Chapter 1: employment rights
Chapter 1 - employment rights and fairness in the workplace
Contents
The Fairness at Work White Paper, published in May, has been the most significant development in industrial relations for many years. It represented a complete break with the legislation enacted by the Conservative Governments which had been aimed at imposing ever tighter restrictions on unions and reducing the rights of people at work. The proposals in Fairness at Work fall well short of the demands set out in Congress resolutions on employment rights. And the Government has made it clear that it will take account of employers' interests as much as it does those of the employees. Nevertheless these measures do offer a real opportunity for increased trade union influence in the workplace and provide a chance to offer members and potential members greater protection from workplace injustice.
The process leading to the White Paper was one of intensive activity. The General Council and the Executive Committee held special meetings and their representatives met ministers and the Prime Minister on several occasions. There was also a series of meetings with representatives of the CBI, in response to the Prime Minister's challenge to narrow the gap with employers on recognition (the conclusions are set out as annex 1 to this chapter). The Representation at Work Task Group has also continued to meet during the year. In particular, the Task Group has undertaken an in-depth examination of certain issues related to the White Paper, such as enforcement and de-recognition.
Linked to this work on policy, the TUC and unions undertook a wide range of campaigning activities, aimed at making the case for representation at work and highlighting both the problems with the excessive powers which now lie in the hands of employers and the benefits to both employers and workers of the partnership approach to industrial relations.
Following publication of the White Paper, a conference of unions was held and as a result of this and written submissions from unions a statement was adopted by the General Council at their meeting on 22 July. This is included as annex 2 to this chapter.
The road to the White Paper has been a long and difficult one. But it is clear that the journey is by no means complete. The bill which will follow the White Paper will no doubt be the subject of intensive lobbying by employers and others seeking to weaken the measures outlined in Fairness at Work. At the same time the General Council and unions will be seeking to bring the proposals closer to Congress policy.
Even after legislation is enacted unions and the TUC will have much to do to see that the new law operates for the benefit of people at work.
Whilst the White Paper has been the dominant feature of the year there have been other important developments in the area of employee rights, for instance on the Acquired Rights Directive and the Working Time Directive and the abolition of the severe restrictions on check off introduced by the Conservatives. New arrangements have been introduced into the employment tribunals procedure and there have been developments too in the areas of freedom of information and civil justice. In addition the TUC has continued to give assistance to unions involved in industrial disputes. All these matters are reported in this chapter.
1.2 Fairness at Work White Paper
A composite resolution of the 1997 Congress welcomed the Government's commitment to a White Paper on employment rights and set out the TUC's priorities for new legislation. The process of securing support for those objectives has been a key priority during the past year.
The resolution covered a range of issues where new legal rights are needed. A separate resolution identified measures needed to prevent abuses of the flexible labour market. The question of statutory trade union recognition for collective bargaining purposes was the subject of particular debate in the period before the publication of the Fairness at Work White Paper. This followed the Prime Minister's address to Congress when he said: "Let me make two qualifications clear. Agree as much as possible with employers and let there be a genuine dialogue to try and resolve some of the practical problems in any such legislation". The Prime Minister then specifically challenged the TUC and the CBI to narrow the gap on trade union recognition.
Following the Prime Minister's call, there were discussions with the CBI on statutory trade union recognition. A joint TUC/CBI statement was agreed by the General Council and submitted to the Government in December 1997 (copy attached as annex 1). The joint statement identified some areas of agreement about how a recognition scheme should operate. Inevitably, however, given the CBI's opposition in principle to rights to union recognition, the statement also recorded areas of disagreement.
The areas of disagreement between the TUC and the CBI on statutory recognition were the crucial issues where the Government needed to take a decision. There were various contacts with the Government, including meetings with the Prime Minister and with the President of the Board of Trade and the Minister of State at the Department of Trade and Industry. The outcome of these meetings was reported to the Executive Committee and the General Council. A special meeting of the Executive Committee was held on 31 March to report on a meeting with DTI Ministers where an indication had been given of the likely contents of the White Paper and where a number of questions had been put to the TUC on trade union recognition. The TUC's views had been invited on the initial trigger for an application for recognition; the definition of the bargaining unit;the majority required in a ballot; whether recognition should be automatic where union membership was over 50 per cent; whether small firms should be included; whether individuals should be able to agree their own terms and conditions where there was a collective agreement; and sanctions for non-compliance.
The Executive Committee welcomed the outline of the contents of the White Paper and approved a TUC response to the questions about statutory recognition based on the policy set out in Your Voice at Work. The response opposed the idea that a union should have to demonstrate a particular threshold of support before an application could be made for bargaining rights. The TUC argued that the way to deal with weak applications was for the Agency administering the recognition scheme to have discretion to reject frivolous claims. The TUC also argued that the Agency should determine the bargaining unit where there was not agreement. Where there was a ballot on union recognition, the TUC proposed that a simple majority of those voting should result in the award of bargaining rights. The TUC's response favoured workplace ballots, with the option of a different system where there was a risk of employer interference. The response also argued that where a union had majority membership, there was no need for a ballot and that recognition should be automatic. On small firms, the TUC opposed any threshold and pointed out that workers in small firms were often those who most needed the protection of a union. The response also highlighted the fact that an exemption for small firms would have a disproportionate impact on women workers. On the question of individual opt-outs, the response stressed that the law should be changed to prevent employers offering bribes to encourage workers to sign personal contracts which involved relinquishing any rights to collective bargaining. The response emphasised the importance of effective remedies where an employer was not complying with a recognition award. The TUC proposed that the Agency should develop a model procedure agreement in order to facilitate effective bargaining and that the CAC should have powers to award new terms and conditions where an employer had not complied with the duty to bargain. The TUC's response was presented to the Government at a meeting with the President of the Board of Trade.
In early April there were indications that the CBI had modified its position on some points. It was also rumoured that the Government was minded to make an early announcement in line with CBI views. The General Secretary therefore wrote to the Prime Minister stating that the TUC could not support decisions along those lines and, if they were introduced, would campaign against them. He asked for any announcement to be deferred until the General Council had met to consider putting new proposals to the Government.
A special meeting of the General Council on 20 April agreed a paper which was submitted to the Government. This was subsequently circulated to unions and to the press. The paper reiterated the TUC's position on the key aspects of how a statutory recognition scheme should work. In particular, the TUC emphasised that ballots on union recognition should be decided by a simple majority of those voting and that people should not be denied rights on the basis of the size of the firm for which they worked. As a way of trying to move matters forward and reach an early conclusion on the White Paper, the General Council did agree that there could be a case for a minimum 'Yes' vote in order to ensure that there was the basis for sustainable collective bargaining. The General Council also acknowledged that a ballot might not be appropriate in the smallest firms, say those with fewer than 10 employees. In those cases, it was argued that a majority membership test would be more appropriate. These proposals were discussed at a meeting with the Prime Minister on 27 April.
Alongside these discussions on the content of the White Paper the TUC and unions undertook an intensive programme of campaigning activities. The campaign has had two main phases. The first phase stressed the union recognition theme with a campaign for 'the right to be heard'. This was launched at the 1997 Congress. The second phase followed the discussions with the CBI.
Throughout the campaign the TUC has promoted a number of themes:
that very many people at work today suffer from bad treatment and exploitation, and that changes in the law are needed to protect them.
that business succeeds where it works in partnership with the unions representing their workforce.
that union representation and recognition are a simple 'right to be heard'.
Similarly we had to rebut the arguments of our opponents that:
unions are bad for business
the White Paper was a 'payback' for unions and their leaders rather than about people at work.
rights for employees are an 'unacceptable burden on business'
The campaign was launched with a report and video entitled Focus on Fear - exploited labour in non-union Britain. An opinion poll showing that 77 per cent of the population backed a new union recognition law was released. Congress delegates also received advance copies of a campaign pack, including leaflets, badges, postcards, and briefing papers which have since been reprinted five times, in large print runs, and widely distributed throughout the trade union movement.
As a companion to Focus on Fear, a further report Denied a voice at work - The trade union case for a voice at work was published. This provided case studies of workplaces where the union was not recognised despite a clear demand from the workforce.
The next initiative aimed at revealing poor practice in the workplace was a 'Bad Bosses' telephone hotline. This took place in December 1997 and generated enormous media interest over a five month period.
Some 5,000 people phoned the line following its promotion through the media, and with special attention to Citizens Advice Bureaux and higher and further education colleges. All hotline respondents received an information leaflet Your rights at work, this was subsequently reprinted twice and some 30,000 were sold.
A report giving an analysis of the hotline calls entitled Hard times: 5,000 reasons for new rights at work was issued soon after the line closed. A subsequent report Three of the Worst contained a more detailed look at three sectors that attracted disproportionate numbers of calls to the line - the security industry, care homes and truck driving.
While much of the campaign relied on exposing some of Britain's worst employers, the TUC was also careful to make clear that these were in a minority. The campaign contrasted their actions with the employers who recognise unions including the many who have used this to build real social partnership at work.
Take your partners - The business case for a union voice was launched to coincide with the CBI conference where the TUC took an exhibition stand. Take your partners was subsequently inserted in CBI News and distributed to 17,500 boardrooms. The publication argued that most world class companies recognise unions (44 out of the top Financial Times 50 do so) and work in partnership with them. And that these partnership companies generally have a competitive advantage in their sector; more highly skilled workforces; more secure, flexible and loyal employees; and greater input from their workforces into company strategy.
A further report Fairness not Fear, published in April 1998 combined case studies of bad bosses with contrasting accounts of partnership in similar companies.
The regular Trade Union Trends survey of recognition and derecognition, published in April 1998 showed that in the period surveyed there were 45 times more employees covered by new recognition deals than had their union derecognised.
A key audience for the campaign was Members of Parliament, particularly once the discussions with the CBI had identified 'the battleground issues' of the campaign. The objective was to enlist their support and persuade them to register their views with Downing Street, ministers and party whips. While the message was taken to all the parties in broad support of the employee rights agenda, special attention was paid to Labour MPs.
Copies of the note of the talks with the CBI, prepared for the President of the Board of Trade, were circulated to MPs together with a TUC commentary.
The TUC convened a series of meetings with affiliates with links to particular MPs and a co-ordinated lobbying exercise took place that lasted until the White Paper was published. The regular meetings allowed the TUC to track the progress of the campaign and identify the issues of most interest to MPs.
A full briefing pack consisting of an information sheet on each of the issues, together with an overview of the campaign objectives was prepared for unions to present to MPs.
A series of six advertisements were also placed in media outlets likely to be read by MPs and other opinion formers. The adverts were based on five anonymous case studies drawn from the Bad Bosses line with a final advert based on the derecognition of ISTC by Co-Steel. The campaign lasted six weeks from early March, with adverts placed in the New Statesman, the House Magazine, The Guardian, Independent and Observer and some labour movement outlets.
The TUC has worked closely with the Trade Union Group of Labour MPs, relaunched following the 1997 general election.
A report was published on A Woman's Right to be Heard that both set out the problems experienced by women at work and the many successes achieved by trade unions for women in recent years. This was launched at a seminar in the House of Commons for MPs in April 1998.
Publication of the White Paper
The Government published its Fairness at Work White Paper on 21 May.
The White Paper proposes a range of new individual and collective rights for people at work, including:
Abolition of the maximum limit on unfair dismissal awards.
Reduction in the qualifying period for unfair dismissal protection to one year.
Rights to union recognition for collective bargaining purposes.
Rights to be represented by a union in disciplinary or grievance procedures.
Stronger protection against victimisation of trade union members.
Rights to claim unfair dismissal if dismissed for taking part in lawful industrial action.
Removing the requirement to name those being balloted on industrial action.
Abolishing the posts of Commissioner for the Rights of Trade Union Members and Commissioner for Protection Against Unlawful Industrial Action.
Improved maternity rights.
Rights to parental leave.
Provision of funds for training to promote partnerships at work.
Other aspects of the White Paper are more consultative in nature. Areas where the Government invited views include:
How to protect against abuses of waiver clauses in fixed-term contracts.
Protection against abuses of zero hours contracts.
Extension of employment protection rights to those not classified as >employees=.
Whether training should be a subject for collective bargaining under the statutory scheme.
The scope for de-recognition within the context of a statutory recognition procedure.
Simplification of the law and the Code of Practice on industrial action balloting.
Simplification of the notice requirements on maternity leave.
Implementation of the Parental Leave Directive.
A TUC briefing on the White Paper was faxed to affiliates on the day of publication. The TUC's initial reaction was that the White Paper would inject much-needed balance into the UK labour market and that the TUC's campaign had chalked up some notable successes. There was disappointment, however, at the requirement for a 40 per cent 'Yes' vote in a recognition ballot and the exclusion of firms with 20 or fewer employees from statutory rights to recognition.
The TUC arranged a consultative conference on the White Paper for affiliated unions on 24 June. The event had been scheduled for early May, but had been postponed when it became clear that the White Paper would not be available in time. A special meeting of the General Council was held on 10 June to approve a statement on the White Paper for discussion at the conference. The statement was circulated in advance to all those registered for the conference. It was not intended to be the TUC's formal response to the White Paper, but it provided an assessment of the main proposals.
The statement supported the proposed abolition of the maximum limit on awards for unfair dismissal compensation and argued that limits on other compensation payments should also be removed. The reduction in the qualifying period for unfair dismissal to one year was welcomed, but the TUC reiterated its view that employment protection rights should apply from the first day of employment. The White Paper's commitment to tackle the problem of waiver clauses was welcomed and the TUC argued for complete prohibition on their use in fixed-term contracts. The TUC welcomed the White Paper's recognition of the abuses of zero hours contracts and the commitment to consider extending the coverage of employment rights to those working for another person, not just those employed under a contract of employment.
On the issue of statutory trade union recognition, the statement opposed the 40 per cent ballot threshold and the exclusion of small firms. It was noted, however, that other aspects of the proposed recognition scheme were very much in line with the TUC's approach and, in particular, the statement expressed strong support for the automatic right to recognition where there is majority membership. The individual right to representation in disciplinary and grievance procedures was another welcome proposal. The measures to strengthen protection against discrimination on the grounds of trade union membership or activities were welcomed in the statement, though it was not clear whether the problem of employer bribes to sign personal contracts was fully addressed. The statement welcomed the commitment to simplify the law and Code of Practice on industrial action balloting, but noted the absence of any right to take solidarity action.
The statement gave a warm welcome to the White Paper's chapter on family-friendly employment policies. The proposals on maternity rights reflected TUC recommendations, though there were other reforms which the TUC would continue to press. The commitment to implement the Parental Leave Directive was welcome and the statement set out the TUC's views on some detailed points about its application.
The statement concluded by acknowledging that there were some areas of the White Paper where the TUC would wish to campaign for improvements, but equally it was recognised that some proposals would need to be defended against likely employer attempts to lobby for weakening the White Paper. The TUC would therefore need to continue its campaign work until the proposals were translated into legislation, which would take at least a year. The statement also noted that the White Paper's proposals provided significant opportunities for union recruitment and organising initiatives and that it would be important to ensure that the TUC and all affiliates were ready to maximise the benefits and minimise the risks posed by the White Paper.
The TUC conference on the White Paper was attended by nearly 500 people representing 50 different affiliates. The General Council's statement was introduced by Mr Bill Morris, the Chair of the Representation at Work Task Group. The Minister of State at the DTI, Ian McCartney, addressed the conference. In the light of the Government's announcement on the national minimum wage the week before the conference, there was also a presentation on the work of the Low Pay Commission by Rita Donaghy. The major part of the conference programme provided for comments from union representatives. There were 44 contributions from 28 different unions, mostly expressing broad support for the approach outlined in the General Council's statement. In reply to the debate, the General Secretary invited unions to submit replies to the White Paper to the DTI and to the TUC. He also emphasised the need to continue the campaign work and to prepare to meet the challenges of the White Paper.
Following the conference, the TUC drew up its formal response to the White Paper. The response reflected the discussion at the conference and took into account the written comments received from unions. The response was endorsed by the General Council at their meeting on 22 July in order to meet the Government's deadline for replies of 31 July. The response is attached as annex 2 to this chapter. Also attached, as annex 3, is a TUC Action Plan agreed by the General Council.
In January the Government published a consultation document on the revision of the Acquired Rights Directive and the Transfer of Undertakings (Protection of Employment) Regulations 1981. The Directive and the Regulations protect workers rights on the transfer of a business from one organisation to another. It was indicated by the Department of Trade and Industry that the responses to the consultation process would shape the Government's approach to negotiating the revision while the UK held the Presidency of the EU. The General Council's response was submitted to the DTI in February.
The TUC's submission argued that although no change should be made to the scope of the Directive there was a need to clarify the definition of a transfer in national law. The decision of the European Court of Justice (ECJ) in Ayse Suzen had complicated the position and made it possible for an employer to avoid the application of the Directive and TUPE 1981 by refusing to take on any of the current staff or use any of the assets of the previous employer. Similarly, the decision of the ECJ in Hencke suggested that the Directive did not protect the rights of employees covered by reorganisations within the public sector. Both decisions of the ECJ should be reversed in national law to ensure that workers were properly protected.
In addition, the TUC submission argued that the Directive should be widened to include transfers through the purchase of shares and that pension rights should be added to the list of rights that were protected on transfer.
At that time it was believed that a revision of the Directive was unlikely. Any change required the unanimous endorsement of all 15 member states and, as this had not been forthcoming in the previous six years there was no reason to believe that the UK Presidency would be any more successful in securing a revision of the text. However, in May it became clear that the UK Presidency was making progress in negotiating the revision. It was a matter of particular concern that one of the amendments seemed to codify the decision of Suzen and Hencke in the Directive itself. Furthermore, other changes were proposed which would enable workers= representatives to negotiate derogations from the directive in insolvency situations.
The General Secretary subsequently wrote to Ian McCartney, Minister of State Department of Trade and Industry, to raise the TUC=s concerns. This was followed by a meeting with the Minister organised under the auspices of the ETUC to raise the shared concerns of European trade unions. The Minister gave an assurance that there would be no narrowing of the scope of the Directive. Indeed, a new clause had been added to explain that any changes to the text were for clarification only and did not alter the application of the directive as interpreted by the ECJ. The UK Government=s negotiating position was clear - no changes to the Directive should result in an erosion of workers= rights. Mr McCartney also pointed out that the proposed revision included some positive steps forward. He drew particular attention to:
the new clause which would enable the Government to extend the coverage of TUPE 1981 to protect occupational pensions;
the clear application of the revised Directive to both public and private sectors; and,
the clear application of the Directive to both first and second generation subcontracting.
None of these positive steps would have been achieved without adding words of clarification to the definition of a transfer in the Directive.
In relation to the insolvency revisions the Minister said that the intention was to put workers= representatives in a transfer situation in the same position as where no transfer was taking place. There were many examples of unions agreeing changes in terms and conditions to save jobs if a company was at risk of insolvency. Under the current text of the Directive such changes were prohibited if the business was to be transferred. Under the new provisions unions would be given the flexibility to negotiate changes to save jobs. However, no changes would be permitted in the absence of a collective agreement.
The General Council took the view that the Minister=s assurances were helpful but still left unions and employers facing the consequences of Suzen and Hencke. In June the General Council agreed that the focus of the TUC=s work should now be on lobbying the Government on the following three issues and seek appropriate amendments to TUPE 1981:
the Suzen decision should be reversed in national law to prevent employers from exploiting this loophole;
an explicit commitment should be sought that, contrary to the decision in Hencke, TUPE 1981 would apply to reorganisations within the public sector; and,
the Government should make use of the option in the new directive to extend TUPE 1981 to protect occupational pension rights.
The General Council also noted that discussions had been taking place with the Local Government Association and private contractors undertaking local government work on the need for certainty in the application of TUPE. If these discussions bore fruit then they would provide a good basis for a joint approach to the DTI on an appropriate amendment to deal with the problems created by the Suzen decision.
1.4 Consultation rights on redundancies and transfers
It was reported to the 1997 Congress that the TUC had conveyed to the Government its concerns about the Regulations on consultation rights on redundancies and transfers introduced by the previous Government in response to a ruling of the European Court of Justice. The European Commission had agreed with the TUC that there were doubts as to whether the Regulations fully reflected the terms of the Directives as interpreted by the Court.
In February, the Government issued a consultation paper proposing changes to the Regulations. The consultation paper proposed a number of changes, including:
Where there is a recognised trade union, then consultation must be with representatives of that union.
Where there is not a recognised union, then non-union employee representatives must be suitably mandated and independent.
Certain conditions will apply to the conduct of elections for employee representatives.
Sanctions will be increased from a maximum of four weeksÕ pay to a maximum of 90 days.
Consultation must cover all those affected, whether directly or indirectly.
Employee representatives will be entitled to time off for training in the same way as union representatives.
l The Government is minded to abolish the 20 threshold for redundancy consultation.
A draft TUC response was circulated to unions for comment. The replies received were incorporated into a revised TUC response which was approved by the Executive Committee in March. The response welcomed the Government=s decision to review the Regulations and supported many of the proposed changes. In particular, the TUC endorsed the proposal that an employer who recognises a trade union should be obliged to inform and consult the representatives of that union over redundancies and transfers. The TUC also argued that trade union members should have rights to be consulted through their union even where there is not full recognition. Trade unions should have rights to nominate candidates in any elections for employee representatives, and the TUC welcomed the provision of safeguards for the conduct of elections. The TUC=s response also welcomed the proposals to extend the scope of the consultation rights and to increase the sanctions for non-compliance. However, the response expressed concern about the reliance on ad hoc arrangements and the timing of the consultation process. The TUC emphasised that effective consultation needs to begin at the earliest possible stage. The TUC=s response gave strong support to the proposal to remove the 20 threshold for redundancy consultation. Millions of people are denied consultation rights by the threshold and the TUC endorsed the Government=s view that all those affected by redundancies should be properly represented and consulted.
The Government has not yet announced its conclusion to the consultation exercise, though the Fairness at Work White Paper confirmed that changes will be made to the existing Regulations.
1.5 Individual Employment Rights
Trade unions have played an important part in protecting members= individual rights. As part of the employment rights campaign, the TUC has focussed on particular areas of abuse, such as the use of waiver clauses, zero hours contracts, the qualifying period and compensation at employment (formerly industrial) tribunals. In January, the TUC published a report, Job and Go! which highlighted some of the problems faced by casual and temporary workers and made recommendations to the Government. The Report attracted considerable media interest. The White Paper Fairness at Work includes proposals on many of these issues and is reported fully above.
In furtherance of resolutions carried at the 1997 Congress on employment rights, the TUC has held discussions with DTI officials on a range of issues, including the status of casual and temporary workers, and those who work in the UK for companies which are registered abroad. In November the TUC organised a seminar for union officers on the regulation of employment agencies. The Head of the Employment Agencies section of the DTI gave a presentation on the current DTI review and heard a number of points made by union representatives. The TUC has urged the Government to proceed swiftly with this review and the review of employment status which has been promised in the White Paper Fairness at Work. Discussions are currently taking place between the ETUC and UNICE on a new Directive on Fixed Term Contracts, the aim of which would be to protect workers on fixed term contracts and ensure that aggregated fixed term contracts would automatically lead to full employment status.
The TUC has organised two casework meetings for union legal officers. A range of casework was discussed, relating to individual employment rights and equal rights. Unions have won significant victories during the year on maternity rights and disability discrimination (also reported in chapter 6), casual workers, redundancy consultation and health and safety. There were also setbacks on waiver clauses and mobility clauses. At the casework meetings, unions were able to exchange information and agree to liaise on particular cases.
It was reported to the 1997 Congress that the Seymour Smith case, in which the qualifying period for unfair dismissal was held by the Court of Appeal to be indirectly discriminatory, was referred to the ECJ by the House of Lords. The ECJ decision is expected in the autumn. The Government intends to reduce the qualifying period to one year (see paragraph 1.2) so the impact of the ECJ decision will now primarily be on retrospective claims. The TUC encouraged unions to submit unfair dismissal claims on behalf of those members with between one and two years= service. Some tribunals were striking such claims out but they were being stayed at the EAT on appeal. A helpful decision in Scotland (Davidson v City Electrical Factors Ltd) meant that from March tribunals had to stay Seymour Smith claims. The TUC has been briefing unions regularly on this and other cases via the Employment Tribunals Newsletter and the TUC MAIL.
It was reported to the 1997 Congress that the Government had announced that the requirement for re-authorisation of check-off deductions every three years would be repealed. A consultation paper was issued at the end of August proposing the repeal of the obligation on employers to notify union members of increases in subscriptions, as well as the repeal of the provisions on re-authorisation. The TUC welcomed the decision to repeal these unnecessary burdens, though concern was expressed that the timetable would mean that some unions might face demands from employers to complete the current round of re-authorisations. A TUC briefing note aimed at explaining to employers why such a costly exercise should not be pursued was circulated to all affiliates.
A draft TUC response to the GovernmentÕs consultation paper was circulated to unions and in October the General Council approved the TUC=s final response. The response welcomed the repeal, but expressed concern about the proposed transitional arrangements which would involve employers notifying members that deductions of union subscriptions would continue indefinitely unless otherwise instructed. The TUC argued that there was no need for a further bureaucratic exercise explaining the consequences of repeal.
The Government intended to repeal the check-off restrictions by means of an Order under the Deregulation and Contracting Out Act 1994. Under the terms of this legislation, a Deregulation Committee was established to consider the Government=s proposal. The Committee wrote to the TUC in January seeking further information about the transitional arrangements and the practice of notifying members about subscription increases. A very quick reply was required and the TUC obtained information from union check-off contact officers to support its view that no transitional arrangements were needed as no authorisation forms included a reference to a period of three years. The response also indicated the various ways in which unions inform their members about increases in subscriptions.
Subsequently, the TUC was informed that more complex transitional arrangements were under consideration which would give members the option of continuing to pay their subscriptions under the old provisions until their existing authorisation expired. The TUC wrote to the Deregulation Committee expressing its opposition to the idea, and in particular to the suggested standard form which employers would have to distribute to members paying by check-off. The TUC also contacted the Committee Chair and the Minister of State at the DTI to convey its concern about the proposal. In March, the Deregulation Committee published its report which backed the TUC view that no transitional arrangements were needed. The General Council welcomed their conclusion and wrote to the DTI urging the Government to proceed accordingly.
In May, the draft Deregulation Order was laid before Parliament. The Government modified its earlier proposal on transitional arrangements but stated that the legal advice was that some notice to members was required. The revised notice gives members 14 days to inform their employer if they wish to continue paying under the old arrangements until their existing authorisation expires. The TUC expressed regret about the decision, but noted that the worst aspects of the earlier draft notice had been dropped. Unions were circulated with information about the Deregulation Order.
The provisions came into effect on 23 June. New members signing up to check-off after that date will not have to give repeat authorisations every three years, nor will their employer be obliged to give advance notification of increases in subscriptions. For existing members paying by check-off, these provisions will come into effect as soon as the standard notice has been circulated. The obligation to distribute the notice is on the employer, though unions can take on this task provided they are acting on behalf of the employer. Full details about the implementation of the provisions were circulated to all unions. The Deregulation Order does not apply to Northern Ireland, though the Government intends to repeal the check-off provisions there in due course.
1.7 Implementation of the Working Time Directive
In April the Department of Trade and Industry published a consultation document which included draft Regulations to implement the Working Time Directive in the UK. After consulting unions the General Council prepared a response taking into account composite resolution 5 of the 1997 Congress. The General Council welcomed the introduction of new rights for workers contained in the regulations including:
a break where the working day is longer than six hours;
11 hours rest per day;
24 hours continuous rest once every seven days;
an average eight hour ceiling on night work;
health assessments for night workers;
a ceiling of 48 hours on the maximum average working week; and
three weeks= paid leave in 1998-99 rising to four weeks= leave thereafter.
The TUC=s assessment of the Regulations was based on the following three principles:
the draft regulations should seek to halt and reverse the trend towards excessive working time in the UK;
the draft regulations should provide workers with a wider range of genuine working time choices; and
any flexibility through derogations must be matched by effective protection for the workers affected consistent with the requirements of the Directive.
The derogations are elements of flexibility which will permit workers to work through their rest periods as long as they are subsequently given >compensatory rest= to make up for the rest that they have missed.
While the General Council endorsed the GovernmentÕs general approach some specific concerns were drawn to the DTI=s attention. The most obvious weakness in the Regulations was the suggestion that individual workers should be able to opt out of the 48 hour ceiling on the maximum average working week. It was proposed that a better solution would be to phase in the 48 hour limit by 2003 through a mixture of law and collective agreements. The law could establish a maximum ceiling on average working hours which reduced year on year from October 1998 to 2003. Employers would need a collective agreement to be able to make use of the ceiling on maximum working hours otherwise the 48 hour average would apply.
The TUC also opposed the suggestion that employers could make use of derogations through >workforce agreements= with a majority of individual employees. Any derogations should only be available to an employer through a collective agreement with an independent trade union or, where no union was recognised, through an agreement with clearly independent, properly elected workers= representatives.
All those sectors currently excluded from the Working Time Directive (transport, offshore workers and junior doctors) should be covered by regulations appropriate to the needs of each industry or sector which provided protection comparable to the Working Time Directive.
On the issue of breaks during the working day the TUC submission made clear that the break should be for at least 30 minutes away from the work station as opposed to the 20 minutes proposed by the Government. There was no case for implementing the transitional arrangements on holiday entitlements and the right to four weeks= leave should become effective immediately. In addition, the government should introduce legal rights to paid time off on public holidays.
The Government proposed that certain derogations should be available automatically if an employer could show that the workers concerned fell into one of the following specified circumstances:
where the place of work was distant from the worker=s home; or,
where the worker is engaged in security or surveillance activities requiring a permanent presence in the workplace; or,
where the worker=s activities involve the need for continuity of service or production.
The General Council argued where trade unions were recognised these derogations should only be available through a collective agreement.
In line with Composite 5 the TUC submission also argued that the Regulations should include a wide definition of the term >worker= to include all those but the genuinely self-employed who had control over their own working time and working conditions.
At the time of writing the final Regulations had not been laid before Parliament. Once the shape of the law is clear the TUC will produce a guide to the new working time legislation.
1.8 Employment Rights (Dispute Resolution) Act 1998
It was reported to the 1997 Congress that the Government was supporting a private member=s Bill, the Employment Rights (Dispute Resolution) Bill. This Bill changed some industrial tribunal procedures in order to allow tribunals to process claims more quickly and changed the name from >Industrial= to >Employment= tribunals. It also established a voluntary arbitration alternative run by ACAS for unfair dismissal claims and introduced a system of penalties to encourage employees and employers to use internal procedures to resolve disagreements before proceeding to a tribunal. The Bill was introduced in the House of Lords.
The TUC lobbied peers on several issues, including a proposal to extend by Order the arbitration scheme so that it could cover discrimination claims. Sympathetic peers introduced appropriate amendments and in response the Government agreed that any such extension would be subject to affirmative resolution and would only be introduced after extensive consultation. The EOC supported the TUC position and briefed peers accordingly. In line with the composite resolution on employment rights carried at the 1997 Congress, the TUC supported in general the arbitration alternative. The Bill was enacted in April 1998. The TUC is exploring the possibility of running some briefing sessions for union officers on the new arbitration scheme, and the procedural changes, in conjunction with ACAS. The TUC produced a briefing on the Act, which was enclosed with the TUC MAIL and the Employment Tribunals Newsletter. The TUC also circulated a comprehensive briefing provided by the DTI. In July, the North West Region of the TUC organised a briefing conference for union officers on the implications of the Act.
The TUC has continued to produce the Employment Tribunals Newsletter three times a year. It is available on a subscription basis and has proved very popular. The Newsletter provides information on case law developments with a particular relevance to unions, procedural changes, and new employment legislation. The rise in applications to employment tribunals reported to the 1997 Congress has continued. It is partly attributable to the new jurisdictions, particularly the Disability Discrimination Act, but also to continuing bad practice, particularly in small businesses where lack of procedures are commonplace. The waiting times for employment tribunals have improved enormously although this has had its disadvantages, with punitive listing systems and refusals to grant requests for postponements and adjournments.
The TUC has continued to liaise with the TUC representatives on the UsersÕ Groups. In July a meeting was held for them, where common problems were discussed relating to ÔhousekeepingÕ and procedural issues. In the same month, the President of the Employment Tribunals, Judge John Prophet, had a meeting with the General Secretary, at which a number of important issues were discussed, including the handling by tribunals of unfair dismissal claims and the role of trade union representatives.
A round of nominations to Employment Tribunals was to have taken place in 1998. In preparation the TUC invited unions to submit names of those who would be interested in serving as lay members on Employment Tribunals. At a meeting at the DTI, the EOC and the CRE expressed their concern that the sponsor bodies, including the TUC, had not done enough to encourage women and black members to put their names forward. There was also a low number of disabled lay members. Consequently the lay membership of the tribunals was unrepresentative of the working population. In response, the TUC circulated a special briefing to affiliated unions, which explained what the tribunals did and what being a lay member involved. It particularly encouraged women and black members to submit nominations and suggested the sort of relevant experience which should be included on the nomination form, which need not mean formal post holding in unions. As a result, the TUC received 1,960 nominations, of which 41 per cent were from women.
In March, the DTI Minister Ian McCartney announced that the nomination process was to be suspended until 1999, pending a Government review of the nominating process. In discussion with the TUC, the DTI confirmed that they were considering three options: to retain the current system; to open all nominations to the public; or to move to a hybrid system, with a proportion of places nominated by sponsor bodies and the rest open to public appointment. The TUC and other sponsor bodies would be formally consulted during July and an announcement made in the autumn. Whatever system emerges, the TUC will be organising a special briefing session aimed to encourage women, black and disabled union members to put their names forward as lay members.
A resolution of the 1997 Congress called for the repeal of the provisions of the Criminal Justice and Public Order Act 1994 which withdrew the rights of prison officers to take industrial action. In February, the Government announced that no change would be made to the law, contrary to commitments given before the election. The General Secretary addressed a special POA conference on the issue and also met the Home Secretary to press the POA=s case for a restoration of full trade union rights in the Prison Service and an end to privatisation in prisons. The POA engaged subsequently in a series of talks with the Home Secretary and the Prison Service, which are continuing.
1.11 Public Interest Disclosure Bill
In July 1997, Richard Shepherd MP introduced a Private Member=s Bill, the Public Interest Disclosure Bill. The Bill, which affords protection to employees who >blow the whistle= about wrongdoing where they reasonably believe this to be in the public interest, was supported by both sides of industry. The TUC submitted a full response in November, following consultation with affiliated unions, during the Government=s consultation exercise on the Bill. The TUC warmly welcomed the Bill but expressed concerns about two issues in particular. The first of these was compensation. The Bill proposed compensation levels based on those available for the >automatic= categories of unfair dismissal, with an upper limit. The TUC , the CBI and the overwhelming majority of those organisations which responded to the consultation exercise, argued for uncapped compensation. The other concern was that there was no provision for disclosure to a trade union representative. These issues were debated in both Houses of Parliament, following briefings from the TUC.
On compensation, the Government said that the Fairness at Work White Paper proposed a new regime for employment protection awards, including aggravated damages claims for the automatically unfair category of award, and this would cover public interest disclosure. On disclosure to a trade union representative, again the Government said that the proposals in Fairness at Work on representation could cover this and that they would discuss this and other possibilities with the TUC. The Bill was enacted in July, although commencement will not be until December. The TUC will ensure that unions are fully briefed on how to use it and will encourage unions to ensure that public interest disclosure is covered by collective agreements.
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