“The central demand – for a restoration of sectoral collective bargaining – ought not to be lost. A second Bill could provide a mechanism for the Secretary of State to establish collective bargaining at sectoral level.”
By James Harrison
It can be counterproductive discussing the crisis of trade unionism, because shrouding what remains a strong, organised and working class movement in pessimism and the language of crisis risks paying a disservice to the hard work and many victories of organisers, shop stewards and workers in transforming their own situations through our movement.
Nonetheless, the continuing impact of Thatcherism on trade-union members must be reckoned with. In 1979, trade union membership stood at about 13.2 million in a workforce of about 24 million. Collective agreements and wages council orders combined are estimated to have covered about 20 million workers – more than four of every five workers in Britain were covered by either a collective agreement or a wages council order.
In the present day, fewer than 1 in 5 workers are in a trade union, and about 1 in 4 are covered by a collective agreement (and even this is likely to be an overestimate). Power in the workplace leans entirely in towards the employer, who more often than not is in a position to unilaterally drive the terms and conditions of employment down with little to no consequence.
On almost every measure of employment protection the UK has fallen significantly behind other countries in the OECD. As these standards have dwindled over the past 40 years, Britain has become the 8th most unequal compared to other major economies in terms of income inequality. In-work poverty, zero-hour contracts, and income inequality have all surged. Despite the anti-growth fearmongering we’ve heard from employer and business lobbyists over the past year, there is growing evidence that a strong union presence, higher wages from strengthened collective bargaining rights and more protective employment rights strengthens the economy and stabilises employment.
On trade union rights, the Employment Rights Bill (ERB) announced a series of changes that were welcome: greater protection for trade unionists taking action, fairer balloting rules, and – importantly – the repeal of the Strikes (MSL) Act as well as most of the Trade Union Act 2016 – two pieces of legislation that made a mockery of the UK’s compliance with ratified international labour standards.
However, we should be wary of seeing this as ‘job done’ on achieving full restoration and promotion of trade union rights in the UK. Anti-union legislation did not begin in 2016, or with the Cameron/Osborne era, but with Thatcher and Major between 1980 and 1993, and this body of anti-union law is still on the statute book, yet to be removed.
Trade union leaders and legal experts have begun considering the need for a second Bill – one that goes beyond individual employment rights and tackles the roots of systemic inequality by restoring collective rights and bringing UK domestic law in line with ratified international labour standards.
Here are some issues that are still on the table in the on-going fight for trade union rights and freedom:
An earlier iteration of the Employment Rights Bill, the New Deal for Working People, made a key commitment to restore multi-employer collective bargaining across each industrial sector. The Bill instead delivered two negotiating bodies in the Adult Social Care Sector and the School Support Staff sector. Neither are to be regarded as conducting collective bargaining, and both are heavily compromised by the government’s power to determine their composition, outcomes, and operations.
That central demand – for a restoration of sectoral collective bargaining – ought not to be lost. A second Bill could provide a mechanism for the Secretary of State to establish collective bargaining at sectoral level. This will be essential to close the pay gap and reduce inequality – but also it will allow trade unions to stand up for workers, not just members.
Discussions of the Rule of Law and international standards might sound like academic issues – but they have a significant impact on the basic rights of trade unions and workers to defend their interests and achieve better working conditions for all.
The UK has ratified a number of international treaties on trade-union rights: ILO Conventions 87 and 98 (on freedom of association), the European Convention on Human Rights, and the European Social Charter to name just three.
Overly restrictive balloting rules extends beyond the 2016 Trade Union Act, and the ban on solidary and sympathy action (amongst the most restrictive in Europe, as well as being in violation of the European Social Charter and ILO standards relating to freedom of association) is equally left unaddressed by the Employment Rights Bill.
Employers have abused the UK’s non-compliance with international standards, as we saw with the P&O Ferries scandal; Amazon’s conduct throughout the GMB’s recognition ballot, and presently in the threatened pay cuts at Birmingham City Council. What workers need is the removal of both the total ban on solidarity action, and the outright prohibition of political strikes.
The ERB framework doesn’t do enough to balance an employer’s ability to refuse access to unions right and fails to deliver a robust enforcement regime where arrangements are flouted. Fundamentally, the Bill creates no enforceable duty to permit access, as there will be no way by which the employer can be compelled to comply with an access agreement ordered by the Central Arbitration Committee (CAC).
A second Bill could instead grant unions right of access to the employer’s’ property subject to short periods of notice – with ability to obtain an injunction to compel employer compliance. Without workplace access union recruitment is at a huge disadvantage, and without effective recruitment there is no workplace power.
These are just some of the many examples of gaps in the amended Employment Rights Bill now before Parliament – a comprehensive list would also include an incomplete ban on zero hours contracts, exemptions in the fire and rehire legislation, the absence of a single status for workers and the statutory probation period for day-one rights. These are all discussed at length on the IER website and in our new six page pamphlet on the ERB, called ‘Finishing the Job’, designed and published for TUC Congress.
- By James Harrison, Director of the Institute of Employment Rights
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