Chapter 1 - Employee rights - campaigns

GENERAL COUNCIL REPORT

Chapter 1

Campaigning for employee rights

Introduction The campaign for employee rights has been at the centre of the TUC's work programme during this Congress Year. The General Council have sought to build on minimum standards work reported to last year's Congress and have been guided by Congress resolutions, in particular composite 11 on rights at work. The Representation at Work Task Group met in November to shape the work programme for the year. Intensive public campaigning has been combined with detailed policy work. Both aspects are reported in this chapter. In addition the TUC has kept in touch with a wide range of organisations, including employers organisations and pressure groups. The TUC is also represented on a number of bodies concerned with employment rights, including the ACAS Council on which our representatives are Mr Bill Morris, Mr John Edmonds and Mr Brendan Barber (Deputy General Secretary).

BOX

Representation at Work Task Group General Council: Mr Bill Morris (chair), Mr Bill Brett, Mr George Brumwell, Ms Donna covey, Mr Garfield Davies, Mr Nigel de Gruchy, Ms Rita Donaghy, Mr Tony Dubbins, Mr David Evans, Mr Davey Hall, Mr Roger Lyons.

TUC staff: Mr John Monks, Mr David Lea, Ms Kay Carberry, Mr David Coats, Mr Pete Mitchell.

END BOX

1.2 Tory proposals on employment rights

Green Paper In November the Tory Government published a Green Paper Industrial Action and Trade Unions which proposed a number of anti-union measures. The plans had already attracted considerable criticism as the TUC had released a leaked version of the Green Paper two weeks before publication. Detailed TUC briefings had been circulated to MPs and affiliates, together with the results of an opinion poll commissioned by the TUC which revealed little support for further curbs on trade unions and a widespread view that the Green Paper was simply a pre-election gimmick.

The Green Paper contained a range of proposals: trade unions would be open to legal action and claims for damages where industrial action had a "disproportionate or excessive effect"; the notice period for industrial action would be doubled to 14 days; industrial action ballots would require the support of a majority of all those entitled to vote, rather than a majority of those voting; fresh ballots would be required where a dispute continued; rights to time off for trade union duties and activities would be abolished; rights to disclosure of information for collective bargaining purposes would be abolished; and there would be new requirements on union elections.

Significantly, employers' organisations were strongly opposed to the Green Paper and agreed with the TUC that its proposals were unworkable and would damage industrial relations. A TUC delegation met the then President of the Board of Trade and pressed him to recognise the strong consensus against the Government's proposals. It was clear from the meeting that the Government saw the Green Paper as an election issue and would press ahead with its plans regardless of the reactions from employers or unions.

There was a three month consultation period on the Green Paper. The TUC invited comments from affiliates on the proposals and on this basis a submission made. This was also was sent to affiliates and to a wide range of employers' organisations. The Tory Manifesto included aspects of the Green Paper's proposals but their efforts to obtain favourable publicity on the issue largely failed. Proposals on small businesses It was reported to the 1996 Congress that a leaked letter from the then President of the Board of Trade had revealed that the Government was considering abolishing employment rights for employees in small businesses. In October, the Cabinet's De- Regulation Task Force produced a report in which a number of recommendations were made. These included: abolishing the right to claim unfair dismissal for new employees in small businesses; not 'over implementing' EC Directives and disincentives to stop 'frivolous' industrial tribunal claims. The General Council made a full response to the Task Force recommendations. They pointed out that the proposal on unfair dismissal was inequitable and probably illegal, as it would discriminate indirectly against women. They said that the Government consistently failed to implement EC Directives properly and they confirmed their support for the Employment Rights (Dispute Resolution) Bill, which made a number of proposals to improve the resolution of individual employment rights disputes.

1.3 Employee rights - election campaign

In the period leading up to the general election, the General Council aimed to influence the debate on employee rights with a high profile advertising campaign under the slogan "Put a cross in the wrong place and you can kiss employee rights goodbye". It also sought to support the campaign with materials for trade unionists and others who are concerned with workplace issues right up to polling day. The campaign cost nearly £1 million, which was raised by affiliated unions after an appeal from the General

Secretary.

At the campaign launch, on 14 February, the General Secretary told the media that the campaign had two aims: first, to tell voters that important employee rights issues would be decided by the next government and the TUC wanted voters to find out where candidates stood on these issues and take this into account when deciding how to vote. Second, to tell candidates and their political parties that employee rights are popular with voters across the political spectrum. Polling evidence confirms that voters, including a majority of Conservative voters, back employee rights. At the media launch the findings of a TUC opinion poll were also revealed. This showed that the campaign had popular appeal with 72 per cent wanting to see politicians talk more about employee rights (rising to 75 per cent among those with jobs).

The national campaign involved the production of a cinema advertisement, posters on billboards and press advertising: the TUC commissioned the advertising agency Delaney Fletcher Bozell to carry out this work. The national cinema advertisement ran for four weeks and reached a saturation audience of over 2.2 million cinema-goers, most of whom were between the ages of 18 and 35; during this time nearly 250,000 free TUC postcards were taken from cinema foyer displays. Nearly 1,000 billboards carried the TUC poster for up to four weeks, and press advertisements were placed in national and regional newspapers. The press advertising coincided with the national and regional launches of the campaign, which were reported on regional television and radio and in the press.

Alongside the national campaign went the production of a campaign pack, leaflets and a poster, these were used up to polling day, and were distributed via a TUC 24-hour telephone campaign line. The campaign materials centred on five topics: employee rights in small firms, low pay, long working hours and lack of holiday rights, parental leave, and equal rights for part time workers. Facts and figures on the five topics were provided in 11 regional editions including: East Anglia, South East, Greater London, South West, West Midlands, East Midlands, Yorkshire and Humberside, North West, Northern, Wales and Scotland.

The statistics gave information by region and constituency and set out six questions for campaigners to put to candidates and canvassers. The pack also contained information on campaigning in the media, model letters for the media, model press releases, artwork for leaflets, answering doubters and critics, and answering the Government's plans for industrial relations. Affiliates gave enormous help by advertising the availability of the campaign telephone line through adverts in union journals and by placing leaflets in mailings. By the end of the campaign on 1 May some 850,000 leaflets had been distributed, 70,000 posters went up and nearly 20,000 campaign packs were sent out. The telephone campaign line responded to 1,200 calls. Materials were taken by individuals, voluntary organisations and political groups , as well as trade unionists.

All the campaign information was also available on the Internet and was updated regularly. In addition a TUC election information telephone line was in operation for six

weeks to provide help on industrial issues to election candidates. During the campaign a series of media reports and initiatives were taken. These included Wage Rage a report on low pay; a letter on the European social chapter to Britain's top 300 companies from John Monks; a report on employee rights in Britain's 50 top companies; the launch of Partners for Progress; a report on the composition of Britain's workforce; and a letter for publication from John Monks to all local papers. These initiatives received considerable media coverage.

Following the election, the campaign is continuing with a focus on securing trade union recognition in the workplace. A series of activities and publications have been planned with the aim of winning public support for legislation on fairness at work.

1.4 Labour's employee rights initiatives

Following the election, there have been a number of important announcements from the Labour Government on employee rights. Within the first few days the Government confirmed its commitment to sign up to the Social Chapter. The General Council welcomed this decision which will mean the implementation of the European Works Councils Directive and the Parental Leave Directive in the UK. The reversal of the opt- out will also extend the benefits of the European Social Partners' Agreement on Part- time Workers to UK employees. Further information on these developments is given in Chapter 4.

The Queen's Speech reiterated the Government's commitment to fairness at work and legislation to introduce a national minimum wage. The TUC's work in relation to the the minimum wage is covered in Chapter 2.

An early decision was taken by the new Government to restore rights to join an independent trade union for employees at GCHQ. Arrangements are in hand to celebrate the successful conclusion of the long campaign for justice for GCHQ employees. Further details are given below.

The Government also confirmed that the requirement for regular re-authorisation of check-off deductions would be repealed. The General Council were concerned, however, that the timetable for repeal would mean that many unions could not avoid having to complete the current round of re-authorisations. Prior to the announcement, the TUC had written to a range of employers' organisations seeking their support for removing this unnecessary burden on business and unions. The TUC's lobbying revealed no support for retaining the provisions. During the year the TUC has been providing briefings and assistance to unions on the legal requirements relating to check-off.

There have been contacts with Ministers on a range of other employee rights issues since the election. One concern raised by the TUC has been the Regulations on consultation rights on redundancies and transfers. It was reported to last year's Congress that the TUC had complained to the European Commissioner for Social

Affairs that the Regulations did not meet the terms of the Directives as interpreted by the European Court. The European Commission agreed that the Regulations were inadequate and informed the previous Government of their conclusion. The TUC welcomed this development and the decision of the new Government to review the Regulations. While that review takes place, the three affiliates which had challenged the Regulations in the Courts have adjourned their action.

Another priority pursued by the TUC has been the Labour Party's Manifesto commitment on statutory rights to union recognition. Discussions with the President of the Board of Trade identified five areas for further work: the definition of bargaining units; resolving inter-union disputes; the role of the Representation Agency; assessing the level of support for recognition; and ensuring compliance where recognition is awarded. The TUC is developing these issues in line with the policy set out in Your Voice at Work and in the resolution of the 1996 Congress on rights at work. Talks have also taken place with the CBI on the question of rights to union recognition. The TUC will be continuing its campaign to win support for early legislation on union recognition.

There is to be a White Paper on fairness at work, including trade union recognition, within the next few months. This will also provide the opportunity to press for protections on a range of issues in line with the resolutions of the 1996 Congress on minimum standards and rights at work. 1.5 GCHQ

Rally The annual march and rally calling for the restoration of trade union rights at GCHQ took place in Cheltenham on 25 January, thirteen years to the day since the announcement of the ban on union membership. There was a particularly large turnout, unusually good weather and an optimism that union rights would be won back after the election. A packed Town Hall rally was chaired by TUC President Tony Dubbins and other speakers were John Monks; Peter Hain, Shadow Employment Spokesperson; Nigel Jones, Liberal Democrat MP for Cheltenham; Councillor Mrs Pat Thornton, the Mayor of Cheltenham; John Sheldon for the Council of Civil Service Unions; and Mike Grindley for GCHQ Trade Unions.

Lifting of the ban Two weeks after the election, the Foreign Secretary announced that the Government was restoring the right of GCHQ employees to join an independent trade union of their choice. The TUC gave a warm welcome to the decision and paid tribute to those who had suffered as a result of defending the basic human right to belong to a trade union. The TUC is in close contact with civil service trade unions regarding the discussions which are taking place with GCHQ management on matters such as the terms of the collective agreement, reinstatement and compensation.

The successful conclusion of the long campaign will be celebrated with a march and rally in Cheltenham on Sunday, 31 August. The event will combine the traditional elements of the annual march with family activities and entertainment. Congress will

also be an opportunity to acknowledge the significance of the campaign to lift the ban on union membership. There will be a video showing the history of the campaign, and the dismissed trade unionists will be presented with the Gold Badge of Congress in appreciation of the sacrifice they have made. As well as these victory events, it is hoped that a meeting can be arranged between the GCHQ Director and the dismissed trade unionists as a signal of the return of trade union rights for GCHQ employees.

1.6 The Working Time Directive

The General Council have continued to campaign for the proper implementation of the EU Working Time directive and for action to tackle excessive working hours in line with Composite Resolution 5 of the 1996 Congress.

Judgment of the European Court of Justice

In November 1996 the TUC published Pushed to the Limit, a report which made the case for the implementation of the Working Time directive in the UK. It set out the growth of excessive working hours in the UK, noted that average working time in this country was increasing at a time when working time was falling in the rest of the European Union and argued that there was a wide gap between the hours that people actually worked and the hours that they would like to work. In addition, Pushed to the Limit recorded that around 2.5 million employees in Britain had no entitlement to annual leave - the Directive would be of immediate benefit to them by guaranteeing four weeks' paid holiday.

The report was published to coincide with the judgment of the European Court of Justice in the case brought by the Conservative Government challenging the validity of the Working Time directive. The Government argued that the Directive was a measure which granted rights to individual employees and therefore should have been subject to the requirement of a unanimous vote in the Council of Ministers. The legal base chosen by the European Commission and the other member states (and which was not challenged by Britain at the time) was that the Directive was a health and safety measure subject to qualified majority voting. The European court rejected the argument of the Conservative Government and affirmed that the Directive was properly adopted as a health and safety measure.

DTI Consultation Document and the Trade Union Response

Following the decision of the ECJ, the Department of Trade and Industry published a consultation paper seeking views on the implementation of the Directive in the UK. The document was based on the view that any regulation of working time would be a burden on business and that the Government should seek to minimise the impact of the Directive. Following a seminar at which negotiators were consulted, the TUC submitted a detailed response to the DTI in February 1997. This made points concerning the coverage and enforcement of the regulations and scope for derogations. It also set out proposals on rest breaks, holidays, shift and night working and patterns of work. The

TUC's aim was to show how effective regulations could be framed in order to provide maximum protection from excessive hours for the greatest number of workers, and so implement the intentions of the Directive. Further discussions with Government Since the General Election the TUC has held discussions both with ministers and officials about the implementation of the Directive. It is clear that the new Labour Government is considerably more enthusiastic about the full implementation of the Directive than their Conservative predecessors. As yet there is no clear timetable for the preparation of regulations to implement the Directive. The General Council will treat this issue as a priority in the forthcoming year.

Regional Seminars for Full-Time Officers

In order to prepare for the implementation of the Directive a series of regional seminars has been held for full-time officers. These briefings covered the origins of the Directive, the rights that it creates for individuals and the scope for implementing the detail of the law through collective agreements. It has been emphasised that this legislation includes a guaranteed role for trade unions and that the TUC will be lobbying the Government to ensure that as much as possible is left to collective agreements. It is anticipated that approximately 300 people will have attended the briefings by the time that the programme is completed in October 1997.

1.7 Employment Rights (Dispute Resolution) Bill It was reported to the 1996 Congress that the previous Government had published a draft Employment Rights (Dispute Resolution) Bill. In October the General Council had submitted their views on the Bill. While giving the Bill their general support, the General Council had been concerned about some aspects of the Bill, in particular, the framework for the proposed arbitration alternative for unfair dismissal claims and a clause relating to the use of "in house" procedures. In addition, the General Council expressed their concern at a linked proposal to introduce costs to encourage out of Court settlements.

The new Government decided to proceed with the Bill. The TUC and ACAS were successful in achieving amendments to the arbitration framework. The costs proposal was also dropped. The Bill was introduced into the House of Lords in July as a Private Members' Bill with Government support. There were still two areas of concern for the TUC: the arbitration alternative could be extended by the legislation to cover the discrimination jurisdictions, which the TUC opposes and the Clause relating to internal procedures was still biased in favour of employers. The TUC is discussing these issues with the Government. The TUC will organise national and regional briefing sessions for union officers on the implications of the Bill after it has been enacted, focussing in particular on the new arbitration alternative.

1.8 Individual employment rights Trade unions continue to be increasingly involved in protecting their members' individual rights. The number of applications to industrial tribunals continues to rise, with a significant growth in claims for breach of contract. In furtherance of resolutions carried by the 1996 Congress on employment agents legislation, on employment rights for civil servants, on waiver clauses and on rights at work, the TUC has urged the new Government to review contractual law, because abuses such as these and the use of nil hours contracts and contracts 'for service' via employment agencies are growing. Industrial tribunals are increasingly being required to define whether or not applicants are employees and covered by employment protection law. The other major areas of concern are the existing qualifying periods for certain employment protection measures, in particular, unfair dismissal and redundancy. The TUC has urged the new Government to reduce the qualifying period for unfair dismissal to one year in the light of the Court of Appeal judgement in the Seymour Smith case (see below) and then review all existing qualifying periods with a view to removing them altogether, in line with the resolution carried at the 1996 Congress on rights at work from day one of employment.

The "Seymour Smith" Case It was reported to the 1996 Congress that the Court of Appeal had ruled in the case of R v Secretary of State for Employment ex parte Seymour Smith and Perez that the qualifying period for unfair dismissal claims was indirectly discriminatory because more women were affected by it. The case was appealed to the House of Lords. In March, the House of Lords referred the principal legal points to the European Court of Justice (ECJ). These points were: whether compensation for unfair dismissal constituted pay, and if so whether the conditions determining whether a worker had the right not to be unfairly dismissed fell within the scope of Article 119 of the EC Treaty or under the Equal Treatment Directive; the legal test for establishing the degree of disparate impact; when this test must be applied and the legal conditions for establishing the objective justification for the purposes of indirect discrimination.

The Government has said that it intends to await the outcome of the ECJ hearing before making a decision on qualifying periods for unfair dismissal. In the meantime, the TUC has continued to advise unions to submit claims to industrial tribunals on behalf of members who think they have been unfairly dismissed but lack the two year qualifying period. Thousands of claims have been submitted. Some tribunals are 'staying' them pending the outcome in Seymour Smith. Others have attempted to strike them out on jurisdictional grounds, but where this has happened, appeals to the EAT have been successfully "stayed". The TUC has produced briefing materials for unions and has also been urging the President of the EAT to direct the industrial tribunals to 'stay' claims. If unions do not submit claims within the three month time limit for unfair dismissal, existing case law suggests that they will not be able to submit them retrospectively if the law changes.

Industrial Tribunals The rise in applications to industrial tribunals, reported to the 1996 Congress and referred to above, is mainly attributable to changes in EC law, worsening industrial relations, particularly in small businesses, where union recognition is uncommon, and

to a lesser extent, the new jurisdictions acquired by the industrial tribunals under the Disability Discrimination Act and the Pensions Act. During the year the TUC has continued to publish the Industrial Tribunals Newsletter, which reports on case law developments, procedural changes and other 'housekeeping' matters, as well as carrying features on specific issues such as developments in discrimination law.

The TUC has also continued to liaise with TUC representatives on the Users' Groups and held a meeting for them in July. In April the General Secretary was a principal guest speaker at the annual Conference of Chairs of Industrial Tribunals. In May, the TUC met the new Chief Executive of the Employment Tribunals Service (ETS), which is the DTI agency now responsible for the administration of the industrial tribunals and the Employment Appeal Tribunal (EAT). In July, the General Secretary had a meeting with the President of the EAT, Mr Justice Morison, to discuss a number of issues, including the relationship between the EAT and the industrial tribunals, the handling of unfair dismissal claims and appeals and the Seymour Smith cases.

Industrial Tribunal members In March it was announced by the new agency which runs the industrial tribunals, the Employment Tribunals Service (ETS), that members' travel expenses claims were to be replaced by a flat rate system. The TUC lobbied extensively to have the decision reversed, as it had been made without any consultation with the members and was inequitable in that it affected some members far worse than others. In May, the new Minister responsible for the industrial tribunals, Mr Ian McCartney, announced that the proposed change would not proceed and that he would consult members on where savings might be made. The TUC has given support and advice to a new organisation called the Tribunal Members' Association (TMA), which is a pressure group for members from both 'sides' of the industrial tribunals. The TMA lobbied the Government on the matter of expenses and the TUC has also lobbied to have reversed a similar change which affects witnesses and parties at industrial tribunals and means that they will not be able to claim an attendance allowance. The TUC believes that this would be particularly unfair on applicants. The Minister has said that he would monitor the impact of this change to ensure that it did not have an inequitable effect.

The TUC is due to nominate members to industrial tribunals in November/December of this year. During the last round of nominations, in 1994/5, the proportion of women, black and disabled members nominated by unions was disappointingly low. At a meeting with the DTI in May, the EOC and the CRE proposed opening the nomination process to the public so that more women and black employees would put their names forward. The TUC argued against this on the basis that members needed the sort of industrial relations experience which union activities provided but agreed that an improvement in terms of equality was needed. The CBI also opposed it. The DTI decided to proceed on the existing basis for the time being, partly for administrative reasons. In order to encourage unions to make more effort to nominate women, disabled and black members, the TUC will take a number of steps, including the production of a guide for prospective nominees, emphasising the importance of informal activities, not just a list of official union posts held.

1.9 Civil liberties

The General Council have maintained a close interest in civil liberties issues and access to justice for working people. The TUC has supported the Justice Forum, a campaigning group set up by unions involved in the justice system, which held its inaugural conference in March. Issues raised in the resolution carried at the 1996 Congress, on community justice, have been part of the agenda for the Justice Forum.

The Police Bill In furtherance of a resolution on the employment of ex-offenders carried at the 1996 Congress, the TUC lobbied MPs on Part V of the Police Bill which proposed to allow employers to check whether prospective employees had criminal records, through a centralised system. A briefing was circulated to all MPs, which was quoted extensively in Hansard. The TUC's objections to the Bill were that the proposed new system allowed for an unwarranted intrusion into a person's privacy. Whereas the TUC accepted that there were some areas where criminal records should be checked, for example, where work with children was involved, the Bill went far beyond this and would create a class of permanently unemployable people, many of whom had only offended once and would be unlikely to do so again if they had steady employment.

The TUC argued that the existing Rehabilitation of Offenders Act should be reviewed to ensure that it was operating effectively and called on the Labour Party to undertake such a review. The Police Bill was enacted in March. In August, the TUC produced a briefing for unions on the implications of the Police Act and urged them to lobby the new Government to repeal it.

1.10 disputes

The TUC has given assistance to a number of unions engaged in industrial disputes during this Congress year including the regional railways dispute and the Magnet Dispute, both of which were the subject of Congress resolutions in 1996. The Magnet dispute continues and is referred to below, along with other disputes in which the TUC has lent assistance.

Critchley Labels Dispute The dispute arose over the company's decision to de-recognise the Communication Workers Union.

Following stoppages in protest against the de-recognition of the CWU, the company issued an ultimatum that unless there was a return to normal working the members of the CWU would be sacked. The members decided to defy the ultimatum and the company issued notices of dismissal to all thirty-one members of the CWU on 6 February 1997. The company then engaged alternative staff from a local employment agency. Critchley Labels was previously owned by British Telecommunications.

At the request of the CWU, the TUC asked all affiliated unions to send letters of support and, if possible, donations to the support fund for the members in dispute. The

TUC General Secretary attended a protest meeting outside the factory and called upon the company to enter into negotiations with the CWU to establish a return of the union's members. The CWU has continued to organise events to sustain its members in dispute which have been supported by many organisations including the TUC.

Magnet Dispute The 1996 Congress carried an emergency motion condemning the sacking of 350 striking workers by Magnet Kitchens, Darlington. Member of UCATT, GMB, TGWU and AEEU had been engaged in a lawful trade dispute over pay and conditions when they had been dismissed on 3 September. The company had continued production by engaging a replacement workforce. Congress supported the dismissed strikers in their bid to seek an equitable solution of the dispute.

Subsequently, the TUC was asked by the four unions concerned for assistance and support in progressing the dispute. The TUC General Secretary called for a national consumer boycott of Magnet Kitchen products. In addition, the Secretary of the strike committee was invited to attend a meeting of the TUCJCC to seek support of the dispute. The Secretary also attended the annual conference of the TUCJCC where he addressed the delegates.

In March the TUC chaired meetings of General Secretaries/Senior Officials of the four unions to consider how the TUC might further assist progress of the dispute. As a result the TUC wrote to all affiliated organisations asking for donations to be made to the Magnet Families Hardship Fund. Also, Regional Councils were asked to co-ordinate, through officials of the four unions, members of the Regional Council and Trades Union Councils the leafleting of premier Magnet showrooms, on an on-going basis. Sacked Magnet workers were joined by the TUC General Secretary and General Secretaries/Senior Officials of the four unions in lobbying the company's annual shareholders meeting in London.

Universities Dispute All eight trade unions representing staff in higher education (the AUT, NATFHE, UNISON, MSF, AEEU, GMB, TGWU AND AUCL) worked together in a joint campaign on pay. An initial pay offer by the University and Colleges Employers Association was firmly rejected by all eight unions. Members of all the unions were balloted which resulted in majority votes for strike action, which took place on 19 November.

At the request of the unions the TUC assisted in co-ordinating discussions which led to a number of meetings with the employers concerned under ACAS auspices which eventually led to a substantially improved offer on 10 January. This was accepted by the members of all eight unions.

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