General Council Report - Chapter 1

chapter 1 rights at work

• 1.1 Introduction
• 1.2 Employment Relations Act 1999: implementation
• 1.3 Information and Consultation Directive
• 1.4 Proposed Employment Bill
• 1.5 Industrial disputes
• 1.6 Employment Tribunals
• 1.7 Collective Redundancy Regulations: government consultation
• 1.8 EU initiatives on atypical work
• 1.9 Certification Officer decisions
• 1.10 Better Regulation Task Force
• 1.11 Civil liberties issues

1.1 Introduction

During this Congress year, there have been a number of important developments in this area of work. The statutory trade union recognition scheme, which came into effect on 6 June 2000, has generally operated smoothly, with several unions gaining recognition awards. Some difficulties have emerged which will need to be addressed when the Government reviews the legislation, which they have promised to do. The most significant impact of the legislation has been the conclusion of many voluntary agreements which are unlikely to have been achieved without the legislation being in place. There has been approximately a 300 per cent increase in the number of voluntary agreements signed in the past year.

In June, the Government gave up its opposition to the proposed EU Directive on Information and Consultation in return for concessions on the scope of the Directive. The implications for industrial relations in the UK are potentially enormous and will be the subject of detailed discussion with affiliated unions as the Government prepares for transposition of the Directive into UK law.

There have been problems in the courts with aspects of the law on industrial action, including elements of the new legislation and the TUC has also assisted a number of unions involved in disputes with employers.

The new right for workers to be ‘accompanied’ by trade union officials at grievance and disciplinary hearings has allowed unions access to workplaces where they do not have recognition. There has been an increase in the number of applications to the Employment Tribunals, which has caused considerable concern to employers and to the Government, though the TUC has pointed out that out of a workforce of some 23 million, 130,000 claims is not excessive. Nonetheless, the General Council have taken the view that litigation should be avoided as far as possible and has urged the Government to look to workplace and collective solutions to individual disputes. The Government made a number of changes to pre-hearing procedures in the Employment Tribunals, including raising the upper limit on costs orders to £10,000. In July, the Government announced a further series of proposals to improve workplace dispute resolution procedures and deter 'weak' applications to tribunals. A consultation document has been issued, to be followed by an Employment Bill to be introduced into Parliament in November. This Bill will also include proposed changes to maternity leave and the right to time off for union learning representatives.

The Government has also consulted on the implementation of the EU Directive on Fixed Term Contracts and on further changes to the proposed new regulations affecting agency workers. Talks between the social partners in the EU on a new framework Directive on agency workers broke down when the employers refused to accept the principle of equality between agency workers and their permanent counterparts. There will now be a Commission Directive on agency workers; this is reported in Chapter 3. The EU social partners have agreed non-binding guidance on teleworking, following the successful conclusion of EU sectoral level agreements; this is also reported in Chapter 3. In the UK, discussions are also taking place between the social partners on guidance on teleworking.

In furtherance of the composite resolutions on employment rights carried at the 2000 Congress, the General Council have worked throughout the year to influence the Government on a number of issues and to assist unions in getting the best out of the new legislation, particularly in relation to statutory recognition. This work is described in more detail in succeeding paragraphs.

In addition to working on the new legislation, the General Council have continued to brief union officers on the operation of the Employment Tribunals and employment law in general. The Representation at Work Task Group has continued to advise the General Council.

The TUC has continued to maintain close
contact with the Advisory Conciliation and Arbitration Service, whose membership currently includes General Council members Jimmy Knapp and Sir Ken Jackson, Deputy General Secretary Brendan Barber and STUC Deputy General Secretary Ronnie McDonald. During the course of the year Bill Morris and John Edmonds retired from the Council on completion of their period of office.

This chapter also reports on the General Council’s work on the Human Rights Act 1998, the implementation of the Data Protection Act 1998 and other civil liberties issues, as well as criminal justice.

Representation at Work Task Group

General Council: Bill Morris (Chair), George Brumwell, Bill Connor, Nigel De Gruchy, Tony Dubbins, John Edmonds, Sir Ken Jackson, Roger Lyons and Dave Prentis.

TUC Staff: John Monks, Brendan Barber and Sarah Veale

1.2 Employment Relations Act 1999: implementation

Most of the Employment Relations Act 1999 has been implemented, as reported to the 2000 Congress. Three parts remain to be commenced. Section 23 of the Act allows the Government to confer employment status on groups of workers, for example, agency workers, who are not legally defined as employees and are therefore excluded from some statutory protection, for example, against unfair dismissal. The Government has said that they intend to consult on this in the autumn. Section 17 of the Act, which was amended by the Opposition, provides limited protection for trade union members whose employers attempt to persuade them to sign personal contracts; the limitations are in part a result of the Conservative amendment which provides for employers to offer incentives to employees to sign personal contacts. While the legislation remains muddled and unhelpful the General Council have taken the view that it would not be helpful to press the Government to implement this part of the legislation. Discrimination against trade union members by ‘omission’ is now against the law under Schedule 4 of the Act. Section 3 of the Act allows the Government to introduce regulations to make it illegal for employers to make use of ‘blacklists’ of trade union members and activists when recruiting staff and while they are employed. The Government has told the TUC that it is to consult on draft regulations.

Statutory recognition

The statutory recognition legislation came into force on 6 June 2000. Since then the General Council have monitored applications closely. The revised TUC Disputes Principles and Procedures require unions to notify the TUC of applications to the CAC for recognition. On occasions where unions have not done this, the General Secretary has written to them reminding them of the importance of keeping the TUC informed. This new procedure has generally worked well and the TUC has been able to monitor applications and provide assistance to unions applying for recognition. It has also helped in some cases to resolve potential inter-union difficulties. The CAC secretariat have been complimentary about the way in which unions have approached and pursued applications.

The most outstanding feature of the new legislation has been its impact on voluntary recognition, where there has been a 300 per cent increase on the number of agreements signed in the previous year. The TUC has urged unions to make maximum efforts to secure voluntary agreements before pursuing the legislative route. The TUC has also discouraged unions from applying to the CAC until they are sure that they have a strong application, which amply fulfils the admissibility criteria in terms of evidence of membership and which is clear on the bargaining unit. On the whole, unions have followed this advice; most withdrawals from the CAC
process are a result of the union reaching a voluntary agreement with the employer and relatively few unions have failed the initial admissibility tests.

Since the launch of the scheme on 6 June 2000, up to the beginning of July 2001, there have been 85 applications for statutory recognition and two applications for de-recognition of a non-independent union. The majority of applications to date have been from the manufacturing, transport/distribution and printing sectors, with the majority of these coming from organisations with a workforce of fewer than 200. The two applications for de-recognition were withdrawn by the union concerned for technical reasons. Of the 85 applications for recognition, six were not accepted by the CAC. In one case this was because a non-affiliated independent union was already recognised; in one case it was because a TUC affiliated union was already recognised; in another case it was because a non-independent union was recognised; in another two there were technical errors and in the remaining case the CAC confirmed that the union itself was already recognised by the employer.

Eight recognition agreements have been awarded by the CAC. Five achieved recognition without a ballot. Only one union, a non-affiliate, has lost a ballot. Two unions failed the admissibility tests when they were re-applied following a substantial change made to the bargaining unit by the CAC. A number of applications were withdrawn following the conclusion of voluntary agreements. A number of cases are currently progressing through the CAC procedures.

Some procedural problems have arisen, though unions have reported that the CAC staff have been very helpful at all times. A particular problem is the scope for employer prevarication. This is partly because the legislation allows for periods of negotiation and discussion between the parties and gives the CAC discretion to allow further periods for discussion at some stages. Employers appear to have obtained further periods for discussion without having to do much to prove that they really do want to have meaningful discussions. In a number of cases it is clear that employers are prevaricating in order to allow themselves longer to campaign against the union. As they have unfettered access to the workforce at all times, unlike the union which only has access during a statutory ballot, they have far more scope for influencing workers.

Some employers have been using intimidatory tactics and producing mendacious literature. Others have attempted to bribe workers with offers of better pay or conditions if the union is kept out. In some cases, employers have told workers that the company will collapse, or they will close it, if a union gets recognition. A
number of employers have established staff associations and other bodies as an attempt to persuade workers that a non-union voice could serve their interests and in order to keep unions out.

The TUC has set up an extranet page on union recognition on its website; this is password protected so that only named individuals from affiliated unions have access to it. It includes regular reports of CAC decisions, advice on how and why unions have succeeded or failed in particular cases and other relevant information. The General Council receive regular reports on cases in the CAC and issues arising from those cases.

Network of Union Officers

It was reported to the 2000 Congress that the General Council had set up a Network of Union Officers in order to encourage better relations between unions and to avoid damaging inter-union disputes over the statutory recognition scheme. The revised TUC Disputes Principles and Procedures require affiliated unions to appoint a senior officer to act as a contact point on relations with other unions and issues relating to recognition and representation. The TUC set up a database to which each union nominee has access. There have been two meetings of the Network during this Congress year. In addition, the Network organised a one day seminar in
February on statutory recognition, which discussed issues arising from the cases going through the CAC. The seminar was addressed by Sir Michael Burton QC, the Chairman of the CAC, Derek Evans, ACAS Chief Conciliator, and John Monks.

Meetings with the CAC

The TUC office has maintained regular contact with the Chief Executive of the CAC. In June, a TUC delegation met the Chief Executive to discuss issues of concern to those unions which had applied for statutory recognition. The CAC had acknowledged that the ‘likely to win a majority’ limb of the initial admissibility tests was a difficult and judgemental one. Another issue of concern was confidentiality: the CAC understood the fears of unions that if employers were to see the names of workers who favoured recognition they could put pressure on them in various ways. Employers were sometimes reluctant to let unions see the names of all those employed. The CAC encouraged parties to agree that such lists would be given to the CAC to judge but not passed over to the other party. However, this issue had been raised in judicial review proceedings against the CAC (see below). Unions were encouraged to provide evidence to the CAC of any intimidation by employers and draw any access difficulties to the attention of the CAC in relation to producing hard evidence.

Government review:
TUC concerns

The Government is committed to reviewing the Employment Relations Act. The General Council have identified a number of issues where amendment to the legislation is necessary. The first issue is the exclusion from the statutory recognition legislation of employers who employ fewer than 20 workers. This has the effect of arbitrarily excluding around six million workers from the benefits of union recognition and gives employers an incentive to disaggregate their businesses in order to avoid recognition. The second issue is the 40 per cent ‘yes’ vote requirement for statutory recognition ballots, which imposes a high hurdle for unions to clear and may, in some cases, mean that a high turn out in a ballot disadvantages the union. This requirement has had a knock on effect in a number of voluntary ballots, where employers have decided to apply the legislative requirements.

The third issue is the de-recognition provisions for non-independent unions. Part 6 of the recognition schedule provides for ‘workers’ to apply to the CAC for de-recognition of non-independent unions. The problem is that the bargaining unit in such applications, according to the CAC guidance, is that defined by the agreement in question. In practice, this allows employers to recognise non-independent unions for whatever bargaining unit they choose, often the entire company, which means that a union may have high levels of membership in one part of the company, or for one section of the workforce but not be able to trigger the de-recognition provisions for that part alone. This could be problematic when the new laws on information and consultation come into effect, depending on how they are drafted (see below). The fourth issue is the lack of clarity in relation to associated businesses. The fifth issue is the number of prescribed and discretionary ‘negotiation’ breaks provided in the schedule to encourage voluntary settlement; these are unrealistically lengthy and have allowed employers to prevaricate when they have no intention of reaching an agreement.

The sixth issue is the second limb of the admissibility test, which requires a union to demonstrate that it would be ‘likely to win a majority’ in a recognition ballot. In practice and evidentially, this is proving to be a difficult test to apply and therefore a difficult one to satisfy. The seventh issue is the qualifying conditions under which a ballot can be ordered even though the union has 50 per cent membership, where the drafting means that the balance of doubt lies with the employer. The criteria for judging a union’s proposed bargaining unit have not caused as many problems in practice as had originally been feared, mainly because to date unions have proved themselves adept at meeting employer’s arguments, although in three cases employers have succeeded in substantially extending the union’s proposed bargaining units. Before the TUC makes a submission to the Government, affiliated unions will be invited to suggest any other issues of concern.

One further issue of concern was whether or not ‘pay’ in a recognition award included pensions. In a case where recognition was awarded and where this was an issue, the CAC decided that negotiations on pay should include negotiations on pensions. Whereas this decision only applies to that employer and does not set a legal precedent, it will be useful in future cases and indicates that the CAC is willing to take a view where there is an element of uncertainty.

Judicial review

The CAC was threatened with judicial review proceedings in two cases, on the issue of confidentiality of union evidence. In the first case the employer failed to get an injunction and dropped the proceedings. In the second case a company did take proceedings against the CAC. Again, a central point in the case was confidentiality, on which the employer argued that he had a right to see all the relevant evidence, citing the Human Rights Act as well as common law in his defence. The judge ruled against the employer on this point, in particular because both parties had agreed that such evidence would be confidential to the CAC before the hearing started. The other point argued by the employer was that the decision on when to hold a membership check, for the purposes of ascertaining whether or not the union had the necessary 50 per cent membership to be awarded recognition without a ballot, had been made by a case manager rather than the panel. On this issue, the judge held that the case manager had consulted the panel and that it would be 'inconceivable' for a case manager not to consult the panel on such an important issue. He also added that the panel constituted a 'highly experienced industrial jury entitled to reach its own decisions'. Clearly the judge was reluctant to disturb the decisions of a CAC panel without very good reason, which may act to discourage future applications for judicial review.

The Right to be accompanied

The ERA created a new right for workers to be ‘accompanied’ by a union at a grievance or disciplinary hearing. On 4 September 2000 the new ACAS Code on on Grievance and Disciplinary Procedures, including the right to be accompanied, came into effect, following consultation with interested parties including the TUC. Arrangements were made with ACAS for affiliated unions to purchase discounted bulk orders of the new Code. The General Council produced a new leaflet as part of the Know Your Rights series called You’re not Alone, which explained how the new right can be used and also included a short session on the new union recognition rights. The General Council also arranged for a special course on the new right to be made available through the TUC Regional Education Service. Briefing sessions were also organised for a number of affiliated unions on request. The General Council will monitor the use unions make of this new right, which presents great organising opportunities as it allows union representatives access to companies of any size whether or not the union is recognised.

Industrial action: court decisions and the new legislation

The General Council considered a number of Court cases some of which involved aspects of the new provisions on industrial action ballots in the ERA. The main issues were the requirement to provide, in notices to employers, detailed information about those being called out on strike; the application of the definition of a trade dispute; and a drafting error in the new legislation relating to the disregard of minor accidental errors.

The problems with the new requirements to provide the employer with sufficient information to allow him or her to ‘make plans’ to offset the effects of proposed industrial action were highlighted in the case of RMT v London Underground Ltd. (see below), where the employer obtained an injunction against the union forcing it to call off the action despite the fact that a large majority of members had voted in favour of it. The TUC had objected to the inclusion of this new requirement when the Employment Relations Bill was going through Parliament. For unions whose members are dispersed in various locations doing different jobs, particularly if the employer does not operate a check-off system, it can be practically impossible to provide such detailed information without providing names. In this case, the Court of Appeal ruled that the union had failed to provide sufficient information.

When the Government reviews the ERA, the General Council will be urging them to make changes to the legislation so that unions are not put into a position whereby they either have to have readily available detailed information which they would then have to disclose to the employer, thus undermining the industrial action, or not have the information available and risk failing to comply with the new legislative requirements. At the time when the legislation was going through Parliament, the Government had said that their intention was not to 'frustrate the organisation of industrial action'.

The other problem is the definition of a trade dispute, where the restrictive nature of the legislation has resulted in a number of injunctions. Although in two recent cases unions were successful in persuading the Court that they were involved in a trade dispute in the older case of UNISON v University College Hospital, which has now been referred to the European Court of Human Rights (ECHR), the court held that a dispute with a third party (a prospective future employer, at this stage unidentified) was not a trade dispute. A further problem arises where a dispute arises with an associated employer.

The General Council will also raise this matter with the Government and other matters concerning industrial action identified in the Congress resolution carried last year.

The other major concern in relation to industrial action is the eight week limit on unfair dismissal protection for workers taking part in lawful industrial action. The TUC lobbied the Government before the legislation was in place to extend this protection indefinitely. In a recent dispute, striking TGWU members were all dismissed when the eight week period expired. The General Council will ensure that this matter is pursued vigorously with the Government when they review the legislation. Other concerns include some weaknesses in the provisions on the ‘right to be accompanied’, in particular, with the restrictive definition of what ‘accompaniment’ means and the failure to address properly the problems of protection for union members who want to make use of their union membership by being covered by collective bargaining arrangements. It was reported to the 2000 Congress that the General Council had submitted supporting observations, jointly with Liberty, to the ECHR in the Wilson/Palmer case. This case has not yet been heard.

1.3 Information and Consultation Directive

As is reported in Chapter 3, the proposed EU Directive on Information and Consultation is now being considered by the European Parliament, following the decision of the UK and Irish Governments to withdraw their objections to it. The transposition of the Directive will be of great potential significance to the TUC. Much will depend on the eventual wording of the Directive and the General Council, through the ETUC, are making efforts to ensure that it provides as much scope as possible for unions and does not allow employer evasion.

The Representation at Work Task Group has started to look at the implications of the Directive for industrial relations in the UK, based on their earlier conclusions in Your Voice at Work on the need for a properly developed ‘Rung 2’ for union representation. The main issues which the Task Group will be considering are: how to ensure that there is a single channel provision for information and consultation where independent unions are recognised, with provision where this is not the case for an elected, permanent staff representative body; that information and consultation are mandatory on specified issues, for example, changes to working conditions, and training; that remedies and sanctions for non-compliance provide an effective deterrent; how to provide for flexibility by agreement but with prescription, or a default scheme as a fallback; and how to ensure that new procedures do not prevent unions from making use of the new statutory recognition procedures, for example, by establishing negotiating arrangements with bodies which would legally be defined as ‘unions’.

The Task Group also agreed that the TUC should attempt to make the link between effective consultation procedures and the development of proper workplace dispute resolution procedures, particularly in light of the Government’s recent concerns about avoiding litigation on individual workplace disputes. The Task Group will continue to develop a strategy on transposition, in consultation with affiliated unions. It will then be necessary to make all efforts to convince the Government of the case for effective transposition.

1.4 Proposed Employment Bill

In July, the Government issued a consultation document which made a number of proposals aimed to 'encourage dispute resolution and stem the rising number of employment disputes'. The Government intends to introduce an Employment Bill in Parliament in November based on these proposals. The document was circulated to affiliated unions for comment, with guidance on how the proposals related to existing Congress policy. The General Council will submit comments to the Government and will also urge the Government to use the opportunity afforded to amend some aspects of the Employment Relations Act as suggested above and to ask for changes on other issues in line with Congress policy, for example, to improve the law on unfair dismissal.

The main proposals in the consultation document are:

l To impose a greater obligation on employers to have in place and to use grievance and disciplinary procedures; this would be done by use of additional compensation for applicants in tribunal cases where it became clear that employers did not have procedures or had not made use of them;

l To introduce a ‘no difference’ approach to minor procedural slips in otherwise fair dismissals;

l To introduce a charge to applicants for using Employment Tribunals;

l To introduce a fast track compulsory conciliation procedure provided by ACAS to be exhausted before the tribunal proceedings begin;

l To allow tribunals to award costs against ‘for profit’ representatives if their conduct in a hearing merits it.

1.5 Industrial disputes

During the course of the year the TUC has provided assistance to a number of unions involved in industrial disputes. In December, at the request of UNISON, the TUC notified affiliates of the official dispute involving the union’s members at the Dudley Group of Hospitals. The dispute had begun in August 2000 and had involved several periods of industrial action and regionally organised events. The workers involved were seeking to prevent the transfer of their jobs to a private contractor as part of an NHS PFI scheme. Unions were given details of how to provide financial assistance and where to send messages of support for the workers involved in the dispute.

In May, the General Secretary reported to the General Council that, in view of the increasing political and industrial significance of a dispute between the rail unions and London Underground, the TUC had sought to assist in bringing the parties together before a planned one day strike on May 3. Talks had been held at ACAS over an 18 hour period involving the RMT and London Underground. ASLEF had also been present and so had the TUC General Secretary and Deputy General Secretary. Although the RMT Executive were initially unable to accept the terms for the settlement reached at ACAS, following the General Secretary’s intervention they agreed to suspend the strike until May 15. Subsequently, a mass meeting of RMT shop stewards rejected the officers’ recommendation for acceptance of the agreement, however, following a further strike on May 15, but in advance of further action planned for early June, the RMT submitted further proposals to London Underground and, following further negotiations, a settlement was reached.

The TUC also sought to assist the RMT in the resolution of disputes with train operating companies and with companies over passenger and staff safety. Former General Council member Ken Cameron, assisted by Frances O’Grady, head of the Organisation and Services Department, chaired a number of meetings involving the RMT, ASLEF and operating companies representatives. Agreements were successfully reached with the overwhelming majority of employers. ASLEF and RMT also secured employer backing for rail union representation on Rail Safety, the Railtrack owned body responsible for drawing up the safety rule book.

The TUC also maintained contact with the CWU concerning a number of local disputes in the Post Office, which arose during the course of May.

At the May meeting of the Executive, the General Secretary drew attention to the fact that all these disputes had centred round the issues of privatisation of public services and service delivery. Subsequent further consideration of public service issues is reported in Chapter 6.

1.6 Employment Tribunals

The General Council have continued to produce the Employment Tribunals Newsletter three times a year. It is available on a subscription basis and remains popular with unions. It provides information on new employment legislation and on case law developments of particular relevance to unions.

It was reported to the 2000 Congress that under the new ‘open’ recruitment system for appointing lay members of the Employment Tribunals only 22 of the 156 new ‘employee’ lay members had been union supported. The selection is now done by a recruitment agency. The General Council have continued in their efforts to persuade the Government that the new system is effectively discriminating against those with proven industrial relations experience rather than those with theoretical knowledge. The General Council were particularly concerned that candidates were allowed to decide for themselves which ‘side’ of the panel they wanted to be on. This has led to a number of people with management backgrounds being selected as ‘employee’ side members. In November, the Government produced a review of the new appointments system, which acknowledged some of the problems indicated by the General Council but said that the new system was generally working well. The Government has assured the TUC that the next round will be properly organised, with interested organisations being given a year to assist potential candidates before the selection process begins. The Government has also said that more weighting will be given to workplace experience in the next round of appointments. The General Council will raise the matter again with the Government as part of the consultation exercise on dispute resolution (see above). The General Council will also give consideration to providing assistance to unions in ‘coaching’ suitable candidates to cope with the complex application and interview process.

In November, the Government announced that it would be making a number of changes to the pre-hearing procedures in the Employment Tribunals in order to assist the tribunals in identifying ‘weak’ cases. Most of the changes were minor, but two were significant. The upper limit on costs orders would be raised from £500 to £10,000. The deposit used in pre-hearing reviews would be raised from £150 to £500. The General Council wrote to the Secretary of State, expressing concern about the increases, which would be likely to deter unrepresented applicants in particular whose cases may not be ‘weak’ at all. The General Council urged the Government instead to take steps to ensure that all employers had proper grievance and disciplinary procedures. The General Council also urged the Government to relax the three month time limit for making claims so that applicants could exhaust internal procedures before proceeding with litigation.

In September 2000 the TUC submitted a response to the Leggatt Review of Tribunals. The TUC response concentrated on the Employment Tribunals and made a number of comments in line with Congress policy on how the Employment Tribunals could be improved. In March, it emerged that consideration was being given in government circles to moving the administrative responsibility for the Employment Tribunals from the DTI to the Lord Chancellor’s Department (LCD). The General Secretary and the Director-General of the CBI wrote a letter to the Prime Minister urging him not to move the responsibility from the DTI. They argued that it was important to retain the current link between the Employment Tribunals, ACAS and industry, rather than moving them into the mainstream court system, where they were likely to turn into labour courts, with a full costs regime, legal aid, court etiquette, lawyer representation and less effective pre-hearing procedures.

1.7 Collective Redundancy Regulations: government consultation

Following the failure of several employers, including Vauxhall and Corus, to consult the workforce, as required, before announcing redundancies, the Government announced in February that they intended to consult the TUC and the CBI on a proposed review of the Collective Redundancy Regulations. The General Council urged the Government to stop resisting the proposed EU Directive on Information Consultation, which would oblige employers to establish permanent representative bodies where they did not recognise unions. The TUC told the DTI that the problem with the existing Collective Redundancy Regulations was that they only required representative bodies to be established on an ad hoc basis when redundancies or transfers were being considered. Other problems included the weakness of the sanctions for non-compliance, which did not require the employer to suspend their plans until they had complied; uncertainty as to when the employer had to consult the workforce; the exclusion of small scale redundancies; the employer’s defence of ‘not reasonably practicable’ and the meaning of the term ‘establishment’ in the Regulations.

Following consultations with the TUC and the CBI, both together and separately, the DTI set up a series of meetings with unions and with employers to learn more about how the current regulations were working in practice. In June, when the Government withdrew its opposition to the Information and Consultation Directive, the Government said that the review of the Redundancy Regulations would be incorporated into discussions on transposition of the Directive.

1.8 EU initiatives on atypical work

The Government is currently consulting on the EU Fixed Term Contract Directive. The Government was required to give effect to the Directive by July 2001, but has notified the EU Commission that implementation is to be delayed by up to one year. In May, the General Council made a full response to the Government’s consultation. In the submission the General Council expressed their concern over the proposed exclusion of pay and pensions issues in the equal treatment protection of the Regulations and argued that failure to include pay and pensions may constitute defective implementation of the Directive. The submission also made the case for extending the scope of the Regulations to cover all workers, including agency workers, and not only employees. The TUC was invited and has participated in a DTI social partner group, set up to discuss the implementation of the Fixed Term Contract Directive.

The General Council are preparing over the summer to launch a new high profile campaign on temporary workers’ rights, aimed at supporting the case for the full and effective implementation of the EU Directive. As part of this campaign, a survey has been undertaken of temporary workers’ terms and conditions and of agreements negotiated by unions covering temporary workers. The results of the survey are to be released in August in a joint publication with the National Association of Citizens Advice Bureaux (NACAB). A new TUC website is being created to host the campaign. Part of the website includes a web-based questionnaire for students, set up in partnership with the National Union of Students.

It was reported to the General Council in June that the ETUC and UNICE had agreed to open negotiations on a voluntary agreement on telework. The ETUC Executive had agreed a draft mandate, which was approved by the General Council. Sectoral agreements on teleworking had been reached at EU level in both the telecoms and the retail sectors. The ETUC mandate covered a number of issues including health and safety, organisation of work and the right to be represented by and to have access to trade union representation.

At UK level, the Minister responsible for employment relations invited the TUC and the CBI to a meeting at which he said that he wanted to explore the possibilities of developing a voluntary Code of Practice on teleworking in the UK. Further talks were held involving the TUC, CBI, ACAS and other interested parties. A code is now being drafted; it will cover all the main points in the ETUC mandate. The social partners and other organisations will endorse the final Code and recommend that their members use it as the basis for agreements on telework. Affiliated unions will be consulted on the draft code in due course.

1.9 Certification Officer decisions

The General Council have included reports of significant decisions by the Certification Officer (CO) in the TUC MAIL. One decision of considerable significance related to the election of union presidents. The CO decided that a union had not properly elected their president as their Rule Book allowed the union’s Executive to elect him or her rather than balloting their membership as specified in the legislation. The union contended that the Executive was elected and that as the President must be a member of the Executive, he had been elected by the membership. The union appealed to the Employment Appeal Tribunal, which upheld the CO’s decision. A briefing was sent out in the July TUC MAIL, urging unions to review their own Rule Books to ensure that they were compliant with the EAT ruling.

In March, the Deputy General Secretary wrote to the Certification Officer expressing concerns about the effects of some of the new legislation in the ERA relating to proceedings. In particular, the General Council were concerned about the new requirement on the CO to organise a hearing if he believes that a complaint falls within his jurisdiction unless both parties agreed not to have one.

In August, Ted Whybrew, the long serving Certification Officer retired and was replaced by David Cockburn. The General Secretary wrote to Mr Whybrew thanking him for his helpful and constructive approach during his period of office. The General Secretary also wrote to Mr Cockburn congratulating him on his appointment.

1.10 Better Regulation Task Force

In November the Representation at Work Task Group met Graham Stringer, Parliamentary Under-Secretary in the Cabinet Office responsible for the Better Regulation Task Force. Mr Stringer was invited to explain the Government’s Regulatory Reform Bill which was going through Parliament. The General Council were concerned that the Bill would allow employment regulations to be weakened or even abolished without the need for proper Parliamentary scrutiny (also reported in Chapter 13). The General Council were also concerned about an employers’ campaign against ‘red tape’. Mr Stringer explained that the Bill was intended to facilitate the elimination or replacement of all outdated or unnecessary regulation. In fact there was likely to be very little employment legislation which fell into this category. The Government had no intention of removing workers’ rights. No measure would be taken unless there was consensus on the need for it. The Task Group expressed concern that the Government was not arguing the case for good quality new regulation on employment rights. Where there was proper social partner dialogue, legislation tended to be much better, for example, in the Netherlands. There was a fear that a hostile future government would use the new powers in the Bill to remove protective legislation. The Task Group will continue to monitor the situation.

1.11 Civil liberties issues

Human Rights Act

The Human Rights Act came into effect in October 2001, and for the first time enabled workers to enforce their rights under the European Convention on Human Rights within domestic courts and tribunals. Following the motion passed at Congress 2000, the TUC has undertaken a range of activities aimed at investigating the implications of the Human Rights Act for advancing workers’ rights and promoting awareness of the Act among trade union and union members.

In November, the TUC held a conference on the Human Rights Act, in conjunction with Irwin Mitchell Solicitors and supported by the Industrial Society. The conference was also supported by the Equal Opportunities Review and Butterworths/Tolleys. At the same time the General Council published a Guide to Human Rights in the Workplace, which examined the potential effect of the Act on such issues as privacy at work, work-life balance, whistle-blowing, equal opportunities law and the right to a fair trial. A bargaining guide on the Human Rights Act will also be produced.

The General Council have also investigated possible test cases to establish the effect of the Act on rights at work. Issues currently being considered include using the Act to tackle discrimination on grounds of sexual orientation and on family friendly rights, particularly under public sector pension schemes.

In April, the Joint Human Rights Committee which reports to both Houses of Parliament on human rights issues, called for evidence on the proposal for the creation of a Human Rights Commission for the UK. The General Council made a submission to the Committee supporting the establishment of a free-standing, independent and adequately resourced Commission, whose role should include raising awareness of human rights issues, providing education and advice to statutory and public bodies on their duties and responsibilities under the Human Rights Act. The Commission should work alongside and in collaboration with the existing equality commissions and the Information Commissioner in promoting a ‘human rights culture’ within the UK.

Data Protection

Data protection and, in particular, the controversial issue of surveillance in the workplace, has had increased prominence during the last year. This was largely due to the introduction of overlapping and potentially conflicting legislative measures dealing with the use of new technologies to intercept communications in the workplace and workers’ rights to privacy.

In September, the General Council responded to the Government consultation on the draft regulations on lawful business practice regarding the interception of communications. In line with the motion passed at Congress 2000, the TUC expressed concern that the Regulations expanded the scope for unwarranted workplace surveillance, inadequately safeguarded workers’ rights to privacy and potentially contravened the Human Rights Act 1998.

In October, the Information Commissioner published a draft code on the use of personal data in employer/employee relationships. The General Council welcomed the detailed guidance contained in the Code, but called on the Commissioner to amend the code to include clear advice on how different legal measures on workplace surveillance, data protection and the Human Rights Act interact. The General Council also argued that the Code should apply to all workers and not simply ‘employees’ and should recommend that employers when developing and implementing policies and procedures on data protection should consult with trade unions and workplace representatives. In support of these arguments the TUC published a report Surveillance at Work: Sensible Solutions which highlighted good practice agreements on issues such as email use, the use of CCTV cameras and alcohol testing, which have been negotiated by unions with employers.

The Information Commissioner intends to publish the final Code by the end of the year and plans to consult key parties, including the TUC and the CBI, on the final drafting of the Code in the Autumn. The TUC will hold a briefing session for affiliated unions and will distribute further guidance on data protection issues in the Autumn.

Criminal Justice Issues

In furtherance of the resolution on criminal justice carried at the 2000 Congress the General Council have continued their involvement in the Justice Forum, an umbrella body set up by unions which organise within the justice system, which campaigns for improvements in the criminal justice system. The TUC is also represented on the Criminal Records Bureau Customer Forum, which monitors the implementation of the new ‘disclosures’ which employers can require from prospective employees. The disclosures show whether or not the employee has a criminal record. The TUC has said to the Government that although it supports the use of such disclosures for those working with children and vulnerable adults, it is unnecessary for other jobs and will encourage employers to substitute the use of such disclosures for proper personnel procedures. In addition, the TUC has pointed out that police records are notoriously unreliable, which sheds doubt on the effectiveness of the new system.

The TUC is also represented on a new Home Office review body which is looking at the Rehabilitation of Offenders Act with a view to improving it. NAPO is also represented on the group.