Statutory Regulation and Employment Relations

Until 2000, save for a very brief period in the 1970s (discussed below), there was no statutory system of trade union recognition. Trade unions had rights to represent their members only in so far as an employer was prepared to concede it. This notion of an employer veto over rights to representation is very different from that which applies in most of the Member States of the European Union.¹ In these states the legitimacy of trade unions is acknowledged; either because it is enshrined in the state’s constitution or is embedded in primary legislation which recognises trade unions as key social actors and which therefore grants an automatic right to recognition. The idea that an employer in Italy, Germany or France would have the power to veto the rights of trade unions to represent their members in the workplace is unthinkable, and social dialogue is conducted through the recognised social partners — the trade unions and their counterpart employer organisations. In these countries the employer has no say over the right of a union to represent its members and workers more generally. This apparent weakness in the UK model seems to be at odds with the power and the position which trade unions in the UK have traditionally been viewed as exercising; at least until relatively recently a majority of workers were union members or as a minimum worked under terms and conditions that had been negotiated by a trade union with their employer.

The Employment Relations Act (ERA99) included as its main plank a new statutory union recognition scheme, but encompassed other important new entitlements, such as the right to be accompanied at grievance and disciplinary hearings and rights for part-time workers. Union recognition was regarded by the TUC as the ‘jewel in the crown’ at the time though. Other measures such as the National Minimum Wage were hugely important, but union recognition was a new collective right that signalled a political declaration of support for trade union presence in the workplace.

Having examined the background to the design of the 1999 statutory recognition procedure, this chapter analyses its operation over ten years, providing a review of the outcomes of applications to the CAC reported on its website, between June 2000 and March 2012. It is the basis for subsequent consideration of whether and in what circumstances the procedure provides an effective mechanism for workers seeking representation for collective bargaining. The analysis traces the level of applications; rulings on admissibility and the bargaining unit, decisions on whether to order a ballot and the proportions of statutory and semi-voluntary agreements emerging from the process. It also looks at CAC decisions over the method of bargaining following an award of recognition and the utilization of the derecognition provisions in Schedule Al. The chapter assesses how the CAC has used its discretion and starts to examine how far the parties are able to influence this. It concludes by assessing the extent to which the CAC process has had an impact, or ‘shadow effect’ on voluntary recognition claims that do not take the statutory route.

Having illustrated the way employers can intervene in the statutory process to defeat recognition claims, this chapter considers union strategies and behaviour. It explores the extent to which these have been shaped or modified in the light of the statutory procedure and its operation, drawing upon two surveys of unions conducted in 2000 and 2010. In particular this chapter considers how far the decline in applications to the CAC may reflect unions’ increased reluctance to use the procedure and a greater reliance on the voluntary route, and/or their limited capacity to generate new claims. To shed light upon this the chapter focuses upon the factors underpinning workplace mobilisation through seven case studies of union campaigns for recognition, in which ballots were held under the statutory procedure. It looks at the factors that give rise to unionisation, but also that then predict success or failure in ballots through the procedure, and, in the light of the previous chapter, the interaction of employer and union strategies prior to and during the ballot period. It also considers how far union mobilisation at the workplace converges with national union organising strategies and possible tensions between an organic and bureacratic response. The chapter explores how far union organising, in the context of the legislation, has continued to generate voluntary recognition, suggesting that there is reduced evidence of this and pointing to the limits of voluntarism.

The previous two chapters looked at both employer and trade union strategies in relation to the recognition law and raised the question of what might constitute legitimate contestation over employee representation in the workplace. This chapter turns to a key change to the law introduced in 2004 by which certain practices within the procedure can be challenged as unfair. Subsequent to its implementation, the 2010 survey of trade unions found that whilst the overwhelming majority reported that they had encountered employer behaviour which they considered constituted an unfair practice, less than a quarter had submitted a complaint under the legislation. The chapter sets out the background to the call for a change to the law and examines the content of the legislative amendment, noting that either party can commit unfair practices with negative consequences for the offending party. It also considers why unions have made only a small number of claims alleging unfair practices, as well as why none have been upheld.

Chapter 6 concentrated on the law as a mechanism to regulate the workplace relationship; this chapter moves beyond this context to explore the way that the operation of the statutory procedure reflects and/or encourages changes in wider employment relations, notably the increased fragmentation of representation. It confirms that the procedure encourages both employers and unions to define bargaining units in their immediate interests, but highlights that their arguments can be inconsistent and in conflict with their longer-term and wider organisational strategies. In particular the difficulties that unions have in demonstrating majority support in multi-site bargaining units has had the effect of restricting recognition to small and medium-sized employers in single locations. The chapter goes on to propose that this trend, established in the early years of the procedure, has been reinforced by the changed economic and political context for unions. The early sectoral concentration of applications has shifted, with public service unions moving slowly into the arena of statutory recognition. Subsequent CAC data suggests an increasing number of recognition claims based upon bargaining units that had been removed from direct employment by larger organisations and where workers were subsequently employed on contracts outsourced to secondary organisations.

In 1968, when the Donovan Commission presented its report, it made a direct association, which we assert is still relevant today, between the right to freedom of association and trade union recognition. This implies that any system which places limitations on the rights of trade unions to represent their members and to bargain with employers must offend against the fundamental principle of freedom of association, as enshrined in Conventions 89 and 98 of the International Labour Organisation. Donovan was published at a time when voluntarism still represented the dominant mode of industrial relations in the UK, delivering high levels of collective bargaining coverage and an industrial relations system where a majority of those in work could exercise their voice through representative organisations. However, the system that Donovan acclaimed is now fatally damaged. Trade unions represent an increasingly smaller proportion of the workforce and collective bargaining coverage does not even extend to half of all workers.