In introducing the Employment Relations Act 1999 the government promised to review its operation and effectiveness after a period of time. They are now in the process of that review and consulting on their proposals. Here we outline the main conclusions of the review and the likely legislative changes to be announced.
Implications of Wilson and Palmer v United Kingdom
The government has used the opportunity of the review to set out its proposals to amend the law in light of the Wilson and Palmer case in the European Court of Human Rights (see LELR 73).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 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.
The government proposes to delete the existing sections 148(3) of the Act which permit 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". These sections had been introduced by a Tory Minister in the Lords (the so-called "Ullswater amendment") after Mr Wilson's case had succeeded in the Court of Appeal and were retained despite the decision being reversed in the Lords.
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 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 is to be hoped it will 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".
Arguably, the European Court decision requires more than this. It suggests that workers have a right to be represented and that their 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.
Statutory trade union recognition
The other main focus of the review is on the statutory recognition procedures introduced in 1999. The new law was introduced with much fanfare and gloomy prediction of disaster - from both sides of industry. Employers' bodies claimed the law went too far and gave too many rights to trade unions that would be bad for business, Britain and no doubt the universe too. Trade unions argued the opposite. There were also fears that the procedure would be unworkable and the Central Arbitration Committee (the body charged with adjudicating the new rights) would fail to operate the new law effectively - it would be swamped with the flood of applications, or become bogged down in endless judicial review challenges and perhaps lose the confidence of both sides of industry.
The review pronounces that the recognition procedures have been a resounding success. They point to the smooth running of the CAC, the acceptance from both sides of industry of the authority of the CAC judgments and the soundness of the decision making process which has so far succeeded in all but one challenge for judicial review.
It is certainly correct that the statutory recognition process has not generated headline negative publicity for the government and the cases show a pattern of unions succeeding Ð at all levels of the process - in approximately two thirds of the cases brought. It has, in the words of one minister, become an accepted feature of the industrial relations landscape.
The rather obvious conclusion from the government analysis is that it is better not to fix that which ain't broke. Therefore only very minor and mainly technical amendments are proposed that tinker at the margins. No change is suggested to the threshold of support required for a union to gain recognition which remains a majority of the workers who vote and 40% of the bargaining unit. Nor does the government intend to lower or remove the small employer threshold.
Under the proposals unions are likely to gain some access to the workforce before the balloting process, but only by letter through a third party (the Qualified Independent Person appointed by the CAC to run the ballot). The confidential workforce and membership checks conducted by the CAC case managers to assess levels of union support and membership are likely to gain a statutory footing. The government also proposes that collective bargaining on pay should not include pensions. The government seeks views on whether there should be scope to consider associated companies in deciding bargaining unit cases as they are undecided whether this would be desirable or not. There is also a suggestion that the approach the CAC takes to deciding a bargaining unit, if the parties fail to agree between them, is to be tightened.
The TUC argues that the government proposal do not go far enough. The fact that the law has not been a disaster does not make it a success. The law was intended to give rights to trade unions and to assist them in gaining recognition where the workforce supported it. However the number of workers and workplaces who have gained recognition from the new procedure are small. To look only at the outcome of the cases that Unions have brought and their success rate misses the many cases that unions would like to bring but cannot because of the difficulty of achieving the threshold, the complexity of the procedure and the small employer exemption.
Trade union blacklisting and other issues
Regulations are also proposed to implement the anti-union blacklisting provisions in the Employment Relations Act 1999 and various other matters relating to the Certification Officer, and other miscellaneous issues.
The government intends to publish a draft bill on its proposals later this year and we will keep you posted of developments. Meanwhile, a full copy of Thompsons submission to the Employment Relations Act Review can be downloaded from this website as a Word document.