2007 Annual Survey of violations of trade union rights - United Kingdom
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - United Kingdom, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca0432.html [accessed 25 October 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Collective bargaining came under attack at the Wal-Mart-owned supermarket chain ASDA which offered financial incentives to workers to renounce their rights, and at a packaging company which dismissed workers for refusing to sign individual contracts. The number of new union recognition agreements fell and sympathy strikes were still against the law.
Trade union rights in law
Freedom of Association: The Trade Union and Labour Relations Consolidation Act (TULR(C)A 1992) sets out most trade union rights, including the right of workers to form and join trade unions of their choice. The Employment Relations Act (ERA) 1999 also contains provisions governing trade union rights. In 2004, a further Employment Relations Act was introduced which, strengthened existing legislation and created new protections.
Statutory recognition: Employers with 21 or more employees must recognise unions that can prove that a majority of employees want a union to represent them. A trade union may apply to the Central Arbitration Committee (CAC), a statutory body, for formal recognition, and the CAC has the power to compel an employer to recognise a union for the purposes of collective bargaining. Support for recognition must be shown either by majority membership, or via a workforce ballot, in which 40 per cent of those eligible to vote must vote in favour. A union has to show at least 10 per cent membership in the bargaining unit to trigger a ballot. Collective agreements are voluntary agreements, and are not legally binding. Trade unions have traditionally supported the voluntary approach.
The ERA 2004 protects workers against being offered incentives by their employer not to be a member of a trade union, not to take part in the activities of or make use of the services of their union, and not to give up having their terms and conditions of employment determined by a collective agreement negotiated by their union. Workers are also protected against dismissal or other forms of reprisal for making use of the services of their trade union. These rights were effectively used in a case involving the retailer ASDA, which in 2005 sought to induce workers to opt out of collective bargaining arrangements. In early 2006 the court required the employer to pay Â£850,000 in compensation. The Act strengthens the role of unions in grievance and disciplinary hearings by giving the workers the right not only to be accompanied, but also for the union representative to speak on the worker's behalf, a point which had been unclear under the ERA 1999. This rule applies even if there is no trade union at the company where the employees work (a provision already contained in the old Act).
Lack of protection for employees of small firms: Companies employing fewer than 21 workers are excluded from the statutory recognition provisions of the ERA.
Information and consultation rights: The 2004 ERA empowers the government to make Regulations to implement the European Union's Information and Consultation Directive. Employees will have the right to be informed and consulted about all decisions affecting their employment, failing which employers will face fines of up to Â£75,000.
Strikes allowed – with limitations: Strikes must be confined to workers and their own employers, the dispute must be wholly or mainly about employment related matters, and the decision must be based on a secret ballot of the workers concerned. If striking workers are dismissed within 12 weeks of taking part in a legal strike, they can claim unfair dismissal. In most instances, after the end of a 12 week or longer period, where there has been a lock out, employees can be fired legally for participating in lawful strike action. However, the ERA 2004 places increased duties on employers to try to resolve the dispute, through conciliation. Failure to do so can mean that dismissals after the protected period are unlawful.
Secondary picketing and sympathy strikes still outlawed: Secondary picketing was prohibited by the 1990 Employment Act, and there is no immunity from civil liability for workers taking part in sympathy strikes.
Insolvency laws: Under current insolvency law, unscrupulous businessmen can sack workers, declare their companies bust, buy up the assets and then restart trading without having to pay the sacked workers a penny.
Trade Union Freedom Bill – greater protection of right to strike: Further to a resolution adopted at its 2005 Congress, the national trade union centre, the Trades Union Congress (TUC) is seeking the adoption of a Trade Union Freedom Bill. The proposals in the bill include improved protection from dismissal for workers taking part in industrial action, simplification of the complex regulations governing strike ballots and notices, strengthening the bar on the use of agency workers to replace striking workers, revising the law on industrial action injunctions and modernisation of the definition of an industrial dispute. The TUC notes that despite important changes in industrial relations law since 1997, UK trade unions members have fewer rights to take industrial action than in 1906 when the current system was introduced.
Trade union rights in practice
The most outstanding feature of the statutory trade union recognition scheme has been a significant increase in voluntary agreements, although even today only about one third of the workforce are covered by collective agreements, about half the European average.
Anti-union tactics: The report, "Modern Rights for Modern Workplaces", released by the TUC in September 2002, details a number of tactics used by hostile employers during a recognition claim, which includes "setting up an in-house staff association, placing workers under surveillance as they walk past union organisers outside the workplace, issuing threats that they will close or re-locate the business rather than face recognition, packing the bargaining unit with new temporary employees before the ballot, packing union access meetings with management personnel, giving workers the option of going home early when there is a union meeting organised, dismissing activists or declaring their jobs to be redundant, intimidating workers on a one to one basis and 'encouraging' workers to sign personal contracts before or after recognition."
The TUC also published a survey on employer responses to union organising in November 2003. A small minority of employers have used US consultants to successfully resist unionisation. Employers wishing to resist unionisation adopt a number of tactics, ranging from victimisation and dismissal of union activists, denying access to the workplace, discouraging membership and circulating anti-union literature, through to increasing pay and setting up new consultative mechanisms. As a result of TUC campaigning, new laws prohibiting the use of unfair practices by employers or unions came into effect in 2005. There were renewed examples of such practices in 2006 however (see Violations below).
Employer resistance to union recognition: A study published in April 2006 by the TUC and the Labour Research Department shows that it has become increasingly difficult for unions to secure recognition from employers. From November 2004 to October 2005 there was a significant fall in the number of trade union recognition agreements, to 61 new deals covering 12,000 employees over the 12-month period, compared to 179 deals covering 20,000 workers the previous year. The study also shows that unions were fighting hard for recognition, with the number of campaigns for recognition agreements rising sharply.
Sympathy strikes: The legal ban on secondary picket and sympathy strikes is enforced, as two British Airways employees found to their cost. They were dismissed for gross misconduct after going on strike in 2005 on support of workers sacked during a dispute with the airline's catering company Gate Gourmet. A third BA employee was given a final written warning, suspended for one month and deprived of staff air travel privileges. Although these dismissals may have been lawful under UK laws, they were in breach in international standards.
Violations in 2006
Financial incentives to give up collective bargaining rights: In February 2006 the supermarket chain ASDA, owned by the notoriously anti-union US multinational Wal-Mart, was found guilty by an employment tribunal of offering financial incentives to employees to give up their right to collective bargaining. A collective agreement covering workers at the ASDA depot in Washington, Tyne and Wear was signed between the employer and their union, GMB, the general workers' union federation, in 2004. In January 2005 the company offered workers a pay rise of 10 per cent if they agreed to give up their union membership (and hence their collective bargaining rights). ASDA was ordered to pay 2,500 pounds compensation to each of the 340 workers concerned. In its judgement, the employment tribunal described the literature used by ASDA to persuade workers to leave the union as "very hostile to trade unions and highly disparaging of the process of collective bargaining". The materials were produced by the public relations company Portland PR, hired by ASDA to run what the GMB described as a union-busting campaign.
ASDA reneges on collective agreement: In April 2006 the GMB reached an agreement with ASDA covering full union recognition, bargaining rights and access for the union at all its distribution depots, and union access in its 302 stores. The GMB already had collective bargaining rights in nine of the 20 depots. The supermarket chain later claimed however that the deal was to set up a national negotiating committee for all the depots, but that it did not go so far as to extend collective bargaining to all 20 sites. Union sources believed that ASDA had come under pressure from parent company Wal-Mart to renege on the agreement. The GMB subsequently balloted for industrial action and the dispute was settled leading to the establishment of a national framework for collective bargaining and a rolling out of local collective bargaining where a majority of employees call for it in a ballot.
Unionists dismissed in attack on collective bargaining rights: Ten members of the manufacturing workers' union AMICUS were sacked by the packaging company Chesapeake for refusing to sign individual contracts. When the company proposed to end the collective agreement by moving all staff to individual contracts, the union's members overwhelming rejected the proposal. The company then by-passed the staff bargaining unit and intimidated staff into signing individual agreements. Those who refused to sign by the deadline set by the company were sacked. In December workers at the company's Bradford and Newcastle sites voted to go on strike in response to the sackings.