The number of days lost through industrial action is rising rapidly. Last year, up to November, a total of 1.3 million days were lost. This represents levels not seen since before the election of the Labour government. While this is not a return to the 'winter of discontent' – an annual average of 11.6 million days were lost in the 1975-9 period – it is a striking upward move.
The obvious question is, what has caused this upsurge in industrial action? There is no simple answer. There are a considerable number of factors involved, including the rise to power of a new generation of more radical union leaders, an increasing pay divide between the public and private sector, decreasing job security in the public sector – caused in part by the rise of PFI – and disillusionment with a Labour Government seemingly in thrall to the voters of Middle England.
The 2002 figures may be no more than a statistical blip caused by the fire fighters and tube drivers strikes, and may not indicate a wider trend. Only time will tell.
Of course, there is also a legal element to this apparent resurgence of trade unionism, with recent changes to trade union (TU) law, as well as some forthcoming legal developments.
The most important right of any TU, in fact their raison d'être, is the ability to negotiate terms and conditions of employment with employers on behalf of their members. To have this ability, the TU has to be recognised by the employer. During the last Conservative era, the emphasis was on union de-recognition and individual rather than collective bargaining. The unions were virtually powerless to prevent de-recognition and there was certainly no 'right to be recognised'.
This position changed significantly as a result of the Employment Relations Act 1999 (ERA 1999) which came into effect in June 2000. ERA 1999 introduced a statutory procedure now known as Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA). This requires employers to respond to TU requests for recognition and, in the event that voluntary recognition cannot be agreed, may lead to compulsory recognition being ordered by the Central Arbitration Committee (CAC).
Although the number of unions being granted recognition by the CAC is by no means huge – 20 in the 2001/2002 CAC Annual Report – this belies the fact that the introduction of the procedure has undoubtedly changed the balance of power in negotiations, as evidenced by the fact that in 2001 there were 450 voluntary recognition agreements compared with 159 in 2000.
Compulsory recognition is therefore a huge potential recruitment tool for TUs as, for the first time, unions can say to employees, “if enough of you join us then we have the legal right to force your employer to deal with us”. While the membership figures do not show a dramatic leap since 2000, the rate of decline has slowed and, as the Trades Union Congress points out, the period since 2000 has seen a large number of redundancies in the manufacturing sector, which would impact on membership. As and when the economy picks up, it seems quite feasible that TU membership will rise.
Once a TU is recognised in a workplace, in addition to negotiating terms and conditions of employment, the TU becomes the body with whom the employer must inform and consult in specified circumstances. These are in the event of collective redundancies – 20 or more redundancies within a period of 90 days – under section 188 TULRA, and in the event of a sale of the business that falls under the Transfer of Undertakings (Protection of Employment) Regulations 1981.
In addition, under the forthcoming Information and Consultation Directive (Icon) it is likely that the scope of consultation will be widened to include more day-to-day issues affecting the running of the business, and it is probable that recognised unions will become the body with whom such information and consultation must take place.
Depending on the ultimate breadth of Icon, which is subject to much political debate at a European level, it is conceivable that employers will find themselves having to inform TU representatives about business issues on a regular basis. This will raise the profile of TUs in the workplace and increase the benefits to them of obtaining recognition that, in turn, will probably lead to membership drives and more claims for recognition.
ERA 1999 made a number of other changes to TU law, which either increased the usefulness of unions to members or relaxed some of the curbs on unions introduced by the Conservatives. The most important of these are: protection from unfair dismissal for employees taking part in the first eight weeks of lawful industrial action (Section 238A of TULRA introduced by Section 16 of ERA 1999); the lengthening of the period of effectiveness of strike ballots of up to eight weeks before a strike is called or a further ballot required (Section 234 TULRA) and the disregarding of accidental failures in the balloting process, which will not therefore invalidate the ballot (Section 232B TULRA); the prohibition of employers from subjecting employees to “any detriment” on the grounds of their TU activities (Section 146 TULRA); and the right of employees, whether they are union members or not, to be accompanied by a TU representative (whether or not the union is recognised by the employer) at disciplinary or grievance hearings.
Of course, none of these legal changes have led directly to the recent increase in industrial action, which must be caused by the wider political or socio-economic context, but taken together they do increase the importance of TUs in the workplace, increase the protection of union members and ease some of the pre-industrial action formalities. These facts, plus the jostling between the new breed of union leaders and the Labour Party, along with the next general election already appearing on the radar screens, mean an interesting time on the industrial relations front.
Paul White is an employment, pensions and benefits senior associate at Stephenson Harwood
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