Chapter 2 - Employment Rights

chapter 2

Employment rights and fairness at work

2.1 Introduction

This Congress year has seen the most significant advances for working people for 20 years in terms of employment legislation. In October the Working Time Regulations were introduced, which gave workers the right to a minimum of three weeks paid annual leave a year, rising to four weeks this November. Working hours were regulated for the first time for many workers, and night workers were given extra protection. In January, the Employment Relations Bill, based on the Fairness at Work White Paper, was published, introducing a new statutory right to union recognition and important new individual and family friendly rights. In April, the National Minimum Wage was introduced for all workers. In addition, the Public Interest Disclosure Act, which came into force in July, gave important protection to whistleblowers.

In furtherance of the composite resolution on employment law, carried at the 1998 Congress, the General Council has campaigned throughout the year to influence the shape of the new legislation and to ensure that unions are fully briefed on the implications of it for their members. Although the new legislation falls short of the demands in the composite resolution in a number of respects, it does nevertheless offer a great opportunity for unions in terms of their influence in the workplace and in terms of organising and recruitment potential.

The process of tracking the Employment Relations Bill through Parliament has been difficult; the original Bill contained a number of 'dummy clauses', which meant that it was heavily amended by the Government in both Houses of Parliament. Despite the Government's assurances that the Bill was a 'done deal', employer lobbying resulted in two amendments which are not helpful to working people and their unions. However, the TUC succeeded in knocking back one potentially unhelpful amendment and achieving a useful one on 'sweetheart' unions. The Bill received Royal Assent on 19 July; details of the timetable for implementation will be available by the autumn. However, it is anticipated that the new statutory recognition scheme will not be available until the summer of 2000.

Much of the Employment Relations Bill will be subject to Regulations and Orders, which will emerge during the course of the next year. The General Council will respond in detail to consultation on all of these and will provide further detailed briefings to unions on each set of Regulations.

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 and have in particular encouraged unions to nominate members to serve on Employment Tribunals as lay members under the new DTI system. Unions have been urged to ensure that they put forward a good number of women, black and disabled members, as members from these groups are under-represented.

The Representation at Work Task Group has continued to advise the General Council, in particular on the Employment Relations Bill.

Box as previous year's style

Representation at Work Task Group

General Council: Bill Morris (Chair), Bill Brett, George Brumwell, Bill Connor, Nigel De Gruchy, Rita Donaghy, Tony Dubbins, John Edmonds, David Evans, Ken Jackson and Roger Lyons.

TUC staff: John Monks, David Lea, Peter Mitchell (until February) and Sarah Veale (from February)

end box

2.2 Employment Relations Bill

After considering responses to the White Paper Fairness at Work, on 18 December the Government announced a number of decisions which would form the basis of the Employment Relations Bill. Most of the Government's decisions were based on proposals made in Fairness at Work. On this basis, the TUC gave a broad welcome to the Bill, which would tilt the balance towards greater fairness in the workplace for the first time in a generation. The Bill provided for a new statutory union recognition scheme; provided better individual protection for workers and provided new 'family friendly' rights (these are reported in Chapter 4). There were, however, three areas where the Bill differed from the White Paper.

The first of these was the right of workers to be represented in disciplinary procedures: the Bill said that the right was to be 'accompanied', which was defined as making an opening statement and then conferring with the member. The White Paper had used the word 'represent', which would have allowed the union to intervene at any time during the proceedings. In addition, the Bill specified that the right only applied where there was a disciplinary or grievance procedure in existence and specified the nature of the disciplinary or grievance matter.

The second related to the statutory recognition procedure, where additional requirements had been inserted into the Bill, for example, the need to demonstrate that in addition to having ten per cent of the bargaining unit as members, the union had to show that it would be likely to win support in a ballot. Another unwelcome new requirement was that the Central Arbitration Committee (CAC), in determining a bargaining unit where there was a dispute between the two parties as to what constituted a bargaining unit , would have to ensure that certain criteria were met, in particular, compatibility with 'effective management'. Where a union met the 50 per cent plus one requirement for automatic recognition, the CAC was given discretion to order a ballot if it felt that this would be in the interest of 'good industrial relations' or if there was some doubt about the nature of union membership, for example, how long the member had been in the union. This had not been indicated in the White Paper.

A further new requirement related to a new section of the Bill, which allowedworkers to apply for de-recognition of a non-independent union, subject to meeting certain requirements. The Bill originally said that an application could only be made after such an agreement had been in place for three years. There was nothing in the drafting to stop an employer from continually renewing such an agreement in order to resist an application for de-recognition. The TUC was successful later in securing an amendment to the Bill on this (reported in succeeding paragraphs).

The third difference was the new protection against unfair dismissal for those taking protected industrial action during the first eight weeks of the action. The original drafting of the Bill did not provide any protection beyond the eight weeks. Again, the TUC was successful later in securing further protection.

The parliamentary process

On publication of the Bill, the TUC provided a briefing for MPs for the second reading of the Bill. The General Council had already agreed on an Action Plan, which would prepare unions to take advantage of the many new rights to be created by the Bill, in particular, concentrating on the organising potential of the new statutory rights to representation and recognition.

The Task Group met the Secretary of State for Trade and Industry in February and raised a number of points, including those indicated above. In response, the Secretary of State emphasised that he wanted to keep channels of communication open between his office and the TUC. He reminded unions that some employers' organisations would be pushing for amendments. The Government regarded the Bill as a 'done deal' and did not want to open the door to any amendments other than on technical points. The Parliamentary Labour Party (PLP) had given the Bill an enthusiastic welcome. The Secretary of State urged the Group to campaign actively to make members aware of the new rights.

The Government would be considering issues relating to the composition of the CAC, including how many members it should have, and whether they should be full time or part time. Appointment of members would be open, in line with the Nolan principles. The social partners would each have to have confidence in all the members of the CAC. The CAC was to be given a very wide discretion which should to a large extent protect it from actions in Court. The Secretary of State would keep its operation under close review.

There would be full consultation on the various Codes of Practice. The Government was taking important powers to review the 40 per cent yes vote requirement and the 20 cut off for automatic recognition, to keep the operation of the CAC under review and also to review the issue of employment status.

There were some clauses in the Bill which were 'dummy clauses'. The purpose of these was to ensure that particular matters were covered, but because of time constraints the civil servants drafting the bill had not yet been able to provide the correct formulation. The Government was determined to give full employment protection to agency workers and urged unions to increase their efforts to recruit agency workers.

At the Minister's request, a meeting was convened for parliamentary and political officers of unions on 10 February 1999. Frank Doran MP, the Minister's ParliamentaryPrivate Secretary, and a senior civil servant from the DTI, addressed the meeting, at which 18 unions were represented. The Minister of State offered the TUC a regular briefing for parliamentary and political officers on Mondays at 7pm while the Bill was in its Commons Committee stage. These were attended by a number of officers from affiliated unions and proved to be a useful means of discussing government amendments as they were tabled.

Government Amendments: House of Commons

A large number of amendments to the Bill were tabled by the Government throughout both the Commons and the Lords stages of the Bill. The 'family friendly' clauses in the Bill completed their Commons Committee stage with one technical amendment on maternity leave being incorporated; the clauses relating to representation at disciplinary and grievance procedures completed their Committee stage with no amendments being incorporated.

A clause relating to unfair dismissal protection for workers taking part in protected industrial action had been replaced by a new schedule, which provided that after the eight week period, in order for a dismissal to be fair, employers must have taken steps to comply with existing procedures for dispute resolution and not have refused offers of conciliation or mediation. This was welcomed by the TUC.

The TUC had challenged Part V of Schedule 1, which dealt with de-recognition of non-independent unions, and had discussions with the Minister about it. There had been a problem in the drafting of this section; those drafting it had not understood that it was not possible simply to reproduce the sections of the Bill which applied to de-recognition of independent unions which had been awarded recognition under the statutory scheme. For this reason, a moratorium was included, which would exclude for three years any de-recognition where a recognition agreement was already in place. The Minister rectified this error at Report stage, and removed the three year moratorium.

A number of technical amendments were tabled by the Government at this stage. One in particular was substantial. This introduced a new section in Schedule 1 which would allow the CAC, when dealing with competing applications in a bargaining unit, to proceed with an application where one of the unions had ten per cent membership but not to proceed with any application if more than one had ten per cent membership.

At Report stage in the House of Commons, further government amendments were introduced. Clauses 4 and 5 on industrial action ballots were deleted and replaced with a new schedule. This retained and improved the wording of the previous clauses, which allowed an extra four weeks for negotiations between ballot result and start of industrial action and protected unions from having to disclose names and addresses. It added new sections which defined overtime and call-out bans as action short of strikes. It added information about unfair dismissal protection to the health warning on ballot papers. It made provisions about balloting seafarers while they are at sea and prevented minor technical breaches from having the effect of making the action unlawful.

An amendment to Schedule 1 excluded workers who are working for associatedcompanies incorporated outside GB unless they are working in GB on the day that the application was made. The same would apply to flagged-out ships and workers not ordinarily resident in the UK. This could be significant in disputes relating to the bargaining unit. An amendment on applications to the CAC, where more than 50 per cent of the bargaining unit were union members, shifted the onus for establishing that more than 50 per cent are members from the union to the CAC.

New paragraphs were introduced, which allow the CAC to refuse 'spoiling' applications from competing unions in situations where the CAC is already processing an application, either for that bargaining unit or for one which is 'substantially the same'; this would not apply, however, when the CAC had not accepted the original application or had not determined the bargaining unit; in such a situation, if the competing union had ten per cent membership, the CAC must cancel the original application and not proceed with either.

Interim relief would be made available where a worker was dismissed because s/he exercised his/her right to accompany, or be accompanied, at a disciplinary or grievance procedure. There was also an amendment to apply the maximum amount on a week's pay for compensation in such claims. This was in line with compensation in other jurisdictions. The cap on compensation for unfair dismissal was removed for public interest disclosure and health and safety dismissals following TUC lobbying. Another amendment stipulated that where the CAC panel was not unanimous on a question, a majority view could decide the issue and where the panel was divided, the Chair could assume the role of an umpire and 'decide the question'.

The clause on employment agencies was replaced by another new schedule. This improved on the previous wording and in particular, gave the DTI inspectorate greater powers to enter and search employers' premises and photocopy documents. Draft Regulations on agencies were published and circulated to unions for comment in June. This is reported in more detail in succeeding paragraphs in this chapter. There were several amendments to Schedule 5, the Certification Officer (CO), redefining his powers in relation to a number of issues. These amendments were requested by the CO and allowed him to impose tougher requirements on unions in terms of timescales for producing documents and also to take into account new union structures.

Scope of Collective Bargaining/ applications to the CAC

In its original drafting, the Bill had said that where an independent union is voluntarily recognised, this would preclude an application for statutory recognition, from this or any other union. In the general context of this Bill, recognition means for pay, hours and holidays. This meant that voluntary recognition for other purposes, for example, matters of discipline, would not prevent applications for statutory recognition. An amendment carried in the House of Lords changed the wording so that where the CAC was satisfied that "there is already in force a collective agreement under which a union is (or unions are) recognised to conduct collective bargaining ..." the application would not be admissible.

This would have meant that a collective agreement could just cover one of these. A union in this position would have had to judge whether it would be better to withdraw from the voluntary recognition agreement and go for the statutory scheme, which would cover pay, hours and holidays, or try to improve on what they havethrough negotiation with the employer. The TUC met the Minister on two occasions and succeeded in persuading him that this amendment would have the unintended effect of excluding unions with weak agreements. A further amendment was tabled in the House of Lords which specified that a union in this situation would not be excluded from applying for statutory recognition.

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Withdrawal of applications

Another important amendment provided that applications may be withdrawn at any time before preparations are made for a ballot. If the withdrawal takes place after the CAC has drawn up a bargaining unit, but before the second set of preliminary tests ( ten per cent membership and likelihood of winning a ballot), the three year moratorium will not apply.

Certificates of independence

A further amendment said that if a union lost its Certificate of Independence after having been recognised under the statutory procedure, it would effectively count from then on as having been voluntarily recognised, with the corollary that it could be voluntarily de-recognised at any time.

Three Year Bar on Repeat Applications

The three year bar was extended to re-applications for de-recognition following an unsuccessful de-recognition application and to applications for recognition following a successful de-recognition application.

Preliminary Tests

In its original draft, the Bill did not specify that the union had to undergo the ten per cent and likely majority support test again where the CAC defined a different bargaining unit. An amendment provided that the test must be re-applied in such a situation. A failure to pass the preliminary tests would not debar the union for three years; however, if the union passed the tests but then failed to get recognition, the bar would apply.

Changing the bargaining unit

A new section of Schedule 1 on recognition allowed an employer or a worker to apply to the CAC, where a union had been given statutory recognition, to request a change in the bargaining unit under certain circumstances, such as a change in the structure of the business. The CAC would be able to make decisions on whether or not an existing bargaining unit had ceased to exist, or had become two or more units, or whether there was a new bargaining unit. It could then apply the same procedures and tests for recognition for each new, or substantially changed bargaining unit.

Ballots

Originally the Bill said that the CAC could decide either to hold a workplace or a postal ballot. An amendment gave the CAC discretion to conduct a mixed workplace and postal ballot, subject to the views of the union and the employer, the location of the workers, the nature of their employment and other matters as the CAC considers appropriate.

Small firms threshold

The Secretary of State had been given powers to amend the threshold wherever it occurs in Schedule 1 and make transitional arrangements to deal with existing applications if the threshold is changed. Following a request from the TUC, the Government made it clear during the first day of the Committee stage of the Bill in the House of Lords that the threshold could come down, as well as up. The Minister confirmed when the TUC met him that the Government had no intention of raising the limit.

De-recognition

A further amendment said that an employer applying for de-recognition must choose one ground on which to make the application, for example, that the union no longer had 50- per -cent-plus-one membership, rather than running several applications simultaneously or consecutively on different grounds.

'Blacklists'

An amendment imposed limits on the penalties which can be imposed in respect of criminal offences created under the new powers. A further amendment applied the prohibition expressly to the dissemination as well as the compilation of lists.

Right to be accompanied

An amendment expressly provided that hearings which could result in the confirmation of a warning issued or some other action taken would be covered by the right; this meant that subsequent appeal hearings would be covered. A further amendment ensured that workers cannot be asked by employers to waive their right to be accompanied, or to accompany another worker. Another amendment stipulated that where a worker chose to be accompanied by a lay representative of his or her union and that person did not work for the same employer, then that representative must have been accredited by his or her union for the purposes of this legislation. Another amendment allowed for the right to be enforced in a situation where there is not a written disciplinary procedure but where one could be said to exist through custom and practice.

Waiver clauses

An amendment expressly covered unfair dismissal for pregnancy or maternity and assertion of statutory rights even where the waiver was signed before the Bill is enacted.

Qualifying period for unfair dismissal

On 1 June, the two year qualifying period for unfair dismissal and for receiving written reasons for dismissal was reduced to one year. The General Council welcomed this as an important step towards achieving Congress policy, which is for employment rights to be available from day one of employment.

Amendments tabled for Lords Report Stage and Final Commons stage:

Industrial action ballots; multi-employer sites

An amendment was carried which simplified the part of the Code which related toballoting on multi-employer sites and removed the current requirement to find a 'common distinguishing factor'; there was also a clarifying amendment on merchant seamen.

Other recognition issues

By its original drafting, a worker's protection against detriment in regard to activities relating to the statutory recognition process was removed if they had breached their contract of employment; that qualification was taken out (although where the worker commits an 'unreasonable act or omission', it remains).

A withdrawal by a union from an application to the CAC must be done either before the CAC issues a declaration of recognition in the case of majority membership OR on the last day of the CAC notification period for a ballot; this clarified a previous amendment on this issue.

An amendment said that where the CAC has defined a bargaining unit, or where the employer/workers have applied to the CAC to re-define the bargaining unit at least three years after recognition (for the reasons specified in the Bill, for example, change of business structure) the CAC is to be given stronger powers to refuse competing applications after one union has already had its application accepted. The CAC is also to be given greater discretion to decide if the bargaining unit applied for by a second union overlaps with the first bargaining unit in terms of membership. Another amendment expanded on the operation of the three year moratorium, where a union had failed to get recognition, particularly where the union may try to re-define the bargaining unit to get round the moratorium. The amendment said that it will not be able to do so. The same applied after a de-recognition.

In situations where there was a non-independent union recognised but it was voluntarily de-recognised by the employer within the last three years, the employer cannot resurrect it in relation to the bargaining unit in question, or a 'substantially similar' one.

Changes affecting the bargaining unit

There were many minor technical amendments in this section, which was already extremely complex. Generally, these simply brought this section into line with the other amended sections. They also allowed for further permutations where business arrangements change (within one company) or two or more companies become one.

De-recognition

A further group of amendments brought this section into line with the other new amendments. The three year moratorium was specified where it had not been before.

De-recognition of non-independent unions

An amendment specified that an application for de-recognition of a sweetheart union will not be acceptable if any of the unions recognised is or are independent. This would prevent an application if one independent union and one or more non-independent unions were recognised. Similarly, if one (or more) of the unions has made an application to the Certification Officer (CO) for a certificate of independence, and the CO is deciding the question, an application for de-recognitioncannot proceed. However, the application to the CO must have been made before the application for de-recognition and the CO must not yet have decided the question. If the CO grants independence, the de-recognition application must fall. If he does not, it can proceed.

If one of the non-independent unions acquires a certificate of independence after an application has been accepted by the CAC but before the ballot result, or if during the notice period of 20 days from when the CAC has agreed that a union is not independent, it subsequently acquires a certificate of independence, the application must fall.

General

In the 'General' section, the Secretary of State was given powers to intervene where there are competing applications to the CAC and it is unclear which was submitted first. It gives him or her new potential powers to intervene in an inter-union dispute on recognition.

'Blacklists'

This clause was amended further and tightened up and the power to regulate extended to cover enforcement of Court remedies. It also now allowed unions to bring claims on behalf of a union member in specified circumstances (the circumstances will be in the Regulations). The protection now covers dismissals where a worker is dismissed because s/he was on a 'blacklist'. The term worker is specified.

Personal Contracts/Collective Terms

As indicated in the White Paper, the Bill included a clause which would protect workers from discrimination on the grounds of 'omission'. This reversed the Wilson/Palmer judgement, which had held that omitting to give improved conditions to those who retained their collective terms was not discrimination. The Bill also included another clause, which provided protection against detriment or dismissal for refusing to sign a personal contract which excluded collective terms. The Government made it clear during the debate on the Bill that many collective agreements were increasingly sophisticated, so that employers who negotiated them would feel no need to negotiate separate terms for individual workers. On the other hand some employers may wish to negotiate separate terms and should be free to do so. The Government had intended to achieve this by Regulation. The Opposition were not prepared to accept this and pushed the matter to a division in the House of Lords.

The Government believed that delaying the Bill was highly undesirable and so reached a compromise with the Opposition. This had the effect of leaving the Clause and Schedule on omission intact but altering the wording in the clause on detriment so that it would allow employers to negotiate separate terms for individual workers, side by side with collective agreements. This clause cannot be commenced until Regulations are laid.

2.3 Fairness at Work Action Plan

The General Council agreed an action plan for ensuring that unions were prepared to take full advantage of the many new organising and recruitment opportunities afforded by the new legislation. This included:

· a series of regional briefings on the Bill;

· campaigns on each major aspect of the Bill; a campaign on the rights of agency workers was organised in April; this is fully reported in Chapter 15;

· leaflets to promote each of the campaigns, particularly aimed at workers who were not members of unions;

· Guides to each part of the Bill; the first of these was a Guide to the Bill, which was revised after Royal Assent to become a Guide to the Act; separate Guides will be produced on all the Regulations, including Parental Leave, Agency Workers and others; a Guide to the Working Time Regulations was also produced (reported fully in succeeding paragraphs);

· a popular TUC guide to your rights at work is under production, in collaboration with a major publisher.

2.4 TUC Assessment of the Employment Relations Bill

When it was published, the TUC welcomed the Bill, recognising that although it fell short of what the TUC had hoped for in some respects, nonetheless it offered new and very important opportunities for the trade union movement. After many years of changes to employment law which were based on hostility towards unions, the attitude of the new Government was clearly much more positive. The Bill provides a new framework of better rights for individual workers, including in the important area of 'family friendly' rights and provides a new statutory right to recognition and to support for union members from their union in the workplace. The legislation will give unions the necessary openings to get into new workplaces and start building a membership base.

The General Council took the view that it would be of the greatest importance to ensure that unions adopted an orderly approach to the new statutory recognition procedure. At the Millennial Challenge Conference (fully reported in Chapter One) it was agreed that the TUC should develop a strategic role in providing guidance to unions on applications to the CAC. The TUC would gather important information about how the CAC was operating and use this information to assist unions in deciding when and whether to apply. A network of key officers in unions should be drawn up - these would have real authority in their own unions - to advise on applications to the CAC and to sort out inter-union problems where possible and to report periodically to the General Council.

In the coming year, the General Council should vigorously implement the Action Plan, to ensure that union officers are fully briefed on the many Codes and Regulations which will be published relating to the Bill. The TUC will consult unions on each of these and organise meetings to discuss them where they are of particular importance. In addition, campaigns will be launched on each major aspect of the Bill, as it is implemented. The campaigns will be based on the 'Know Your New Rights' theme and will be aimed at assisting unions in recruitment activities.

The General Council will continue to campaign on unsatisfactory aspects of the legislation, such as the threshold relating to small businesses, the 40 per cent 'yes'vote threshold and the lack of a proper right to 'represent' members in grievance and disciplinary procedures. The Government is obliged to review these thresholds a year after those aspects of the legislation are implemented. Other aspects of the new legislation will also be closely monitored and where problems arise, the General Council will make the necessary approaches to the Government. The General Council will also be closely involved in monitoring the balance of appointments to the Central Arbitration Committee, to ensure that TUC interests are well represented. The General Council will also be involved in drawing up the rules and procedures for the CAC.

The General Council will also campaign on the important issues which are not covered by the Employment Relations Bill but which formed part of the composite resolution on Fairness at Work carried at the 1998 Congress. In particular, the General Council will campaign for future legislation to promote fair employment standards by renewing the Fair Wages Resolution and repealing Section 17 of the Local Government Act. Employment rights should be available to all workers from day one of their employment and all workers should be entitled to these rights, regardless of whether or not they are defined as 'employees'. The General Council will continue to urge the Government to legislate to regulate zero hours and flexible hours contracts. The General Council will continue to pursue the issue of the 'reasonableness' test in unfair dismissal claims. Workers must have the right to take solidarity action in line with ILO conventions, in particular where employers transfer work in order to circumvent lawful disputes; the General Council will campaign for future legislation on this issue, as well as further simplification of the law on industrial action ballots. Similarly, the law on picketing must be amended to allow workers to allow lawful and effective picketing at the place of work at the time of relevant industrial action.

Other issues for the Task Group

During the year the Task Group also considered the issue of workplace consultation for the purposes of Regulations and decided to approach the Government with a view to achieving a generic structure for all workplace consultation, which would give priority to recognised unions but would also provide a regulated means of consulting the workforce where there was not a recognised union. The Task Group agreed that this would give unions good organising opportunities which would assist in building membership for the purposes of achieving recognition through the new statutory procedure.

2.5 National Minimum Wage

The address by George Bain, Chair of the Low Pay Commission, to the 1998 Congress and the debate that followed underlined the importance of the national minimum wage (NMW) to the trade union movement. A key priority for the General Council has been to prepare for and monitor the introduction of the NMW which became operational on 1 April 1999. The General Council's work has been based on the General Council Statement and Composite 5 passed by the 1998 Congress which welcomed the introduction of the NMW and set out the Congress's priorities for further work.

In September 1998, the DTI published draft national minimum wage regulations. The General Council submitted comments which focused on improvements to ensure that vulnerable workers would be able to enforce their right to the NMW, but weregenerally supportive of the approach taken. The General Council were, therefore, disappointed that the National Minimum Wage Regulations 1999 laid before Parliament in February were weaker than the draft regulations in a number of areas. In particular, the requirement for employers to give workers a statement of their right to the NMW had been removed and au pairs and other `family workers' were to be excluded from NMW entitlement altogether. The General Secretary wrote to Secretary of State for Trade and Industry Stephen Byers expressing the concern of the General Council on these issues.

The General Secretary's letter also expressed concern that the powers of the enforcement officers were ring-fenced, preventing them from accessing PAYE and other information held by their Inland Revenue colleagues. It was argued that this would weaken the effectiveness of the enforcement regime. The General Council have since welcomed an amendment to the Employment Relations Bill which removed this ring-fence.

At their meeting in January, the General Council offered their support for a `Campaign for a Living Wage' demonstration being organised by UNISON on April 10. Affiliated unions were circulated with details of the event which was attended by senior members of the General Council.

In February, a meeting of trade union negotiators took place at Congress House to discuss implementation of the NMW. The opportunities provided by the new rights for trade union organisation and recruitment were discussed, as was the need for a new collective bargaining target to be adopted by the trade union movement. The discussion was reported to the General Council later that month.

A series of regional seminars for union officers on the NMW took place throughout spring 1999. These provided information on the legislation and took forward discussion on the role of trade unions in enforcing the NMW and the opportunities the new rights presented for trade union organisation and recruitment.

The General Council discussed enforcement of the national minimum wage in March, and agreed to monitor the effectiveness of the enforcement regime. In June, the TUC organised a meeting with representatives of the DTI, the Inland Revenue, the Low Pay Unit, the Low Pay Network, the Citizens' Advice Bureaux and the National Union of Students to discuss enforcement of the national minimum wage and in particular how trade unions and others could feed into the enforcement regime. A further meeting is arranged for the autumn, and following this the TUC will organise a briefing for trade unions to discuss how they can feed into the enforcement process.

In July the General Council noted a request for evidence from the Low Pay Commission and agreed the following statement.

General Council Statement on the National Minimum Wage

The 1999 Congress meets for the first time in its history with a national minimum wage protecting the lowest paid in place.

The General Council believe that the introduction of the national minimum wage on 1 April 1999 was an historic milestone in the fight against exploitation and poverty. It is benefiting nearly twomillion working people, and bringing positive benefits to working women, part-time workers, homeworkers, ethnic minority workers and lone parents. Those receiving the national minimum wage have gained an average rise in wages of around 30%.

However, there was widespread disappointment throughout the union movement over the £3.60 adult rate at which the NMW was introduced. The General Council believes that at its current level the NMW does not do enough to tackle in-work poverty.

The doom-mongers` predictions of widespread job losses have proved wrong. Surveys of the impact of the introduction of the national minimum wage all reach the same conclusion: the fallout in terms of employment has been negligible. The General Council believe experience supports the argument that a higher rate could be sustained without significant job losses. The successful introduction of the NMW opens the way for a significant uprating in the near future and regular uprating thereafter.

The General Council welcomed the Government publicity campaign leading up to 1 April, which has been effective in raising public awareness of the national minimum wage. However, a one-off campaign is not enough; ongoing publicity is necessary to ensure that both the low paid and employers are made aware of their entitlements and obligations.

The General Council were, therefore, disappointed that the Low Pay Commission's recommendation for national minimum wage rights to be publicised on payslips was not implemented in the National Minimum Wage Regulations 1999. Information on payslips would have ensured that national minimum wage entitlements became part of general knowledge and, in particular, reached those standing to benefit. It would have increased take-up and thwarted avoidance. The Government needs urgently to address the deficiency in its publicity strategy left by this omission. The extension of the Inland Revenue's powers, confirmed in the Employment Relations Bill, is however a very welcome step forward.

Congress 1998 supported the social partnership model on which the Low Pay Commission (LPC) is based, and the General Council welcomes the role given to the LPC in monitoring the impact and introduction of the national minimum wage. The Low Pay Commission has requested evidence from the TUC for its Report due in December 1999, and the General Council will in due course present their response.

There is widespread disappointment over the Government's establishment of lower rate for younger workers. The Low Pay Commission recommended that workers between 18 and 20 should be paid a Development Rate of £3.20 an hour. The Government went further, lowering the rate to £3.00 an hour and increasing its coverage to those aged 21. The General Council believe that there is no justification for paying someone less on the basis of age; it is discriminatory and undermines the principle of establishing fair rate of pay for a job. A Development Rate clearly linked only to receiving accredited training would support the Government's strategy of promoting a high-skill, high-productivity, high-wage economy for Britain. This will be argued in full in the General Council's submission to the LPC this autumn.

The main challenge now is to secure the uprating of the national minimum wage before time erodes its economic and social value. The General Council have consistently argued that allowing the national minimum wage to `wither on the vine' will jeopardise the gains to individuals and the economy. It is essential to establish an uprating process that is regular, transparent and inclusive in order to minimise economic disruption, enhance protection of the low paid and command support from the social partners.

The General Council calls on the Government to refer uprating of the national minimum wage to the LPC, with their terms of reference to include recommending a figure for a `millennial uprating'. This will need to go beyond the £3.70 figure outlined in the LPC's original report, which was intended as the second stage of implementation of the initial rate. An uprating referral should bemade to the LPC in 2000. Over the longer term there will be a need for the Low Pay Commission to be involved in regular upratings of the NMW.

Implementation of the national minimum wage has benefited from the considerable progress that has been made towards the collective bargaining target of £4.00 an hour adopted by the 1995 Congress. The aim of the target was to tackle low pay as far as possible through negotiation between unions and employers, thus lifting people above the floor of the national minimum wage before its introduction. The success of this strategy is made clear by research that shows the widespread adoption of £4.00 as a `bottom rate' for pay scales. The General Council believe that it is time to revise the collective bargaining target and will produce a statement on this in the autumn.

It is essential that the national minimum wage is rigorously enforced, and that sufficient resources are allocated for this process. The enforcement regime must provide a safe and effective route for workers to uphold their right to be paid national minimum wage rates. If the national minimum wage is to be judged truly successful, enforcement by the 2000 Congress must be near universal.

Trade unions have a vital role to play in the enforcement process. Trade union officers have access to information about local labour markets and can assist vulnerable workers with making national minimum wage claims. In June 1999, the TUC organised a meeting with the DTI, Inland Revenue, Low Pay Unit, Low Pay Network, Citizens' Advice Bureaux and the National Union of Students to discuss the process whereby third parties could contribute information to enforcement officers and a further meeting is arranged for the autumn. The General Council will organise a briefing for trade unions in the autumn to discuss how they can feed into the enforcement process.

The national minimum wage presents a major opportunity for trade union organisation and recruitment. As the Low Pay Commission's Report noted, in April 1997 83% of those earning less than £3.50 an hour were employed in workplaces without union recognition. The message to non-union Britain is clear: higher pay is one of the benefits of union membership. It is up to trade unions and the TUC to put this message across to the parts of the economy where trade union influence has hitherto not reached.

The TUC organised a series of regional seminars for trade union officers on the national minimum wage in spring 1999. These included discussion led by a member of the TUC New Unionism project on the opportunities for trade union organisation and recruitment. The General Council and the New Unionism project will continue to work with unions to put in place strategies for using the national minimum wage to boost organisation and recruitment.

In conclusion, the priority of the General Council is to work for an early uprating of the national minimum wage to ensure the wages of the lowest paid do not become frozen in time. The General Council will also revise the collective bargaining target for trade unions and produce a statement on this in the autumn. The General Council will monitor the enforcement regime, with the aim of ensuring near universal compliance by the 2000 Congress.

2.6 Working Time Regulations

The General Council have continued to develop their thinking on working time in line with Composite 3 of the 1998 Congress. As reported last year, the Government consulted on draft regulations to implement the EU Working Time Directive in May 1998. Final Regulations were presented to Parliament in July and came into operation on 1 October 1998. In line with the Directive, the Regulations introduced the following rights for all workers in the UK:

· a 20 minute break where the working day is longer than six hours;

· 11 hours rest every working day and 24 hours rest once every seven days;

· a ceiling of eight hours on average hours worked at night;

· the right to a health assessment for night workers;

· a ceiling of 48 hours on the average maximum working week; and,

· three weeks paid leave (rising to four weeks from November 1999).

The General Council welcomed the implementation of the Regulations as another important step in establishing minimum standards in the labour market. However, they also noted that the Regulations were very complicated and that a close watch would need to be kept on employers' behaviour to minimise the scope for abuse. It was particularly worrying that the Government had legislated to allow workers to continue to work more than an average of 48 hours a week and there was a risk that the long hours culture would continue. This issue was raised with ministers on several occasions during the year.

In September the General Council endorsed a TUC Guide to the Regulations which was then made available to all affiliates. This programme of information and briefing was taken forward through a programme of regional seminars held throughout the Spring.

A meeting for negotiators took place at Congress House in February at which participants were invited to share their experiences of dealing with the implementation of the regulations. This discussion was reported to the General Council later that month. Some consideration was given to whether, in addition to lobbying for the removal of the individual opt-out from the 48 hour week, unions might negotiate a progressive reduction in hours so that no trade union member would be working an average of more than 48 hours by 2003. This date was chosen because the European Commission are scheduled to review the operation of the opt-out at that time and it would add weight to the case for the removal of the opt-out if it was clear that progress had been made through collective bargaining. The General Council agreed that further consultation with unions was essential before this approach could be implemented and it would be appropriate to return to the issue at a later date.

In June the Department of Trade and Industry consulted the TUC on draft guidance to supplement that which had already been issued. Although the General Council responded, it became clear in July that the Government were also planning substantive amendments to the 1998 Regulations. Two changes were proposed. First, the so-called 'unmeasured working time' derogation would be extended to include those workers whose working time was partially unmeasured. In other words, additional hours beyond those specified in a worker's contract of employment which were unmeasured and under the worker's own control would not count towards the 48 hour limit. Second, the additional record keeping requirements which applied where employers had agreed that workers could go beyond the 48 hour limit were to be removed. Details of these changes were received by the TUC on 7 July and the DTI sought responses by 21 July.

The General Council asked for a much longer period of consultation so that all unions would have a chance to contribute to the TUC's submission. It was also made clear that the TUC would judge the proposed changes by applying the following two tests:

· will the changes make it more difficult to halt and reverse the trend towards longer working hours in the UK?; and

· will the changes mean that employers find it easier to avoid their obligations under the Regulations?

The General Council will return to the issue in September and a full response will besubmitted to the DTI immediately afterwards.

2.7 Transfer of Undertakings (Protection of Employment) Regulations 1981

As reported to the 1998 Congress the EU Acquired Rights Directive was revised in June 1998. Three significant changes were made to the Directive:

· the amendment of the definition of a transfer;

· a variation in the application of the Directive in insolvency situations; and,

· the possibility for member states to extend the protection of the Directive to include occupational pensions.

The Directive is given effect in the UK through the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE). The principal effect of the Directive and the Regulations is to ensure that employees' terms and conditions are protected when the business in which they work is transferred from one employer to another. Terms and conditions of employment remain the same and there is no break in continuity of employment. All acquired rights are therefore retained by the workers affected. In addition, where a transfer is planned employers are obliged to inform and consult recognised trade unions with a view to reaching an agreement on how the affected workers should be treated.

In January the General Council agreed to establish a small working group to take forward the work on TUPE in line with Resolution 58 of the 1998 Congress. Membership of the group is set out in the box below. Issues related to the application of TUPE to pensions have been handled through the TUC Pensions Specialists Group.

(Open box)

TUPE Revision Working Group - Membership

David Coats (TUC staff) Chair

John Clinch (UNISON)

Charles Cochrane (PCS)

Andy Freer (GMB)

Mary Howard (NASUWT)

Julian Richards (AEEU)

Linda Sohawon (MSF)

Fergus Whitty (T&G)

(end box)

The Government announced that they planned to revise the Regulations to take account of the changes to the Directive. Over the course of the year the Working Group has had a series of informal meetings with officials from the Department of Trade and Industry to ensure that the Government is clear about the concerns of the trade union movement. These discussions have focused on the following issues:

· the definition of a transfer and the scope of the regulations;

· the application of the regulations in insolvency situations;

· the scope for dismissals for economic, technical or organisational reasons and for changes to contracts of employment; and

· interim relief.

In March the General Council considered some proposed amendments that had been prepared by the Working Group. It was agreed that these drafting changes should be passed to the DTI for their consideration.

Subsequent discussions revealed that the DTI plan to publish a full consultation document in the autumn. A comprehensive TUC response will be considered by the General Council in due course following a preliminary consideration of the issues by the Working Group.

The Government made two significant announcements during the year which clarified the application of TUPE to public sector transfers. In June, HM Treasury published guidance on the treatment of staff pensions in Private Finance Initiative and Public Private Partnership arrangements. This made clear that private contractors would be required to provide a 'broadly comparable pension' for all public sector workers transferring to the private sector. In addition, the same principle would apply to second and third generation contracting so that bidders could not simply reduce their contract price by offering less generous pension benefits. The Guidance made clear that it would be necessary for the contracting authorities to have all pension elements of the PFI/PPP deal in place, following full consultation with trade unions, before the deal could finally be closed. This process would be subject to ministerial supervision. These changes were consistent with the requirements set out in Composite 10 of the 1998 Congress and proved that the general Council were enjoying some success in influencing Government policy.

In July, after informal consultation with the TUC and unions, the Cabinet Office published a consultation document on a new code of practice for handling staff transfers in the public sector. This had a much wider focus than the guidance on PFI and applied to all forms of contracting out. The consultation document made clear that the Government believed that there had to be a clear and consistent application of TUPE. It also noted that substantive proposals to revise the Regulations would appear in the near future. The document set out the following points as fundamental to the government's approach to the application of TUPE in the public sector:

· all contracting exercises should be conducted on the basis that staff will transfer and TUPE will apply;

· this includes second and subsequent round contracts;

· in cases of administrative reorganisation where, strictly speaking, TUPE does not apply, it will be assumed that TUPE does apply; and

· there should be appropriate steps taken to protect occupational pensions, redundancy and severance terms.

The General Council welcomed the publication of the document and will be consulting unions before submitting a response to the Cabinet Office.

2.8 Employment Tribunals