Employment Relations Act Review
Response of Thompsons Solicitors - May 2003
Thompsons is the UK’s most experienced firm of trade union, employment rights and personal injury lawyers. The firm has offices, operating in England, Northern Ireland, Wales and Scotland. On employment and industrial relations issues it acts only for trade unions and their members. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights Unit.
Thompsons has represented unions in a number of applications under the statutory recognition procedure, represented Dave Wilson and the NUJ in the successful case in the European Court of Human Rights and regularly advises and represents unions on industrial action and issues of trade union law.
Whilst Thompsons agrees that certain aspects of the legislation have worked well and have been used to good effect by trade unions and workers, we do not believe that the Act has in all respects “promoted legal certainty”. In some areas we believe that the law is uncertain and/or has not had the intended effect. In other areas we do not believe that the Act promotes fairness or good industrial relations.
Thompsons welcomes the increase in voluntary recognition arrangements. It is important to acknowledge the importance of the legislation in providing the foundation for those voluntary agreements. Most of the employers concerned would not have agreed voluntary recognition had it not been for the availability of a legal route to achieve statutory recognition. Whilst to that extent the Act has promoted voluntary recognition (because employers wish to avoid the statutory alternative) it would be wrong to say that the legislation has changed the overall “climate”. Many employers remain implacably opposed to trade unions and trade union recognition and will try every trick in the book to avoid statutory recognition. The legislation must deal with these “hard cases” so that workers who wish to have the benefits of collective bargaining are able to do so. We comment in more detail on the recognition procedures later in this response.
We have found the CAC to be helpful and responsive. The difficulties we have encountered in recognition cases stem from the limitations of the legislation, rather than the approach of the CAC.
It is right to acknowledge that there have been no significant inter-union disputes. This is a tribute to the TUC and individual unions. This should be reinforced by allowing unions the freedom to refuse membership to those who may be better represented by other unions who have, or are seeking, recognition with a particular employer. Section 174 of TULRCA should be amended to allow this.
It is not correct that “parties have generally accepted the outcome of CAC cases”. Some employers have sought to undermine the outcome by persuading individual workers in the bargaining unit to “opt out” of collective bargaining or by going through the motions of the method of bargaining without engaging in a genuine dialogue. The remedies and enforcement mechanisms in the Act need to be improved to deal with this. This is discussed in more detail later in this response.
As stated above, the increase in voluntary recognition and the success of many applications for statutory recognition is welcome.
Thompsons is aware of cases where employers have sought to undermine statutory recognition.
Some employers have persuaded workers in the bargaining unit to “opt out” of collective bargaining and receive individual pay deals (presumably on the basis that those deals will be more favourable). This behaviour should be explicitly outlawed in order to ensure the efficacy of collective bargaining under the Act and also in order properly to implement the European Court of Human Rights decision in Wilson and Palmer v UK.
Employers have gone through the motions of attending meetings under the method for collective bargaining, but have not engaged in a genuine dialogue or genuine negotiations. There should be a requirement to bargain in good faith, enforceable by the imposition of terms and conditions (an effective remedy under the previous recognition legislation).
21 worker threshold: The small firms threshold is unfair, illogical and unnecessary.
It discriminates against women and black workers, who are present in greater proportion in small employers. This is particularly so as evidence confirms that women’s wages are higher and pay inequality is reduced where trade unions are recognised.
It is illogical because it relates to the overall size of the employer. 20 workers comprising the whole of an employer’s workforce are denied the right to recognition, whereas 10 workers comprising a bargaining unit in an employer with 21 or more workers would be entitled to claim recognition.
There are many sectors where small firms predominate (notably printing) which are largely excluded from the legislation in consequence.
The low level of union membership in small firms is a reflection of the vulnerability of workers in those enterprises and the need for those workers to have proper representation. Employment Tribunal statistics show a disproportionate number of cases from workers whose rights have been infringed by small employers. This reflects the fact that there are often no proper procedures in place nor any means to resolve disputes through discussions with unions. Encouraging union recognition in small employers will encourage the resolution of disputes through dialogue rather than litigation.
10% Membership test/majority likely requirments: Thompsons agrees that the 10% membership test has not presented problems. It is most unlikely a union would present an application where it had less than 10% support.
The “majority likely” test is problematic. It is very difficult accurately to assess at an early stage whether a majority are likely to favour recognition at a later stage. The union will not have had access to the workers at that early stage. The union will not therefore have been able to recruit, nor to canvass openly for expressions in favour of recognition. The union will not know the identity of those in the bargaining unit. Workers will be unwilling to identify themselves as in favour of recognition.
This presents practical problems for the CAC and the parties. The CAC has in some cases been reluctant (or indeed refused) to accept letters or petitions in favour of recognition unless the names are disclosed to the employer. The CAC has not always allowed (or taken into account) evidence of the growth in union membership and successful outcomes in ballots during recognition claims in other similar circumstances. It would appear that a “rule of thumb” has emerged in many CAC cases so that membership and/or petitions combined must exceed (or at least approach) 40% of the bargaining unit before an application is accepted as admissible. This is an unnecessary and unfair hurdle when support will be adjudged at a later stage by membership level or ballot.
There is no evidence that unions would otherwise launch “frivolous” applications with no reasonable prospect of success. Unions have a vested interest in ensuring that only applications with good prospects of success are submitted. Unions do not want to waste resources on hopeless applications, nor do they want to lose recognition applications because of the effect on members and employers: this is an effective self-restraint.
Automatic recognition: Where there is 50% plus membership in the bargaining unit, recognition should be automatic. This demonstrates the necessary basis for recognition. There is no evidence that union members do not favour collective bargaining. A ballot serves to polarise matters and worsen relations at the workplace. It provides employers with an opportunity to pressurise workers to vote against or abstain. We are unaware of any cases where a recognition ballot has improved industrial relations at the workplace. Ballots where there is majority membership are divisive and an unnecessary cost.
40% requirement for recognition: This is indefensible. If a majority of those voting favour recognition, there should be recognition. There is considerable pressure on workers to vote against recognition or not to vote. This provision encourages employers to make it difficult for workers to vote and to put pressure on them not to do so.
There is no equivalent provision in any other ballot or election. Very few elected representatives at national level and hardly any at local level would meet this test. If they are regarded as legitimate representatives of the communities they serve, then the same test should apply to unions seeking recognition: a majority of those voting in the ballot.
A situation where a majority of those voting cast their votes in favour of recognition, yet recognition is denied, is bound to lead to resentment amongst the workforce and a sense of injustice.
The requirement is unnecessary. If there is not sufficient support for recognition in the workplace, there will not be a vote in favour. An additional requirement of a proportion of the bargaining unit overall is superfluous, as shown by the fact that only one ballot where a majority voted in favour has fallen on these grounds – and has done so by 0.9%, a grossly unfair outcome when 62% voted in favour.
Bargaining units: The approach approved by the Court of Appeal in the Kwik-Fit case is correct. It is correct that the CAC should not be called upon to judge the most effective bargaining unit between competing units: it is in no position to do so. An amendment to the legislation on this point is unnecessary. It would not “clarify” the position as the government suggests: it would impose a greater risk of challenge to the CAC and cause further uncertainty and litigation, whereas the position is now clear and has not been challenged.
The “effective management” criterion should be deleted, or at the very least reduced to the same level of importance as the other criteria. The inclusion of this as the primary consideration is unfairly skewed towards the employer. Many employers effectively seek to argue that collective bargaining itself is incompatible with effective management. If compatibility is to be an issue, it should be the compatibility of the unit with effective bargaining, not with effective management.
The desire to avoid “small and fragmented bargaining units” should be expressly limited to the bargaining unit which is sought. No account should be taken of putative bargaining units of others outside the proposed unit who have not (and may never) seek recognition.
The treatment of associated employers is a difficult area. The legislation’s emphasis on single employer bargaining does not reflect the industrial relations reality in many sectors. However, Thompsons would not favour a general extension to allow consideration of associated employers when considering bargaining units and recognition applications. To do so would be to invite employers to argue for impossibly big bargaining units across many companies in order to defeat applications. A compromise may be to allow a union to make simultaneous applications in respect of associated employers and request that they be dealt with together, with the possibility that recognition may then encompass both. An employer would have the opportunity to make representations on this.
The provisions regarding changes to the bargaining unit are complex and unnecessary. They should be deleted. It is sufficient that an employer can apply to de-recognise after three years.
Ballots: Thompsons welcomes the proposal that workers who are unable to attend work on the day of a workplace ballot should be able to vote by post.
The reverse of this is also true: workers who will not have a reasonable opportunity to vote by post should be entitled to vote at their workplace (particularly where their workplace is remote from their home and/or from the employers other work locations).
Voting should be permitted electronically or by fax. Particular difficulties arose recently in a ballot of journalists at a national newspaper. Many of those working as foreign correspondents were effectively denied the opportunity to vote as they did not receive postal ballots in time to return them by post. An application for voting by e-mail or fax was refused, as was an extension of the balloting period. In the event this did not materially affect the outcome of the ballot, but it does highlight a problem which should be addressed by an amendment to the legislation.
Access rights: Access should be permitted at a much earlier stage – when the application has been submitted. The union should be given an opportunity to approach those potentially in favour at the earliest possible stage if the test of “majority likely to favour” is to remain at the admissibility stage. The legislation should prescribe the access arrangements at this early stage and set a timetable for the parties to agree access for the remainder of the process. The access should not be limited to a written or e-mail communication. It is not just a case of providing written information to workers. There should be actual access so that workers’ views can be obtained.
It is anomalous that there is no timetable for the access arrangements to be agreed and no effective mechanism for the CAC to determine or impose access arrangements. This can lead to protracted periods of negotiation and a consequent delay in the appointment of the Qualified Independent Person and the conduct of the ballot.
Definition of collective bargaining: Training and equalities should be included. These are key issues which affect the workforce overall and are not matters best dealt with by individual representation. Discussions need to encompass the needs and concerns of the whole workplace and to balance competing demands. This is best done by collective bargaining. It does not impose an onerous obligation on employers and it ensures that bargaining on other issues (such as pay and hours) takes account of equality considerations (e.g pay inequality; family responsibilities and hours of work; disability and training and hours of work etc). The current situation means that those issues are not included within the framework of statutory collective bargaining, contrary to the government’s assertion.
The decision in the UNIFI/Bank of Nigeria case is excellent, well-reasoned and correct. It accords with the interpretation of “pay” in other areas of employment relations law. It is appropriate that matters relating to the level of employer pension contributions should be included in bargaining on pay, as they are inter-related. The government is wrong to say that as pensions is not included in many voluntary recognition arrangements, it should not be included in the statutory scheme. Even if this is correct, the government’s policy objectives on pensions and the need for a partnership approach mean that the government should be setting the agenda by expressly including pensions rather than allowing an unsatisfactory situation to continue.
Top-up recognition: Thompsons agrees that the legislation should be clarified so that a union may apply for recognition where any one of pay, hours or holidays is not covered by an existing recognition arrangement.
There is a further point. Currently, a union cannot proceed with an application for recognition where a union is recognised for any workers in the proposed bargaining unit: even if it is the same union. This is absurd. Where a union applies for a discrete bargaining unit where there is no current recognition, an employer may defeat the application by successfully arguing for a wider bargaining unit where the same union is already recognised. A union should be able to apply to extend existing recognition to wider groups of workers. This is particularly the case where there has been a transfer of undertaking, where a new business has been developed or acquired or where there are workers of a description not covered by existing recognition.
Membership checks: Thompsons welcomes the proposed requirement on the union and the employer to co-operate with CAC membership checks, provided that the information is provided confidentially and that the CAC takes steps to verify the workforce information provided by the employer. Thompsons also welcomes the statutory basis for ACAS run ballots or checks.
Legal definition of union membership: No further definition is required. Union membership should be defined in accordance with the rules of the union concerned. The level of subscription is irrelevant. If employers maintain that membership levels do not reflect a desire for recognition, this can be dealt with by the CAC in making a decision whether to grant automatic recognition or order a ballot.
Union membership checks after point of acceptance: Thompsons sees no reason for repeated membership checks at the behest of the employer. Where a further check is required by the statutory procedure, the check should be based upon the information at the time, including the up to date information from the employer. However, if the union confirms that the membership information is unchanged, there should be no need for a further check.
Petitions of support: The current arrangements work well and no further guidance is necessary. It is often difficult for unions to assemble petitions, particularly as there is no right of access, and imposing requirements as to the timing or content of petitions would add to the difficulty.
Disclosure of information by the employer to the union: Our experience has been that employers fail or refuse to disclose information of the type described. We agree that employers should be required to disclose at the initial stage number of workers, grade and location within the proposed bargaining unit (and within any contrary unit proposed by the employer). Employers should be required to provide this information on receipt of an application by the union to the CAC.
Timescales: Thompsons has experienced delays in the statutory process, usually caused by the actions of employers. It is often apparent that employers have no real intention to negotiate. The CAC should have discretion to reduce (or remove entirely) the 20 day period for negotiation in a particular case. One area where the lack of a timetable can cause delay is reaching an access agreement. There should be a timetable of 10 working days for this, with the CAC making a decision on access if agreement is not reached in that period. On the overall timescale, it is a concern that 48% of cases take more than 20 weeks to resolve.
Time limits on apllications to the CAC: There is no need for a time limit on applications to the CAC. A time limit of that nature would be inconsistent with the overall framework of the legislation and the policy aim of encouraging voluntary agreements.
Withdrawn applications: Our experience has been that applications may be withdrawn where the bargaining unit differs from that sought by the union, or some other legal issue has been determined adversely to the union. There is no evidence of applications being submitted frivolously and then withdrawn. There is no justification for imposing a penalty. There is, after all, no penalty imposed on an employer who opposes a bargaining unit only for that bargaining unit to be determined to be appropriate or opposes recognition only for recognition to be awarded.
Effective date for an existing collective bargaining agreement: In our view, the only agreements which should be relevant are those entered into before an application for recognition has been submitted to the CAC. This would prevent spoiling or blocking agreements once an application has been submitted.
Treatment of non-independent unions: Agreements with non-independent unions should not prevent another union applying for recognition. Employers should not be able to block recognition by entering into sweetheart arrangements with organisations which do not meet the test of independence. At the extremes, such organisations are established and funded by employers with the avowed intent of keeping out independent trade unions. News International Staff Association is an example of an employer-funded organisation which does not meet the legal test of independence, but whose recognition frustrates the legitimate rights of independent trade unions. Protecting non-independent unions to the exclusion of independent unions is in breach of ILO Conventions.
Three year moratorium: This appears to be widely accepted.
Detriment and dismissal: The current protection and remedies are inadequate. The behaviour of Sky Subscription Services illustrates this. When BECTU applied for recognition, workers were placed under considerable pressure, with threats that workplaces would close or work be moved overseas. An individual right to apply to an Employment Tribunal for compensation is inadequate. Individuals who have faced such intimidation will be too worried to enforce their rights. Financial compensation does not replace a lost job. Threats of this nature have an immediate impact on a recognition application which is not remedied by compensation for the individual. Any financial award should also contain a punitive element.
The union should have the right to apply for a remedy. The remedy should be to declare that the employer has been guilty of an unfair labour practice and to award automatic recognition. This should be in addition to individual remedies.
Change of employer identity: Thompsons welcomes the proposal that, where there has been a change in identity of the employer during the recognition procedure or after a declaration is made, the CAC must treat the new employer as if it were the original employer.
Thompsons urges the government to provide that where there is a TUPE transfer, a union may apply to the CAC to extend an existing recognition agreement where the agreed bargaining unit has been affected by a transfer. This is consistent with encouraging voluntary arrangements and with adapting to changes in business organisation.
Appeals process: The specialist nature of the CAC and the industrial relations basis of its jurisdiction makes an appeals process inappropriate. Appeals would lead to legalism and delay. The limited scope of judicial review is an appropriate mechanism, provided the courts rigorously enforce the requirements that applications for judicial review must be made without delay (not merely within three months).
Amending the statutory procedure: The current position should remain unchanged as changes should not be made hastily and in isolation from the impact on the procedure as a whole.
Enforcement of the bargaining procedure: Thompsons has come across cases of employers “going through the motions” of the bargaining procedure without a genuine engagement in negotiation and employers seeking to undermine recognition by encouraging workers to “opt out” of collective bargaining. The legislation does not provide any remedy to deal with this.
The legislation should include a requirement on the employer to bargain in good faith. A failure to do so should lead to the imposition of terms and conditions, in line with the previous statutory recognition procedure.
Definition of "worker": The current definition of worker is wide, but difficult to define. This is illustrated by the ecision of the CAC in BECTU v BBC (where the BBC has now applied for permission to apply for judicial review). As part of the review of employee/worker status, a wide definition of worker should be adopted for this (and other) representation rights to include casual and freelance workers as well as homeworkers, temporary and agency workers. Seafarers should be specifically included.
Technical changes: the proposed changes seem sensible.
Implications of Wilson and Plamver v United Kingdom
In July 2002, the European Court of Human Rights found that UK law did not adequately protect trade unions and their members against anti-union activities. UK law did not comply with Article 11 of the European Convention of Human Rights on freedom of association, which includes the right to form and join trade unions for the protection of workers’ interests.
UK law allowed employers to offer financial inducements to encourage trade unionists to give up their rights to collective bargaining. This breaches the human rights convention.
The existing law is section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 which is limited in its scope. It currently prohibits subjecting employees to a detriment by any act or omission for the purpose or preventing or deterring him from trade union membership or activities or penalising him for the same reason.
Thompsons welcomes the proposal to delete the “Ullswater amendment” in section 148(3) of the Act which permits employers to take anti-trade union action where their purpose was also to “further a change in his relationship with all or any class of his employees”.
Repealing the Ullswater amendment is welcome and overdue. It does not, however, go far enough. The Court judgment said “it is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate them in their relations with their employers” , that the UK “had failed in its positive obligation to secure the rights under Article 11” and that this failure amounted to a violation of the rights of the employees and their unions.
The government’s response is to propose a new “positive right for members of independent trade unions to use their union’s services”. This will presumably make it clear that it is unlawful to subject an employee to a detriment for being a union member or taking part in activities, but also for taking advantage of union services such as collective bargaining or individual representation. This remedies that part of the House of Lords decision in Wilson and Palmer which undermined the decision in Discount Tobacco v Armitage.
The details of this new right are not yet clear. It would seem it applies to all union members, not merely where their union is recognised by the employer. It should apply to workers not merely employees, but this is not specified. No detail is give on what will be included in the definition of “union services”.
In Thompsons view, the European Court decision requires more than this. The ECHR decided that workers have a right to be represented and that there should be a right to representation on issues at work, enforceable both by the individual member and the trade union. The existing right to be accompanied at disciplinary and grievance hearings does not go far enough to provide this, even after the proposed amendments to “clarify” the role of the accompanying companion.
The government does not propose specific legislation to protect collective bargaining rights. Consequently the government will repeal the defective section 17 of the Employment Relations Act 1999 which enabled regulations on this issue. The section was so mangled by a Conservative amendment that it would have been worse than useless if implemented. It is, however, a cause of concern that the government proposes an amendment to specify that the entering of individualised contracts would not constitute unlawful union discrimination as long as there was no inducement or pre-condition in the contract to relinquish union representation. This is worrying as it could be used to undermine collective bargaining and runs the risk of being interpreted similarly to the pre-existing legislation in a way which may conflict with the European Court’s judgment. The dangers of this type of approach can be seen in the actions of employers who have sought to undermine statutory recognition by persuading workers to “opt out” of the arrangements.
Thompsons believes that the Regulations on “Blacklisting” should be brought into force now. Waiting until there is evidence of employers using such lists is too late: by then the damage will have been done to the workers affected and there will be no sanction for acts committed before the Regulations come into force.
Thompsons has a number of concerns on the proposed Regulations:
- No provision is made for proceedings to be instituted by trade unions (as provided for by s3(3)(d) of ERelAct 99).
- No provision for criminal prosecutions (as provided for by s3(3)(f)).
- The draft Regulations adopt a superficially "even-handed" approach of regulating lists which are pro-trade union as well as those which are anti-union. This leads to unnecessary complication. It would be simpler and preferable to legislate to prevent those which seek to "discriminate" againstt trade unionists as opposed to lists which facilitate trade unionists finding work.
- Regulation 3(5) should also prohibit "referring to or relying upon" such a list.
- Regulation 7(1) should be just an equitable rather than reasonably practicable - it is after all akin to discrimination.
- Regulation 10: there should be a punitive statutory minimum compensation for anti-union contraventions.
Remedies: there should be specific right for trade union to bring proceedings, not an individual.
There is a difficulty with the proposed structure. For Employment Tribunal claims individuals will have to prove that the list has been used etc and that they have suffered a detriment. For a civil claim (Regulation 15) workers would still need to prove "actual or apprehended breach". This may be possible to satisfy if the case concerns compilation, selling etc. However, if an employer has such a list provided by someone else it is not clear whether the worker would need to prove that the employer intended to use the list for the prohibited purpose (which would be difficult to prove). Possession of the list should be enough (apart from unions having lists and employers having lists for the purpose of check-off or supplied in connection with statute, eg industrial action).
Industrial action ballots and notices: Thompsons believes that the law on industrial action should be overhauled to comply with international standards. We will not comment in detail on the government’s refusal to do so, but in this response will comment only on the specific matters considered by the government in the review.
The current requirement to provide information to enable the employer to “make plans” is far more onerous than the previous legislative position. It imposes considerable burdens on unions. It requires them to compile information which is not readily available to them, but is available to employers. The extent of the obligation is unclear. There have been a number of legal cases. Unions do not know what is required of them. Unions can never be sure they have complied. The requirement acts as an incentive to employers to take legal action.
Thompsons welcomes the proposal to change, clarify and limit the obligations on unions.
We agree that it should be sufficient for unions to identify the approximate total number of workers to be balloted/called upon to take action. We believe it should be sufficient for the union to identify the workplaces at which those workers are employed. A requirement to identify “categories” is vague and open-ended and is likely to lead to employers requiring unions to provide detailed information in relation to individual or groups of workers which is information more readily available to the employer than the union.
Information “in the union’s possession” should only be that held on central records at the level at which the union holds membership information (usually nationally).
The reference to “making plans” should be removed entirely. The obligation to inform the employer is directed towards enabling the employer to communicate with those taking part in the ballot or prospective action; not to make plans to combat the action. The continued reference to “making plans”, even in a modified or clarified form, would lead to continued uncertainty and legal challenges.
Small accidental failures: the legislation should be clarified, following theP v NASUWT decision to make clear that small accidental failures at all stages of the process are to be disregarded.
Dismissal of striking workers: The eight week limited period is arbitrary and unfair. It should be unlawful to dismiss workers for taking part in protected industrial action at any time. This is consistent with the government’s obligations in relation to international labour standards.
If any protected period is to remain, days locked out should be excluded from the calculation.
Right to be accompanied: This should be a right to be represented on all issues affecting the workers interests, in line with the judgment of the European Court of Human Rights in the Wilson and Palmer case, which is discussed in more detail earlier in this section.
The representative must be entitled to present the case and question witnesses and also to deal with questions raised at the hearing (without removing the opportunity for direct questions to be asked of the worker).
The current enforcement mechanism contains a potential lacuna. The legislation seems to imply that the section only applies where a reasonable request has been made. This may be interpreted as meaning that the worker does not have a remedy where a hearing goes ahead without the worker being accompanied where the worker does not make a request, either because he was not told the nature of the meeting or was unaware of his right to request to be accompanied. This is ludicrous. A worker should be entitled to a remedy whenever he attends a hearing without being accompanied, unless the employer can prove that he notified the worker of the right to be accompanied and the worker confirms in writing that he does not wish to be accompanied.
The requirement of a reasonable request is unnecessary and is inconsistent with the proposed arrangements under the Employment Act, where there should be a right to be accompanied at every hearing or meeting. The requirement should be removed.
Justification of CAC decisions: the present arrangements should continue.CAC rules and procedures: the present arrangements should continue
Oral hearings: the present arrangements should continue
Changes in panel members: the present arrangements should continue
CAC and ACAS general duties: these should be amended to be brought into line with the duty on the government recognised in the Wilsons and Palmer decision, namely the “positive obligation” on the UK “to secure the enjoyment of the rights under Article 11 of the Convention” (paragraph 48) and “to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers” (paragraph 46).
The general duty of ACAS is set out in section 209 of the Trade Union and Labour Relations (Consolidation) Act 1992. It is “to promote the improvement of industrial relations”.
In previous incarnations, the general duty had included “and in particular to encourage the extension of collective bargaining and the development and, where necessary, reform of collective bargaining machinery” [repealed by the Trade Union Reform and Employment Rights Act 1993] and “in particular by exercising its functions in relation to the settlement of trade disputes” [added by the 1993 Act and repealed by the Employment Relations Act 1999].
A first step towards implementing the changes required by the decision in Wilson and Palmer (at least in part) would be to reinstate a duty to promote collective bargaining. This would contribute towards the obligations place on the UK by Article 11 by promoting a voluntary system of collective bargaining (underpinned by the current statutory arrangements) which provides one route by which workers can be represented by their union for the protection of their interests.
This should be supplemented by reference to the wording of Article 11 and the judgment. The duty should expressly cover promoting representation by trade unions for the protection of the interests of workers.
A possible formulation would be:-
It is the general duty of ACAS to promote the improvement of industrial relations and representation of workers by trade unions for the protection of their interests, in particular by the promotion of collective bargaining.
The CAC does not have a general overarching duty in relation to all its functions set out in the same way.
The CAC’s general duty in relation to statutory recognition is set out in paragraph 171 of Schedule A1 to the 1992 Act. In exercising its functions in a particular case the CAC “must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned”.
Again, it would be preferable if this were amended to refer to a specific duty to promote collective bargaining.
At the very least, the duty should include a specific obligation to “encourage and promote the representation of workers by trade unions for the protection of their interests”
Certification Officer: the CO should have powers to strike out cases which have no reasonable prospect of success (the test of misconceived in Employment Tribunal cases) and to determine cases without a hearing. The extension of jurisdiction to rule book matters has been onerous on the CO and unions. As can be seen from paragraph 4.24 of the Review, only 19% of such applications succeed. This is an enormous waste of resources. Cases should be weeded out without putting the CO or the union to trouble and expense. Costs and expenses should not be reimbursed in cases which are shown to be without foundation. Proceedings before the CO should be taken into account when determining vexatious litigants.
Maximum limit on compensatory awards: This should be removed. The substantial increase in the limit has not led to a significant increase in number of cases, nor a significant increase in the median award. Removing the limit altogether would not, therefore, lead to a significant upsurge in number of cases or levels of awards.
In contrast, retaining the limit means that in the small number of cases where the maximum award would otherwise be exceeded, the unfairly dismissed employees suffer considerable inequity and hardship as their legitimate losses are not properly compensated. The shortfall is often considerable.
The special award for trade union discrimination should be restored. It was removed by stealth. It is an important deterrent and safeguard which should be restored. The award was straightforward. Its reintroduction would not lead to complexity.
Employment outside GB: no change is required
Employment status: urgent action should be taken to extend all workplace legal rights to a wide category of “worker” with a new broad and clear definition: see Thompsons response to the Employment Status Review.
Election of union presidents: The proposed change is welcome and is in line with the original legislation before it was incorrectly transposed in the 1992 Consolidation Act.
Union political funds: Where a union has a political fund, following a ballot, there should be no requirement to hold any further ballot after 10 years or any other period.
Balloting: electronic voting methods should be permitted. This should cover all statutory union ballots and elections, including ballots under the statutory recognition procedure and industrial action ballots.
Other matters:Thompsons do not propose to comment in this response on the other changes required to trade union and collective representation legislation in the UK.
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