By Frances O’Grady, TUC General Secretary
It sounds all too familiar to today’s trade unionists.
An employer hell-bent on breaking union organisation by exploiting loopholes in the law.
And government ministers, desperate to whip up hostility against unions, ready to offer a helping hand.
Twenty years ago David Wilson and Terence Palmer faced that same challenge. The Daily Mail sought to bribe David to opt out of his union’s collective agreement. Likewise, Associated British Ports ‘offered’ a pay rise to individual workers, on condition that they sign away collective bargaining rights.
But the workers won. It was thanks to their determination, the unions that backed them, clever advocacy in the courts and, ultimately, a new government prepared to change the law and stop such abuses of employer power.
Today, we are seeing more evidence of employers looking to resist, or break, organised labour.
In emerging sectors, such as internet retailing and the platform economy, our organisers are already up against insecure contracts, high turnover and well-funded employer strategies to ‘avoid’ or bust unions.
And bad bosses are getting bolder. As Professor Alan Bogg explains in his essay, P&O Ferries were prepared to flout UK law to replace unionised staff, on the union rate for the job, with agency labour on poverty pay.
Despite issuing condemnations at the time, the Conservative government now is intent on ‘doing a P&O’ itself.
It plans to change the law so that employers can replace workers who vote for strike action with agency workers - a radical attack on workers’ fundamental right to withdraw labour.
From ferries to the gig economy, we know that collective bargaining is the best way to achieve real improvement in workers’ terms and conditions.
Representation and voice at work is a fundamental right, which also delivers higher wages, greater equality and pay solidarity, and higher productivity.
Yet, from Margaret Thatcher’s repeated attacks to David Cameron’s 2016 Trade Union Act, some governments have always sought to demonise working people who stand up for their rights and rigged the law to chip away at our last line of defence - trade unions.
The system is stacked against workers who want to organise and collectively bargaining. Women, young, disabled and black and ethnic minority workers - who are more likely to work on the frontline of low pay and zero hours - lose out most.
Statutory union recognition is slow and bureaucratic, providing ample opportunities for employers to frustrate workers’ voice and ultimately only giving bargaining rights in limited areas.
Today, UK unions do not even have rights to go into workplaces to talk to workers about what unions could offer them. This means there are huge barriers to reaching and recruiting workers in a UK labour market scarred and fragmented by outsourcing, insecure contracts and false self-employment.
Sectoral bargaining was once widespread in the UK across the public and private sectors. It encouraged a drive to invest in higher productivity and skills, and decent work.
Few sector-wide agreements in the private sector remain.
Yet across much of the rest of Europe, sectoral bargaining is commonplace, operating alongside firm-level bargaining, to set minimum standards.
And it is clear that where it is in place, sectoral bargaining plays an essential role in maintaining collective bargaining coverage.
In a major study of collective bargaining, the OECD has concluded that “collective bargaining coverage is high and stable only in countries where multi-employer agreements (mainly sectoral or national) are negotiated”.
Interest is now spreading beyond continental Europe.
Notably, New Zealand’s Labour government has faced down noisy business opposition and is in the process of introducing sector-wide fair pay agreements (FPAs).
New Zealand legislation would allow a union to initiate bargaining for an FPA if it meets either a representation test of at least 1,000 employees or 10 per cent of the employees in proposed coverage.
There is an additional ‘public interest’ test to allow FPAs to be introduced to sectors featuring low pay, limited bargaining power, or lack of pay progression.
In the UK, there are several industries where sectoral arrangements like these are urgently needed to raise minimum standards.
The hospitality sector, whose staff bore much of the brunt of the coronavirus shutdown, is characterised by low pay and poor working conditions.
Likewise, in social care, privatisation and outsourcing has pushed the workforce - mainly women - into low pay and insecure contracts. There is also widespread non-compliance with basic employment rights, including the National Minimum Wage.
FPAs could improve conditions for workers not covered by existing national agreements by improving pay, ensuring decent contracts and working conditions, and access to training. This would be a big win for those receiving care too - a top class service is only possible with decent conditions for those who deliver care.
In the platform economy, where some employers fought a long battle against unionisation, unions are building an important presence.
The GMB has signed collective groundbreaking agreements with Evri (formerly Hermes), Uber and Deliveroo.
But a sectoral agreement would help to ensure that all companies in the sector compete on a level playing field. Corporate cowboys - some of them multi-billion profit making multinationals - who exploit workers should not be free to undercut and drive decent employers out of business.
Sectoral bargaining rights would not be sufficient on their own. Unions will always have to do the hard graft of recruiting and organising workers. That is how we establish our power to negotiate a decent deal with employers. But the legal framework should give unions a fair crack.
Too often, employers can prevent union recruitment by simply refusing to allow union representatives onto their premises and penalising their workforce for engaging with unions.
To change this, we propose:
The threshold for triggering the statutory recognition scheme should be reduced to 2 per cent of the members of a bargaining unit. This would bring it into line with the threshold for UK rights to collective consultation, which was recently reduced to that level.
Unions should automatically be entitled to statutory recognition where 50 per cent or more of workers in a bargaining unit are members, with no requirement to ballot.
And recognition should be awarded if unions win a simple majority in a ballot. The requirement that 40 per cent of the workers in a bargaining union must vote in favour should be removed.
The current 21-worker threshold should be removed to ensure that workers in smaller businesses can also gain the protection of the union..
To tackle atomisation, in large, multi-site organisations, unions that have recognition within one bargaining unit should have the ability to scale up their bargaining rights across the organisation without reaching the 2 per cent membership threshold within the additional unit or workforce group.
The Wilson and Palmer case proves that workers and our unions can win. Rebalancing power in the workplace required grassroot organising, tactical nous and a government committed to a fair framework of law that levels the current power imbalance between employers and workers.
We need the same determination now to win the voice, dignity and decent pay and conditions that working people have well and truly earned.
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