represent union members and develop constructive relationships with their employer.

1.2. The TUC believes that well trained, supported, confident workplace union representatives are important for unions, workers, and business organisations alike. They also have a direct benefit for the economy was a whole. Union representatives play an important role in union democratic structures - helping to ensure they reflect the needs, concerns and aspirations of members - and in the wider community, as representatives on bodies such as diverse as local strategic partnerships and school governing boards.

1.3. This note sets out the TUC's response to the consultation document on facilities and facility time. Throughout the note are responses to some of the key questions posed throughout the consultation document. In summary the TUC believes:

• That the under - representation of women, ethnic minorities and younger people in representative roles should be addressed by developing new environmental and equality representative roles and placing the functions of these new forms of representative on a statutory footing.
• There is evidence that, even though the diversity of reps, their workload and the range of union work is increasing; employers are not commensurately increasing the amount of paid time off given to reps. Employers should be encouraged to ensure that reps receive the full amount of paid time off which they need.
• That union reps make a significant contribution to workplace performance and productivity. By increasing the number of union reps - and by increasing the training and support given to existing union reps - there is scope to build on these already significant benefits.
• There is need for an explicit reference to the need for cover/workload relief [1] arrangements in the ACAS Code of Practice on Time off for trade union duties and activities. Such a reference would hopefully spur more employers to provide cover arrangements for union reps undertaking training or their duties. If this approach is not successful consideration should be given to legislative changes requiring employers to make reasonable adjustments in workloads to provide cover for union reps taking paid time off to carry out their duties.
• The Government should, with the support of TUC, unions and employers organisations, explore ways of promoting the role of the union rep, and better management understanding of this role.
• The Code should be amended to make specific reference to the statutory protections for union members/officials suffering from detriment and dismissal. This should include specific reference to payment for paid time off for trade union duties and career progression.
• Every union rep should be entitled to paid time off to attend a minimum 10 days of accredited training in the 12 months immediately following their election/appointment. This right should be in addition to existing rights for union officials to paid time off to access ongoing training as and when required to perform their duties effectively. Further consideration could also be given to introducing a minimum entitlement to training in subsequent years.
• The Code should be amended to reinforce the rights of union reps to undergo training relevant to their trade union duties.
• The content of trade union training courses should continue to be shaped and determined by the TUC and its affiliated trade unions.
• There is scope to amend the Code to strengthen considerations relating to facilities for union reps. Currently the Code of Practice notes that employers should 'consider' making facilities available; the TUC believes that the Code of Practice should explicitly set out the 'requirement' or 'necessity' for employers to provide such facilities.
• The Code should be amended expressly to note that use of electronic and other forms of communication with members in the workplace should be made available to union reps and free from employer interference or surveillance.

1.4. As outlined above the TUC is keen to see revisions to the Code on Time-off for Trade Union Duties and Activities. The TUC also believes there is scope to amend the law on workplace representatives as outlined above, but is concerned to ensure that such potential changes do not delay other potential action (including revising the Code) arising out of the current review

1.5. The TUC recognises the importance of safety representatives in promoting safer and healthier workplaces. It has long campaigned for a greater legal role for safety representatives, including the right to issue improvement notices, represent staff employed by a different employer in the same workplace, and for a legal right to be consulted on risk assessments. We also believe there should be a specific duty on employers to respond to issues raised by safety representatives. However the TUC recognises that safety representatives have a different legal vires from other workplace representatives and that their role is determined by the Health and safety at Work Act, and the regulations made under that act by the HSC. We therefore believe that issues relating to safety representatives rights are best dealt with through the HSC, and have therefore not addressed these issues within this response.

1.6. The ACAS Code states that there can be positive advantages for employers and trade unions in establishing formal agreements on time off in ways that reflect workplace situations. These could include the amount of time off permitted and circumstances when time off will be paid etc. There may be a case for introducing provision whereby in any recognised workplace, a union has a right to negotiate with an employer agreements setting out arrangements re duties, activities, and facilities for reps as a whole.

1.7. Finally, there is a case for having a separate learning agreement at the workplace given the unique statutory duties of a ULR. In a TUC submission to the Leitch Review on Skills, we stated that when a union in a recognised workplace with ULRs seeks to negotiate a learning agreement with an employer to formalise arrangements for ULRs (including duties/facility time/facilities/time off for learners etc.) and establish a joint learning committee to implement/monitor the agreement, then that employer should have a statutory obligation to negotiate such an agreement. The presence of a formal learning agreement and learning committee would provide a valuable underpinning to the work of ULRs.

2. Trends in workplace representation

2.1. According to WERS [2] there has been a decline in the proportion of workplaces with recognised unions with an on-site union representative (down from 55 per cent of workplaces in 1998 to 45 per cent in 2004). This decline - which has occurred in both the public and private sectors - can be explained by a number of factors, including the continued trend toward privatisation and outsourcing in the public sector, a continued tendency for workplace size to decline, and the decentralisation of collective bargaining.

2.2. The union representative base is becoming increasingly diverse, as detailed in the next section. However the average union representative is still likely to be male, older and to work full-time. As the consultation document notes only four per cent of union representatives are non-white.

2.3. The TUC is concerned that WERS overstates the numbers of non-union representatives. Indeed the consultation document states, that, ' WERS is not an ideal source to estimate these numbers, and we have needed to rely here on the management interview to identify the number of representatives at the workplace'. The TUC believes that the reliance on management interviews in WERS is likely substantially to overstate the numbers and importance of non-union workplace representatives. As well as questioning the numbers and importance of non-union workplace representatives, the TUC believes that questions exist on the 'independence' of such representatives (who in many cases are appointed by managers), the accountability of these representatives to the wider workforce, and their ability to function effectively without the proper training or support that union reps are able to access. Indeed it is wrong to describe them as 'reps' since they cannot perform the same representative role as union reps if they have not been elected by, and can be held accountable to, a constituency of employees in the way that union reps are.

2.4. What is clear is that union reps play a very different role from their non-union counterparts. The review acknowledges that union representatives are more active, receive more training and perform a wider range of functions than non-union reps. There can be no equivalence between union reps and non-union 'reps' and it would be wrong to seek to equate their rights.

2.5. Union representatives spend on average 6.2 hours a week on union work compared to 2.5 hours for non-union representatives and are more likely to deal with a wider range of issues. As WERS notes, they are also more likely to have been trained - and to have other types of support in addition to training, such as access to research and advice and access to formal and informal networks (such as the www.unionreps.org.uk).

2.6. Response to question 2a: While the fall in on-site representation remains a concern for unions there are some grounds for optimism when looking at the future of workplace representation. A recent Centre for Economic Performance discussion paper suggested that overall 'off-balance sheet' support for union organisation (which includes employer support, union recognition and check-off facilities as well as union representatives), declined between 1980-1998, but stabilised between 1998-2004. [3] However, this analysis should not suggest grounds for complacency. Without positive Government support to improve facilities and facility time for union representatives, the 'thinning out' of union representation suggested by the consultation document is likely to continue. Such a 'thinning out' would damage union members, unions, employers and the economy as a whole. It cannot be addressed by seeking to bolster the numbers or position of non-union 'reps' since they cannot perform the same role. Much more help and support must be given to union reps.

3. Developing a diverse reps base

3.1. The TUC and unions are committed to ensuring that union representatives reflect the broader diversity of people at work. This commitment is reflected in the increasing numbers of women undertaking union representative roles. As the consultation document notes, in 1998 just 35% of union reps were women, but by 1998 this proportion had increased to 44%. [4]

3.2. Many unions have actively encouraged women and other under-represented groups of workers such as young workers and black and ethnic minorities to take on rep's roles. This work has included developing specific training programmes for groups of potential representatives; developing formal and informal representative's networks; and setting aside 'reserve seats' and other measures to ensure proportionality. [5]

3.3. In addition the development of the union learning agenda has done much to increase the diversity of union representatives. There are now over 15,000 Union Learning Representatives in the UK, and the proportion of these reps who have never held a union position before has, 'risen massively from 9 per cent of the overall total in 2000 to 28 per cent in 2003 and 35.5 per cent in 2005'. These new activists are more likely to be women and younger than union reps as whole. Black and ethnic minority ULRs make up 7 per cent of the total - compared to 4 per cent of the broader representative base. [6]

3.4. Despite these efforts the TUC believes that more can, and should, be done to ensure that workplace representation is sufficiently diverse. Particular attention needs to be placed on attracting a new generation of younger union representatives. Government has a clear role to play in this regard.

3.5. The success of ULRs has shown that new types of representative role can successfully attract traditionally under-represented groups to take on representative roles. Although the current review will not explicitly consider whether the functions of union environmental and equality reps should be placed on a statutory footing, it is clear that any serious discussion about how best to ensure the diversity of workplace representation should include consideration of how unions can develop new representative roles. Indeed, the consultation document acknowledges that:

'Young people are interested in equality and environmental issues...By taking forward their work in these areas, unions can demonstrate to young workers that they are relevant to their working lives and concerns. It would also help unions to recruit the next generation of representatives in the same way that issues around learning have brought new representatives into the union movement'.

3.6. Going beyond the formal terms of the Review, the TUC therefore also believes there is a strong case for Government to support unions to develop the role of both environmental and equality representatives, and to place the functions of these new forms of representative on a statutory footing.

3.7. Environmental Reps: In 2000 the DTI was the first Government department to develop a 'Sustainable Development Strategy', and the DTI's 'Sustainable Action Plan 2005/06' noted that, 'Sustainable development is central to a great deal of the DTI's work and is a key principle underlying our policies, programmes and activities'. [7]

3.8. The current review offers an excellent opportunity for the Government to develop a 'joined-up' approach to sustainable development by:

• recognising and supporting the role of union environmental representatives in addressing the climate change challenge;
• acknowledging and supporting the significant changes in the organisation of work that must accompany shifts to sustainable production and consumption; and
• providing an entitlement for union environmental representatives to attend accredited union environmental training courses.

3.9. Through the TUC's GreenWorkplaces projects, unions have shown the value of practical engagement in joint union/employer energy saving projects. [8] These projects, which have at their heart active union environmental representatives, have demonstrated:

• Enthusiasm to set up joint green workplace projects - on the part of both employees and management. Attendance at climate change events held both inside and outside the workplaces has been high. Response rates to surveys and demand to participate in 'green reps' training have been exceptionally high.
• Real reductions in energy use via behaviour change.
• Evidence from employee surveys that staff are well aware of the key areas where major carbon savings are possible, with heating and lighting most frequently identified as areas for improvement.
• Recognition by employers of the importance of employee engagement in securing real change at work, with joint environment committees already established and actively developing and enforcing environmental targets as a result of the first round of GreenWorkplaces projects.

3.10. By ensuring that union environmental representatives are able to access paid time-off to undertake training and carry out duties related to the role, government would hand a significant boost to efforts to 'green' UK workplaces.

3.11. Equality reps: The Government put Union Learning Representatives (ULRs) and Safety Representatives onto a statutory basis because they accepted the valuable role played by unions in helping to deliver Government policy in the workplace and in improving employment relations. Similarly, the Government has rightly identified promotion of diversity in the workplace and the elimination of discrimination as key issues. It would be consistent in policy terms to afford the same rights to equality representatives. It gives employers the clear message that they need to engage the voice of employees on a systematic basis in developing their own strategies and employment practices, and would serve to attract more union members into representative roles.

3.12. The TUC believes there is value in training union representatives to handle equality issues, but this would not necessarily equip them to bargain or represent workers on more specialist diversity issues. The TUC therefore proposes having designated equality representatives with statutory backing and with a remit either to be directly involved in collective bargaining on pay or to train/support generic negotiating representatives on equal pay.

3.13. The duties and functions of equality reps could include:

• Promotion of best practice on equality of opportunities;
• Compliance with all legal obligations by employers and employees;
• Training and education for all employees on equality matters;
• The investigation of complaints by employees of discriminatory practices;
• Resolution of conflicts between employees and employers on such matters, either individually or collectively;
• Conducting audits of pay systems and working conditions to identify directly or indirectly discriminatory practices and procedures;
• Making representations to the employer about discriminatory or potentially discriminatory practices, conditions, etc;
• Monitoring and evaluating the composition of the workforce, location of employees from disadvantaged groups within grading systems, impact of performance appraisal systems, grievance and disciplinary procedures and practices;
• Conducting access assessments in terms of disability;
• Negotiating targeted training and workforce development programmes for those from disadvantaged groups;
• Representing the employees they cover in consultation with the EHRC and other enforcing bodies
• Receiving information from relevant statutory authorities.
• Receiving information from the employer in relation to their duties (see below under 'Rights')
• Developing access plans to ensure that disabled workers are not disadvantaged in any way

3.14. As with other types of union representative, Equality and Environmental representatives should also be entitled to reasonable paid time off for relevant training and updating on TUC or union courses in relation to their responsibilities; be appointed or elected by recognised independent trade unions; have the right to reasonable paid time off to carry out their functions; and have a right to information from the employer to assist them in the duties set out above, e.g. pay information.

3.15. Response to question 2b: The TUC believes that the under -representation of women, ethnic minorities and younger people could be addressed by developing new environmental and equality representative roles, and placing the functions of these new forms of representative on a statutory footing.

4. Union reps: adding value in workplaces

4.1. Union reps play a vital role in representing union members at work - on a range of issues including pensions, training, individual grievances, and workplace reform. But in addition to the direct benefits that union reps bring to union members and the workforce more generally, union reps also bring a range of direct and indirect benefits to companies and organisations. The consultation document rightly outlines the contribution that workplace representatives make to workplace and organisational performance. The TUC believes that union reps account for the overwhelming bulk of this positive contribution.

4.2. As noted above, the consultation document estimates that workplace representatives, 'bring an identifiable range of benefits worth £476m-£1,133 million annually, in addition to which there may significant other gains from increased productivity [worth between £3.4-10.2bn].' The TUC believes that the net benefit of union representation in the workplaces is toward the upper end of these estimates. For example, these estimates do not take into account the role union reps may play in encouraging companies and organisations to develop a coherent approach to sustainable development or energy saving efficiencies. With regard to workplace safety and labour turnover (two of the factors assessed in the consultation document) work commissioned by the TUC concluded that,

'...there are tangible benefits from union representation in the workplace. Voluntary labour turnover is around 14 per cent lower in workplaces with union representatives. Injury rates are around 16 per cent lower. [9] These outcomes are likely to result in benefits to employers and society of at least £300 million a year.' [10]

4.3. A recent TUC report set out in detail the potential benefits that can accrue to companies and organisations that engage with effective, representative trade unions. 'Making the Difference' [11] noted that there is a strong link between unions and performance reforms, including:

• A West Midlands study found 'strong associations' between union presence and task flexibility.
• A survey of 143 large British enterprises found that quality circles were more likely in companies that recognise unions, with none in non-union companies.
• Unionised workplaces are more likely to have an employee share scheme in place than non-union workplaces.
• Unionised workplaces are characterised by employee share ownership and a much wider range of arrangements for worker participation.
• Unionised workplaces also tend to support technological change, with the shop stewards being the most favourably inclined.

4.4. The report concluded that, 'There is an abundance of evidence that strong unions with a positive relationship with employers can contribute to higher productivity and improved performance, and the quality of their workplace representatives is an essential factor. A strategy for moving firms to the high road must include support for effective and representative lay union officials.'

4.5. The positive role played by local union reps is reinforced by the findings of a recent TUC/Personnel Today survey of HR managers and union reps [12] . The survey found that most HR professionals (57%) agreed that unions are 'an essential part of modern employer/employee relations'. Some 58 per cent of HR professionals agreed that the 'union is professional in its approach' and with regard to union reps, 69 per cent of HR professionals agreed that 'contacts at the union are generally pleasant/easy to deal with'. Only 18 per cent of HR professionals disagreed with the statement that 'unions are generally a force for good'. Such findings reflect on the general positive relationships between union reps and management, and the positive influence that unions can bring to the workplace.

4.6. The consultation document looks at the current contribution of workplace representatives to workplace performance and productivity. The TUC believes there would be value in assessing the potential worth of future activity which could be supported by union reps. For example it is clear that union reps could play an important future role in developing joint union/employer energy savings projects and other sustainable development initiatives (particularly if this work was underpinned by statutory backing for union environmental reps). What might be the potential benefit of this work to individual companies and organisations and the economy was a whole? Likewise, stepping up the ability of union reps to develop the equality agenda in workplaces could result in clear benefits in terms of reduced labour turnover, productivity gains arising from flexible working and reduced absenteeism. Again, there would be clear value in assessing the value of these potential benefits - which in turn would usefully support the 'business case' for union reps playing an increased role on these, and other, issues in the workplace.

4.7. As the DTI consultation document itself notes; 'There is also evidence that unionised workplaces have better training policies and ULRs have successfully introduced many thousands of employees to training which has enhanced their productivity.' (These benefits costed on an assumption of a 3-5% premium on the average wage of those who receive additional training through the involvement of a ULR range between £94m-£156m annually).

4.8. Response to question 2c: It is clear that union reps make a significant contribution to workplace performance and productivity. By increasing the number of union reps - and by increasing the training and support given to existing union reps - there is scope to build on these already significant benefits.

5. Problems faced by union representatives

5.1. This response has already highlighted the important benefits that companies and organisations can derive from the activity of union representatives. However, it is clear that all too often union reps are prevented from undertaking their full range of duties and activities - to the detriment of both those that they represent and their employing organisations. This section of the response highlights the key problems and barriers faced by union representatives.

5.2. Securing paid-time off: As the consultation document notes, union reps need time away from their normal job to undertake their duties effectively (and also to undertake training). While WERS reports that nine out of ten union senior reps report that they are paid by their employer for carrying out their rep's duties, all too often union reps struggle to secure paid time-off. A TUC survey of union reps found that one in ten union reps receives no paid time off at all to carry out their reps duties and that 20 per cent carried out at least some of their duties in their own time. [13] A more recent TUC survey found that 16 per cent of reps say that less than a quarter of the time they spend on reps duties is paid for by the employer [14] . This is reinforced by findings from the TUC/Personnel Today survey cited above, in which 38 per cent of union reps said that their employer paid for less than 25 per cent of the time spent on their duties. The survey also found that, 'on average just 53% of the time union reps spend on union duties is paid for by employers.' [15]

5.3. Union Learning Representatives and Safety Representatives experience similar problems to those faced by the wider rep community. 30 percent of ULRs say they don't have enough time to carry out their duties [16] and a quarter of ULRs do between 1-5 unpaid hours per month of duties. Unpublished data from the TUC 2005 ULR survey shows 43.2% of ULRs do some unpaid ULR duties. In a recent survey of union safety specialists, securing paid time off for Safety Reps to carry out duties and train was cited as a 'top 3' problem by 35 per cent of respondents. [17]

5.4. According to estimates in the consultation document workplace reps carry out representative work in their own time equivalent to the value of £115m a year. However, bearing in mind the figures cited above it is likely that this figure significantly underestimates the amount of work carried out by union reps in their own time. Whatever the actual figure it is clear that many reps are undertaking work in their own time, impacting upon their work/life balance and pressures of work. This is also likely to deter people from taking on the role of the rep - as the report of the focus groups undertaken by the WLRI suggests, 'The level of commitment which it appears that workplace representatives require is likely to deter new representatives from emerging, reinforcing pressures on existing representatives'.

5.5. Lack of cover/workload relief: Even when reps have the right to take time-off to perform their duties or undertake training, quite often they are unable to take this time because there is no reduction in their workload. This is borne out by the WLRI focus group reports which concluded that , 'The major barrier to time-off for union duties is the issue of staff cover, which places both management and peer pressure on representatives'. As a result of a lack of cover/workload relief, union reps often feel that they cannot take the paid time-off to which they are entitled, and which they require to carry out their functions effectively. A lack of cover/workload relief not only impacts upon union reps themselves - it also impacts, 'upon work teams and colleagues' [18] . The focus group report cites several participants raising this as a key problem.

5.6. Some employers do provide cover/workload relief arrangements for union reps. Nearly half (49%) of the union respondents to the TUC/Personnel Today survey cited above, reported that their employer provided at least partial cover/workload relief while they undertook trade union duties. This proves that employers can make suitable arrangements to help union representatives - to the benefit of the reps themselves, the people they represent and the employing organisation. However, these findings also suggest that one in two employers do not provide any cover/workload relief arrangements. An explicit reference to the need for cover/workload relief arrangements in the Code would hopefully spur more employers to provide these sorts of essential workload reduction arrangements arrangements.

5.7. Pressures of work: Linked to the lack of cover for union reps is the issue of increased work pressures, and the impact that these have upon the ability of union reps to carry out their role. As the consultation document notes, 'In a survey undertaken between 1988 and 200 involving three unions...80 per cent of representatives reported that their role as a union representative had become more difficult owing to increased work pressure.' New ways of working - including more stringent performance regimes in the public sector, team working and LEAN production - mean that many 'teams and individuals work within strict performance targets'. Again, the Code could be usefully revised to include the need for employers to consider the likely increased workload of union reps due to changes in work organisation when providing paid time off for union duties. Their work is not just increasing but becoming more complex, requiring more training and support - for example due to equal pay or other equalities legislation.

5.8. Attitudes of Managers: A recent TUC survey of over 1,000 union reps concluded that, ' while most employers respect the rights and responsibilities of their union reps and stewards, a significant minority of employers are less supportive .' [19] The report noted that, 'The results from the unionreps survey suggests that most employers have an either broadly supportive or 'neutral' attitude toward the work undertaken by union reps - indeed almost one in five reps describe their employers as 'very supportive'. Despite this overall positive picture it is equally clear that there is a 'hard-core' of employers who take a less supportive stance. The survey reveals that this problem is equally spread throughout both the public and private sectors.'

5.9. The 'Supporting union reps' survey found that 15% of employers have a 'very hostile' or 'quite hostile' attitude to the work of union reps. Respondents comments on this issue included:

' [I have a] very awkward manager, I have to constantly justify my duties and even have trouble from my store manager when going to company arranged regional and national meetings.'
USDAW rep

'Since I've actively taken up union duties in February this year I have been victimised constantly by my manager and even asked to move to another branch! The manager does not like the idea that staff are being told what their rights are.'
Accord rep

'Started bullying tactics on me since becoming a rep. Setting impossible deadlines, throwing all kinds of work at me, talking to me like dirt and even setting me up.'
UNISON rep

'Although I have regular meetings with HR and get paid leave for courses - only with a lot of notice, the undercurrent is very hostile...Some people have been told not to join and even threatened about this. I have received bad appraisals and pay rises for unexplained reasons, but after being called to my manager's office three times in that year and grilled over union activities and warned off rocking the boat....The role of union rep means victimisation and discrimination in my workplace, but proving this may be very difficult.'
GMB rep

'My line manager and those above her do not like having a union rep in the department. As I am a manager they tolerate me but try to make life difficult.'
GMB rep

'Constant snipes about [how the] "union" should employ people to do what you do..."is it fair on your work mates?" and similar.'
UNISON rep

'Constant obstruction, fellow reps forced into taking early retirement. I am now withdrawing from role due to employer attitude on my contract renewal.'
AUT (now UCU) rep

5.10. Even where employers are broadly supportive, many union reps clearly feel that being a workplace rep potentially damages their career prospects. Some 92 per cent of the union reps responding to the TUC/Personnel Today survey said they believed their career prospects were threatened because of the representative role. Perhaps even more worrying than this figure is the fact that more than a third (36%) of HR professionals agreed that the career prospects of union reps were possibly hampered by their involvement in the union. [20]

5.11. The WLRI focus group report suggests that there is often an attitudinal gap between specialist HR mangers and middle mangers, with the latter having 'little incentive [to] release a colleague for their representative duties because they experience no direct benefit as a result or because their team's objective are not adjusted to take account of commitments to those representatives.' This lack of consistency between different layers of management is reinforced by further findings from the 'Supporting union reps survey' which found that, ' One comment complaint raised by reps through the survey was the lack of 'consistency' in many companies and organisations. Reps reported cases of local managers who wanted to work positively with the union being over-ruled or forced to change tack by senior managers. Conversely, in many cases commitments made by senior managers to work positively with the union, were undermined at a local level by line-managers and supervisors.'

5.12. Other problems: As well as those detailed above, union reps often face a wider range of problems. One of these is the lack of consideration given to issues around performance or outcome-related pay in relation to paid time off for union duties. This issue has been raised with the TUC as a particular concern by unions representing professional and specialist workers whose salaries may be dependent on e.g. sales targets. The Code specifies that reference should be made to average hourly earnings when calculating the amount paid for time-off taken for undertaking trade union duties. However, this is clearly difficult to do when the union rep concerned is not paid on an hourly basis. Again, the Code could be revised to take into account the differing nature of pay and reward systems so as to ensure that reps do not suffer any detriment.

5.13. The other potential problems raised in the consultation document - increasing complexity of role, difficulty in maintaining work/life balance and a rise in off-site representation - are all significant problems faced by union reps and have been discussed above.

5.14. Response to question 3a: The TUC believes that there is need for an explicit reference to the need for cover/workload relief arrangements in the Code on Time off for trade union duties and activities. Such a reference would hopefully spur more employers to reduce the workload of union reps. If this approach is not successful consideration may need to be given to legislative changes requiring employers to make reasonable adjustments in workloads to help union reps taking paid time off to carry out their duties.

5.15. Further response to question 3a: The TUC believes that the Government should, with the support of TUC, unions and employers organisations, explore ways of promoting the role of the union rep. This should not extend to equal promotion of the role of non-union 'reps' who, as argued above, do not carry out a comparable job. Better management understanding of the role of the union rep would help mitigate some of the problems raised above. This point is picked up again in response to question 6c.

5.16. Further response to question 3a: The TUC welcomed the improvements made to protections for trade union reps and members from dismissal and detriment short of dismissal in the 2004 Employment Relations Act 2004. These changes were made pursuit to the decision of the European Court of Human Rights in the Wilson and Palmer cases. Currently, there is no statutory guidance on how these rights operate. The TUC believes that the Code of Practice should be extended to include guidance on section 146 and in particular the protections provided to union reps. This advice should make clear that it is unlawful for an employer to discriminate against trade union reps in terms of pay rates, access to bonuses or promotion opportunities on the grounds that they are performing trade union duties

6. Training and time-off for training

6.1. In 2005 the TUC trained 46,502 reps (this includes core shop steward and safety rep courses, short courses and other TUC-run training). Individual unions are likely to have trained a comparable number in this period, often with the support of the TUC. All TUC education courses for lay representatives are accredited and quality assured, and as the consultation document notes, the quality of trade union courses is high and 'Many centres have been awarded a 'Grade 1' score ('outstanding') for the quality of teaching, student, retention, and course pass rates'.

6.2. The TUC and its affiliated unions place a high premium on union rep training. Better-trained reps are likely to be more confident, capable and effective, delivering better representation for members and able to develop better relationships with employers. Non-union 'reps' simply do not and could not have access to the same kind of high quality independent training.

6.3. Just as many union reps face problems securing time-off to undertake their duties, so many reps also face problems securing paid-time off to undertake training. The consultation document reports findings from WERS which suggest that a significant minority of union reps received no paid time-off to attend training courses, a slight increase on the 1998 figure. TUC internal surveys have shown that half of all new reps receive no training in their first year, often due to problems securing paid time off. This problem is borne out by findings from the TUC/Personnel Today survey in which a quarter of union reps (25.5%) reported that their employer paid for less than 10 per cent of the time they spent on training related to their role as a union rep. Of course, one additional unknown quantity is how many union reps simply stop applying to undertake training because of their employer's previous refusal to grant paid time off. Management attitudes can be crucial in this regard. The 'Supporting union reps survey' found that ' 13 per cent of reps who had not undertaken training in the previous 12 months cited 'employer was obstructive' as the reason, with a further 18.7 per cent citing 'a lack of cover'' [21] . Comments from union reps on this issue included:

'When I or any of the reps try to take any time off the company stalls on returning the form to go and try to stop us going at all.'
TGWU rep

'The college gives cover for full-time lecturers but expect part-time staff to do [union rep] training in their free time. The fight to be paid for these hours is so difficult I have given up trying.'
NATFHE rep

'Employer is very obstructive and says that all education courses are unpaid unless it benefits the company.'
ASLEF rep

6.4. The consultation document notes that there are 'very few complaints to employment tribunals alleging breaches of the time off [for training] right'. This should not be surprising. At a recent seminar on the facilities review, hosted by the TUC, unions indicated that they would be reluctant to use employment tribunals to try and resolve these sorts of issues, as use of employment tribunal usually indicated a complete break-down in normal industrial relations. [22]

6.5. While reps generally often struggle to secure paid time off for training, it is clear, as the consultation document notes, that this is likely to be especially problematic for those reps not covered by statutory entitlements (such as equality reps, environmental reps and Information & Consultation reps).

6.6. Response to question 4a: The TUC believes that every union rep - including equality and environmental reps - should be entitled to paid time off to attend a minimum 10 days of accredited training in the 12 months immediately following their election/appointment. Ten days is the standard accepted norm for the length of initial training appropriate for new reps. This right should be in addition to any existing negotiated or other rights for union officials to paid time off to access ongoing training as and when required to perform their duties effectively. Further consideration could also be given to introducing a minimum entitlement to training in subsequent years.

6.7. Further response to question 4a: The TUC believes that the Code should be amended to reinforce the rights of union reps to undergo training relevant to their trade union duties.

6.8. Further response to question 4a: The TUC believes that the Code should be amended to make explicit reference to the need for cover/workload relief arrangements while union reps undertake training and other work relevant to their duties. Such a reference would hopefully spur more employers to provide help for union reps undertaking such training. If this approach is not successful consideration may need to be given to legislative changes requiring employers to make reasonable adjustments in workloads to provide cover for union reps taking paid time off to undertake training relevant to their duties.

6.9. The consultation document notes that an increasing number of TUC and union training courses are being delivered on-line. The TUC has played a key role in developing on-line provision, and supports the development of this work. However, the TUC wishes to reinforce the view expressed within the consultation document that, 'Online training should not be used as a means to press representatives to use their own time and their own computers to undergo essential training'. The TUC believes that overwhelmingly, union reps are undertaking online courses in their own time, and some employers view this as an attractive alternative to providing paid time for training. On-line learning should not be seen as a 'release-free' replacement or substitute for other more traditional forms of union rep training.

6.10. Response to question 4b: The TUC believes that the Code could be amended to strengthen rights to paid release for online learning, either at home or in learning centres and/or in the workplace.

6.11. The consultation document notes that the style and content of union reps training courses have changed greatly over time and that, 'The TUC is alive to the possibility of arranging new short courses which address emerging needs or issues'. While the consultation document seeks to open up a debate about the future content of trade union training courses, the TUC believes that the quality, reputation and value of trade union education training courses is grounded in the fact that they have been developed and shaped by the TUC and its affiliated unions. Any attempt to bring outside influence to bear on the nature, content or style of these training courses is likely to damage the quality, reputation and value of such training courses.

6.12. Response to question 4c: The TUC believes that the content of trade union training courses should continue to be shaped by the TUC and its affiliated trade unions.

6.13. The consultation document raises questions about the need for the impact of trade union training in the workplace to be more thoroughly assessed. In fact the TUC and its affiliated unions already have experience of developing such impact assessments. One example is the independent impact assessment of Health & Safety Training undertaken by South Bank University. [23] Another example is the comprehensive and ongoing evaluations of the work of ULRs, which have accompanied the development of the union learning agenda. [24] Evidence of the impact of trades unions more broadly can be seen in the benefits that union representatives bring to the workplaces in terms of reduced absenteeism, reduced labour turnover, reduced accident and injury rates and improved productivity - all of which have been independently assessed.

6.14. Response to question 4d: The TUC would welcome further discussions with Government about developing further impact assessments of trade union training courses. We are confident such assessments would demonstrate their value.

6.15. The TUC is primarily focussed on the provision of training and support for union reps. As noted above, the TUC believes that independent (actually often far from independent as management appointed) or non-union reps undertake qualitatively different work than their non-union counterparts and will never be able to access the same high quality training and support

6.16. Response to question 4e: The TUC believes that the principal cause of the absence of training for non-union workplace representatives is the fact that they do not enjoy the backing, credibility and wider support derived from independent union organisation and representation. In some limited circumstances the TUC, at the request of its affiliates, and individual TUC affiliated unions does provide training and support to non-union representatives. However, more broadly the TUC feels that non-union representatives cannot ever become equivalent to union reps and there is no alternative to proper independent union representation and organisation.

7. Facilities

7.1. While Safety reps and union reps involved in TUPE/collective redundancies do have the legal right to facilities, union reps more generally, including ULRS, do not. Since 1992, the Safety Representatives and Safety Committees Regulations have provided that employers are under a duty to provide safety reps with such facilities and assistance to carry out their functions. Since 1995, the TUPE Regulations 1981 (Regulation 10(6A)) and collective redundancy provision (s. 188(5A)) have required employers to provide representatives with access to affected employees and to provide them with such accommodation and facilities as may be appropriate.

7.2. While the ACAS Code recognises that it is best practice for employers to provide facilities to enable trade union officials in recognised workplaces to access and represent employers, there is no specific legal duty for employers to do so. Many union officials, when approaching their employer to provide facilities in workplaces rely on their entitlement under the SRSC Regulations. In practice, where a union rep also performs the role of Safety representative, these regulations entitle them to the provision of permanent facilities in recognised workplaces. However, the current legal framework can give rise to disputes and can result in union officials having to perform a number of different functions in the workplace, rather than sharing representative roles with a wider number of colleagues.

7.3. The consultation document notes that nearly one in ten senior union reps (9 per cent) have no access to any facilities. Analysis of WERS 2004 commissioned by the TUC suggests that union reps in the private service sector are 'noticeably less likely to enjoy these [clerical and administrative] facilities' [25] - see Table 1.

Table one - facilities provided to senior union representatives by management by sector and industry

	Phone	Office specif. for reps	Office available to reps but also other use	Meeting rooms	Photo-copier	Computer	Email	Co. intranet	Other	None
All	87.3	25.3	39.5	76.9	83.1	67	69.7	27.2	14.8	7
Private sector	87.5	20.8	48.5	68.2	85.6	62.9	65.6	18.3	18.9	4.3
Public sector	87.1	28.1	34	82.2	81	69.5	72.2	32.6	12.2	8.6
Manufacturing	99.1	25.4	69.3	85.4	91.9	77.8	68.5	12.3	5.1	0
Gas, Electricity and Water	88.8	22.2	60.2	98.1	100	100	100	37.3	9.7	0
Construction	98.2	5.2	46.2	96.3	100	92.7	92.7	29.7	5.6	0
Wholesale and retail	89.4	2.6	25	55.9	61.1	41	39.2	9.7	15.1	8.2
Hotels and restaurants	100	0	12.4	12.4	12.4	12.4	0	0	0	0
Transport and comms	93.7	34.6	26.8	77.9	84.8	61.5	58.7	3.5	31.1	8.6
Financial services	80.4	22.7	69	50.9	96.7	61.5	78.3	30.2	10.3	0
Other business services	61.3	0.9	28	61.2	54.6	52.8	60.1	12.2	1.1	38.7
Public administration	96.2	28	24.6	91.5	87.9	72.9	94.6	47.1	27.8	0.2
Education	72.8	4.6	32.4	76.9	81.8	67.4	61.3	8.7	2.5	12.4
Health	92	48.9	51.7	84.1	85	73.8	73.8	49.5	18.8	5.8
Other community services	92.8	34.8	28.3	84.5	78.6	72	65.4	46.3	7.4	3.8

Results rounded to one decimal place. Weighted base: 699 union representatives in workplaces with union recognition

7.4. The WLRI focus group report suggests that union reps often do not have access to suitable office accommodation - a particular problem when there is a need to conduct sensitive discussions with members and other union reps, or to file confidential material. The report further suggests that there are 'specific issues where workers were mobile. The fact that they [the union reps] had no fixed workplace - for example in the case of transport or other mobile workers - raises particular challenges in terms of provision of space to undertake union duties' . The increase in 'off-site' representation means that this problem is likely to become more important over time.

7.5. As Annex B of the consultation document suggests, 'The costs associated with the provision of facilities will be, in most cases, negligible in terms of their marginal cost.' The DTI's upper-end estimate is that facilities for workplace representatives result in an annual cost to employers of £24.7m - a tiny sum when compared to the suggested productivity and other benefits that union reps bring to workplaces. Extending proper access to all facilities, and in particular to the 9 per cent of union reps who report that they currently have access to no facilities at all, would represent a negligible cost to employers.

7.6. Recommendation: The consultation document does not ask what more can and should be done to ensure that union reps have access to the facilities they require to carry out their duties. The TUC believes there is scope to amend the Code to strengthen considerations relating to facilities for union reps. Currently the Code notes that employers should 'consider' making facilities available; the TUC believes that the Code of Practice must set out the 'requirement' or 'necessity' for employers to provide such facilities. The TUC further believes that there is scope to underpin the Code with legislation setting out the right for union reps to have access to such facilities as are necessary effectively to carry out their duties. For the purposes of consistency, clarity and in order to promote good employment relations, section 168 should state that employers should provide union officials with facilities, accommodation and access to members to enable them to perform their wider workplace functions.

7.7. As noted in the consultation document there has been a significant increase in the proportion of union reps having access to a computer (from 39 per cent in 1998 to 67 per cent in 2004). A report commissioned by the TUC in 2004 revealed that 45% of union reps use the internet daily - with significant numbers reporting that they often use the internet for rep duties (32%) and other union activity (24%). [26] 'Supporting Union Reps' found that, ' Nearly three-quarters of the reps surveyed used email at work to support their role as a union rep - though this figure dipped somewhat (to 66.5%), in the private sector.' (see table 2)

Table 2: Access to, and use of, email

	Do you have access to email at work?	Can you use work email in your role as union rep?
Yes	80.0%	73.4%
No	18.8%	7.8%
No reply	1.2%	17.8%

(Table taken from 'Supporting Union Reps')

7.8. 'Supporting Union Reps' also found that, ' significantly, and as expected, reps were more able to use email in their union role where the employer was supportive than where the employer was hostile' . Over 40 per cent of union reps who categorised their employer's attitude as negative or hostile reported they were not allowed to use IT/e-mail at work in their role as a union rep. Where the employer was more supportive barely 6 per cent of reps reported that they were unable to use these facilities.

7.9. 'Supporting Union Reps' also featured the concerns of a small but significant group of union reps who feared that their employer would monitor and/or interfere with their use of IT/e-mail at work. The consultation document notes that the Government is not persuaded that measures are required to address this issue, suggesting instead that employers and union reps would be better reaching agreement on these issues.

7.10. Response to question 5b: The TUC believes there is clear evidence that a small, but significant, minority of union reps have concerns about employer monitoring and /or interference with their use of IT/e-mail at work. The TUC agrees with the view expressed within the consultation document that unions and employers should endeavour to reach agreement on the use of IT/e-mail systems, which should include provisions on security and confidentiality. However, the TUC also believes that the Code should be amended expressly to note that use of electronic and other forms of communication with members in the workplace should be available to union reps and free from employer interference or surveillance. Such an amendment would act as a spur to both employers and unions to review existing agreements, and reinforce the need for employers to ensure that union reps are not subject to unreasonable monitoring and surveillance.

8. Guidance

8.1. Throughout this response the TUC has argued the need for the Code to be updated and amended to address key issues including cover for union reps undertaking training or carrying out their duties, and secure access to IT/e-mail. In addition thought also needs to be given as to how the Code of Practice could be amended to reflect the impact of the widening and shifting collective bargaining agenda (to include for example issues around skills, pensions and the environment), the rise of 'off-site' union representation and the emergence of new union representative roles. However, the TUC believes that the Code should not be amended to address the position of non-union representatives. As argued elsewhere in this response the TUC believes that union and non-union 'representatives' undertake qualitatively different roles. Any effort to combine advice for union and non-union reps is likely to be confusing and counter productive.

8.2. Response to question 6a: The TUC would welcome, and would wish to be closely involved in, an effort to revise the Code. However, the TUC believes there is no value in this revision including reference to the role of non-union 'representatives'.

8.3. The TUC agrees with the suggestions contained within the consultation document that guidance relating to union reps may be spread across too many separate publications, and may be difficult to locate. The TUC further agrees there is a need for the HSE to continue to provide the main guidance for Safety Representatives.

8.4. Response to question 6b: The TUC would welcome the development of new comprehensive publications containing guidance about union representatives. The TUC believes there may be value in the DTI and TUC working together to provide an on-line resource containing a set of links to guidance on union representatives.

8.5. According to the joint research undertaken by the TUC/Personnel Today cited above, union reps often feel that their managers are 'unprofessional in their approach' (34 percent), 'use unhelpful language' (48per cent), and 'do not value the role of the union rep' (33 per cent). It would be reasonable to assume that local line-managers are likely to be less well trained or used to dealing with union representative than HR professionals. It may be worth noting therefore, that in recognition of these issues, the TUC intends to publish a 'Guide to Unions' aimed at employers in summer 2007.

8.6. Response to question 6c: The TUC believes there would be value in exploring how line-managers could be better trained and advised about their relationship with union representatives. The TUC would welcome the chance to engage with DTI, ACAS and employers' organisations about how best this training and advice could be developed and delivered.

9. The regulatory framework

9.1. The TUC does not believe there is a case for consolidating the existing legislation on rights to time off and facilities for trade union reps. there would be a concern that such a consolidation would result in a diminution of existing protections. If the Government decided to consolidate the legislation, the TUC believes that it would be essential to treat rights for trade union reps distinctively from those for workplace representatives. This response has set out areas where the TUC believes that the law on workplace representatives could potentially be changed, in summary:

o In providing a statutory basis for union environmental and equality representatives

o Either through the Code, or if that is not possible through statute, employers to be obliged to provide 'cover/workload relief for union reps taking paid time off to undertake training or carry out their duties

o By revising the Code, and if necessary through further legislation, to clarify the right for union reps to have access to such facilities as are necessary to effectively carry out their duties and strengthen a number of provisions on training, time off and other issues.

9.2. The TUC further believes that there would be value in amending the TULR(C)A 1992 to broaden the range of 'duties' undertaken by union representatives. The range of issues covered by union negotiations has widened in recent years and the distinction between 'duties' and 'activities' was originally conceived at a time when the pattern of union work was very different. Many reps commented that their employers were inconsistent in applying the distinction. Some managers, for example, assumed that any work that was not immediately related to their immediate concerns could not count as 'duties'. The TUC would be firmly opposed to any narrowing of or deletions from the existing definition of trade union 'duties' under TULR(C)A 1992. However, we believe there may be a case for extending the existing list.

9.3. Response to question 7a: The TUC believes there is scope to amend the law on workplace representatives as outlined above, but is concerned to ensure that such potential changes do not delay other potential action arising out of the current review.

10. Conclusion

10.1. The consultation document sets out clearly the massive contribution that union representatives make: bringing direct benefits and representation to union members, to their employing organisations, and to the economy more broadly.

10.2. The current review of facilities and facility time for workplace representatives presents an opportunity for Government to encourage employers to provide better support for union representatives and to encourage more workers to take on these roles. This support would provide a welcome boost to union representatives. A recent TUC/Personnel Today Survey found that while nearly half of union representatives believed that their employer positively valued their role, only 16 per cent believed that the Government 'values the role of union representatives'. [27]

10.3. But Government must value this role. Union representatives help represent individual workers, bring equality and fairness to workplaces, help reduce absenteeism, cut staff turnover, help workers access new skills, prevent accident and illness at work, and help boost productivity. More than 200,000 people undertake union representative roles in the UK, often working in their own time and often without recognition. The current review should ensure that their contribution to helping create better workplaces receives the recognition it deserves, and results in union representatives getting the support, facilities and paid time-off, which they need.

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[1] A variety of terms are generally used for 'cover', including 'remission' or reduced workload. 'Cover' can however imply that colleagues of the rep need to pick up the reps' work (i.e. cover for them), which can cause problems and does not tackle the root problem that their employer has not reduced the reps workload. Hence the formulation used throughout this submission of cover/workload relief.

[2] 2004 Workplace Employment Relations Survey, 2004

[3] 'Accounting for Collective Action: resource Acquisition and Mobilization in British Unions', CEP Discussion Paper, Paul Willman & Alex Bryson, December 2006

[4] WERS 2004

[5] The full scope of this work is outlined in the TUC's biennial 'Equality Audit' - see TUC Equality Audit, 2005, available at http://www.tuc.org.uk/extras/auditfinal.pdf

[6] Making a real difference. Union Learning Reps: a survey, unionlearn, October 2006

[7] The DTI Sustainable Development Action Plan 2005/06, DTI.

[8] GreenWorkplaces demonstration projects are based at Corus (steel works) steel park, Birmingham, four major offices of Friends' Provident (a large financial services organisation), at Scottish Power HQ, the British Museum in London, the DEFRA Government office in York, and at the TUC's HQ and regional offices, and have beenjointly funded by a Carbon Trust grant and match funding contributions from trade union affiliates and the TUC's UnionLearn environmental education programme

[9] This union representation effect is over and above the effect of having dedicated union health and safety representatives.

[10] ' The impact of trade union representatives on industrial relations outcomes: an analysis based on the 2004 Workplace Employment Relations Survey'. Work undertaken on behalf of the TUC by Dr Andy Charlwood at Warwick Business School.

[11] 'Making the Difference': Union representatives and company performance, TUC, January 2007

[12] The TUC and Personnel surveyed 583 HR professionals and 524 union reps in January 2004, in order to, 'discover their views on the working relationships between employers and unions'.

[13] 'Union reps - winning respect at work', TUC, 2002.

[14] 'Supporting Union Reps', TUC, 2005

[15] 'Cordial Relations', Personnel Today, 30 January 2007

[16] York Consulting, Union Learning Fund Evaluation

[17] Hazards Survey, February 2007

[18] 'Review of Workplace Representatives' Facilities and Facility Time - Focus Groups on the experience of trade union representatives', WLRI, 2006

[19] 'Supporting Union Reps', TUC, 2005

[20] 'Cordial Relations', Personnel Today, 30 January 2007

[21] 'Supporting union reps', TUC, 2006

[22] TUC seminar, held on 21 February 2007, and attended by more than 10 TUC unions across a range of sectors.

[23] 'The impact of trade union education and training in health and safety on the workplace activity of health and safety representatives'. Walters, D; Kirby, P; and Daly, F. HSE Contract Research Report 321/2001

[24] See for example, 'Making a real difference', TUC, TUC, 2006

[25] ' The impact of trade union representatives on industrial relations outcomes: an analysis based on the 2004 Workplace Employment Relations Survey'. Work undertaken on behalf of the TUC by Dr Andy Charlwood at Warwick Business School.

[26] Survey work and analysis carried out by Professor Richard Freeman and Marit Rehavi of the London School of Economics in 2004. This survey work included a survey of 1200 union reps undertaking training at TUC Education centres, and 400 www.unionrep.org.uk subscribers.

[27] TUC/Personnel Today Research, December 2006

Briefing document (10,500 words) issued 3 Apr 2007