Recognition laws – lessons from abroad
need to be heard at work?
Brian Bercusson is Professor of European Law at the University of Manchester and External Professor at the European Institute in Florence. He is an Executive Committee member of the Institute of Employment Rights
Mike Clancy has been a National Officer in the EMA since November 1996 having been an Officer since 1989. He has a degree in law, a professional qualification in Personnel Management and an MA in industrial relations. He is an Executive Committee member of the Institute of Employment Rights
Keith Ewing is Professor of Public Law at King’s College London. He is an Executive Committee member of the Institute of Employment Rights and edited the Institute’s report Working Life: a new perspective on labour law
John Foster was elected General Secretary of the National Union of Journalists in 1992. At age 60, he has been active in the trade union movement for more than 30 years and has been a trade union official since 1976. He has been the secretary to the Press for Union Rights Campaign since its inception in 1989. He is an Executive Committee member of the Institute of Employment Rights
Sandy Fredman is a Reader in Law in Exeter College, University of Oxford. She is a member of the Publications Sub Committee of the Institute of Employment Rights
Aileen McColgan is a Lecturer in Law at King’s College London. Her interests lie in labour law and in aspects of public law relating to the position of women. She has written widely on these issues and, in particular, on the law relating to women at work. She is an Executive Committee member of the Institute of Employment Rights
Rod Robertson is the National Development Officer at UNISON. He is an Executive Committee member of the Institute of Employment Rights
Dr Stephen Wood is a Reader of Industrial Relations at the London School of Economics and an Editor and Reviews Editor of the British Journal of Industrial Relations
CHAPTER ONE
contents chapter one: introduction
3
chapter two: the ILO and the Council of Europe
5
ILO
5
Council of Europe
7
conclusion
8
chapter three: employee representation in European law trade unions and the legislative process
10
consultation on business restructuring
11
European works councils
11
trade union rights in European law
12
chapter four: the British experience 1971-1980
14
the right to organise and trade union recognition
14
trade union recognition legislation: 1971 and 1975
15
lessons from the 1970s
17
conclusion
18
chapter five: collective bargaining law and practice in Europe
20
Italy
20
Germany
22
Sweden
25
conclusion
27
chapter six: recognition procedures in the United States
29
recognition and the bargaining unit
29
collective bargaining and collective agreements
30
enforcement and remedies
31
defects and flaws in the US model
31
a model for reform?
33
chapter seven: learning from the United States
2
10
35
determining the bargaining unit
35
assessing employee support
36
‘minority’ unionism
37
a supervisory agency
38
sanctions for failure to negotiate with a union
40
conclusion
41
chapter eight: conclusion
42
recent publications from the Institute of Employment Rights
44
CHAPTER ONE
introduction 1.1 The new government is committed to introducing legislation on trade union recognition, with a White Paper on the question promised for the first half of 1998. Quite what the government will propose is at this stage unclear, though a number of key features have already been suggested in pre-election undertakings. In the Road to the Manifesto, for example, it was proposed that employers should be under a ‘legal obligation’ to recognise a trade union ‘where a majority of the relevant workforce vote to be represented by a trade union’. But the obligation would relate only to ‘pay, hours and holidays, and training’, with any extension of ‘the bargaining agenda’ to be by ‘mutual agreement’. This commitment was repeated by the Prime Minister during the election in a newspaper article in which it was also made clear that by these proposals the government had rejected TUC proposals for wider rights of representation. 1.2 In this paper we consider the question of trade union recognition by reference to international standards, the practice of other countries, and our own experience of such legislation in the 1970s. Much of the debate has been dominated by the American approach to this question which in principle the government’s proposals appear loosely to resemble. Indeed in the early weeks of the general election campaign senior members of the Labour Party sought to justify their proposals expressly by reference to the United States and suggested filling gaps in the detail of their proposal by adopting what was understood to be the American practice. The reference to foreign systems in this way begs many questions. The first is why should this model be adopted in preference to others? This in turn invites us to consider how different countries deal with the question of trade union recognition, collective bargaining and workplace representation. It soon becomes clear that although the US model has been adopted in Canada, it is unknown throughout the European Union.
1: AFL-CIO, Organising for Change. Report from the AFL-
1.3 So how do European systems deal with these questions, and why are they not the focus of our attention rather than that of the United States? But having chosen to follow this particular route to recognition, no doubt after the most careful and informed consideration, it is important to understand the type of problems which are likely to arise in practice from the operation of legislation of this kind. This is particularly true in this area given that the United States has a system of labor law which is perhaps the least effective in the developed world, and which as a result has been the most heavily criticised, including by those who are governed by it. Indeed only 11% of workers in the private sector are covered by collective agreements in the United States, with the AFLCIO lamenting the accelerating decline in union membership1. This is by some way the lowest level of coverage in the developed world, and more significantly it is considerably lower than the levels of coverage in the United Kingdom even after 18 years of deregulation as a result of which there is currently no legal support for collective bargaining.
CIO Elected Leader Task Force on Organising (1996)
1.4 There are thus serious questions to be asked about the efficacy of trade union 3
recognition legislation and about just what it can be expected to achieve. Is the legislation itself a barrier to trade union organisation, as some US commentators claim? Or does the problem lie with the drafting, content and administration of the US statute, as others claim? It is to be presumed that the government has not chosen this particular route to trade union recognition because it is likely to be ineffective. That being the case, it is not only important to assess the legislation to identify its flaws, but equally important, to be prepared to address these flaws by steps which will ensure that they are not tailored into any legislation which may be introduced here. Some of the issues are fundamental to the integrity and efficacy of the legislation. Thus how should majority support be determined? Should it be necessary for a ballot to be held in every case and if so how should the ballot be conducted? What rights of representation should workers have where their union does not enjoy majority support? Are they to be wholly unrepresented by a trade union in the workplace? And how should the legislation be enforced? 1.5 There are then three simple questions which we address in this paper: I How is the question of trade union recognition, collective bargaining and workplace representation addressed in other countries? For this purpose we examine the position in three European systems as well as in the USA and Canada. I Given the apparent preference for a model based to some extent on the North American, what are the problems associated with this model and what difficulties are likely to be encountered by its introduction here? I In light of the problems which have been identified with the US system in particular, what initiatives would it be necessary to take by Parliament in this country, either to remove or minimise any anticipated problem?
But before moving directly to address these questions it is necessary first to examine the international context within which domestic law operates and to which it must respond.
4
WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy, Sir Peter Pain, and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 160 Falcon Road, London SW11 2LN, 0171 738 9511.
£8 TRADE UNIONS AND STUDENTS £25 OTHERS