John Hendy QC and Maria Exall of the CWU Executive debate the merits of the Labour government's Employment Relations Bill. Both are leading activists in the United Campaign to Repeal the Anti-Union Laws
By John Hendy QC
The Bill, is not really like the curate's egg, part good and part bad. This egg is nearly all good. The bad things are what's not in it.
Good: right to maternity leave after one year instead of two. Maternity leave extended to 18 weeks. Parental leave, adoption leave, leave for family emergencies. Part timers to get equal rights with full timers.
Good: unfair dismissal after one year, not two. Dubious: sackings after 51 weeks instead of 103? Bad: what happened to the commitment to employment rights from Day One?
Good: maximum unfair dismissal compensation raised to £50,000 and index linked. Bad: Government abandonment of commitment to full compensation.
Good: blacklisting of trade unionists to be dealt with. Dubious: by Regulations which the Government 'may' make.
Good: ending of union duty to identify strikers by name. Dubious: new duty to supply such information 'as would help the employer to make plans and bring information to the attention' of strikers - could this require names, addresses and jobs? And might a 'plan' be to sack and replace strikers?
Good: abolition of the CROTUM and the Commissioner for Protection against Unlawful Industrial Action. Dubious: the Certification Officer now becomes a judge, dealing with complaints concerning: union registers, accounts, election, political rules, amalgamations and transfers, breach of union rules other than discipline or dismissal of an employed officer or staff.
There's lots of other useful stuff in this Bill. And I don't mean the reaction of one of my learned friends: 'If the trade unionists won't thank him - the lawyers certainly will.' No, Ian McCartney is to be congratulated for battling the forces (including the Prince) of darkness. With a 170 majority in the Commons, and the unions under orders not to criticise, he can expect a smooth ride from now on.
Or can he? Wouldn't demands for more in the Bill help counteract tabloid demands for less? Wouldn't some union pressure show the Government has not given in to the unions? Will the Bill satisfy trade unionists wrestling with the new recognition rights? Will it satisfy the demands of international law which the Government upholds against Iraq, which its 'ethical foreign policy' is designed to support, which it acknowledges as vital in the global market place. Let's look.
First, recognition. At last a legal mechanism for recognition after 20 years. But why, oh why, the US system of workplace ballots? Why not the European or Australian systems of automatic recognition? Union membership in the US is near the lowest in the world at 15 percent. More important the number of workers covered by collective bargaining in the US is rock bottom at 18 percent of all workers. Hear Bill Gould, former Chair of the US National Relations Board discuss the US system at the Institute of Employment Rights Conference (see advert). Union membership in Europe varies from high to low. But collective bargaining coverage is universally high: France 95 percent of all workers; Finland 95 percent; Germany 92 percent; Netherlands 81 percent; Spain 66 percent. Britain is 48 percent, down from 83 percent in 1970.
The Bill's recognition (and derecognition) procedure is highly complex - 25 pages of small print. The hurdles to recognition have been well aired. Not so well known is that the sole remedy for a recognised union where an employer refuses to negotiate properly is not arbitration but an application for 'specific performance' in the Courts (not Employment Tribunals). These are notoriously difficult.
But what of international law? Britain has been condemned for years for having employment laws which breach the international laws which it has ratified. The Tories simply ignored them. For me, the real criticism of this Bill is that it will not stop Britain remaining an international law-breaker. This is particularly sad because this is the first law (other than European laws) for 20 years which has given anything to British workers.
Take the right to strike. Under the Bill it will be automatically unfair to dismiss a worker taking lawful industrial action for eight weeks from the date the action started. Compared to what we've got now, that's brilliant. But it means that it will be fair to dismiss a worker who threatens to take industrial action; fair after 8 weeks (and this would include an overtime ban every Friday) if the employer has 'followed an appropriate procedure to resolve the dispute', e.g. reached a failure to agree by refusing concessions in a disputes procedure; fair if the action turns out to be unlawful in spite of proper ballots etc. as in the University College Hospital and London Underground court decisions before Christmas (strikes pressing an employer for guaranteed terms and conditions on privatisation held unlawful).
There are two essentials of British law which explain why employers can dismiss strikers. First, there is no right to strike in Britain; second, all forms of industrial action are a fundamental breach of contract by the worker.
The International Labour Organisation has many, many times condemned these two characteristics as being profound breaches of ILO Convention 87. Last June the ILO Conference, with the support of the British Government delegation, adopted a Declaration of Fundamental Principles. First of these is freedom of association which, the ILO holds, includes the right to strike.
This Bill fails to deliver the right to strike. It fails to rectify the Tories outlawing of all sympathy action. Britain remains an international law breaker.
It is not just the ILO. In February 1997, the Council of Ministers, the highest body of the Council of Europe, condemned Britain on the same grounds for breach of the European Social Charter 1961.
In December 1997, the United Nations Committee on Economic, Social and Cultural Rights condemned Britain on the same grounds for breach of UN Covenant.
Before we leave international law, the ILO also condemned the law brought in during the Wilson-Palmer case which allows an employer to discriminate against trade unionists where the employer seeks to derecognise or impose individual contracts. The Bill leaves this intact.
Last point on the Bill. The TUC have demanded the right of a union to represent its members. That is a fundamental right derived from international law. The Bill does not provide such a right. Instead it gives a right for a worker to be accompanied by a trade union representative at discipline and grievance hearings. But this right only arises where the worker 'is required or invited' to attend. No invite, no right to representation.
OK, this is nit-picking. Let's return to the big picture. The EU is all about harmonisation of markets across the nations. Globalisation is all about exploiting the differences. Trade unionists insist to both, rightly, that above all, labour standards must be harmonised across the globe. The ILO and the other international law bodies have decreed the minimum labour standards. We must begin by insisting on them here.
That is why 8 national unions and dozens of regions, branches and trades councils have formed the United Campaign to Repeal the Anti-Trade Union Laws to 'Reclaim our Rights'. Join us on the London May Day Organising Committee's march and rally on 1st May 1999 from Clerkenwell to Trafalgar Square.
This article first appeared in The Morning Star.
By Maria Exall
The New Labour government's Employment Relations Bill represents a defining moment for the trade union movement. It tells us exactly where we stand in relation to this government and indeed the entire New Labour project. The Bill provides us with a reference point by which we can measure the effectiveness of trade union involvement in the Labour Party and assess what trade union rights we have secured in return for funding and sustaining the party over nearly two decades in opposition.
The Bill is not the kind of thing to which we can react by saying, 'Well it's not very good, but more reforms are in the pipeline.' That's because there aren't any more reforms on the way. We have been told by both Blair and successive Employment ministers that the measures in the Bill represent all that is on offer from this government in terms of trade union law reform. So the question is: how should the trade union movement judge the Bill?
John Hendy's judgement that it is good, but not good enough, may sound harsh to some, but the reality is that the Bill is worse than Hendy admits.
The Bill treats trade unionists as second class citizens by saying that the normal rules of democracy and majority rule are not strict enough for us. That's the political meaning of the hurdles introduced into the recognition ballots that mean that unions must secure - not just a majority of those voting - but support from 40% of the total workforce if we are to gain union recognition. If this law was applied to Westminster elections then Blair and most of the Cabinet would be out of a job as few politicians ever secure the support of 40% of their total electorate in a ballot.
This 40% quota is a new departure in British trade union law and can only be described as anti-union. It is New Labour's very own contribution to the viciously anti-union legal framework that the Tories introduced. The removal of these shackles was - until very recently - one of the reasons given by trade union leaders for supporting the Labour leadership and subsidising the Labour Party - but now it seems that trade unionists are being asked to help fund our own subordination. To the tune of millions of pounds since 1979.
Having established what elements of the Bill are in principle anti-trade union, I wouldn't want to quarrel with the rest of the assessment of the legislation made by my comrade from the United Campaign to Repeal the Anti-Trade Union Laws, John Hendy. I would, however, want to question his assessment of the role of the trade union leaders and self-styled 'working class' New Labour ministers like Ian McCartney MP.
The trade union leaders have suffered something that it would be kind to call ritual humiliation at the hands of Blair. He has given them virtually nothing and in return has demanded their silence and acquiescence. We even have the grotesque spectacle of people like Bill Morris and John Edmonds queuing up to give their endorsement to a legal settlement that leaves the trade union movement in a state of semi-legality in which virtually all of the traditional tactics of effective trade unionism are illegal.
It is difficult to work out whether Blair thinks of the leaders of the trade union movement as fools or tools.
Probably both because that's the way they are behaving.
It is this that makes John's reference to the trade unions being 'under orders' to stay silent seem so strange. Who gave the order? Blair did, with the implicit threat that if the unions don't stay silent then they won't get anything.
The reality of British politics is that if the unions decided to mount a real campaign for trade union rights, jobs and the welfare state then it would be Blair who felt threatened and weak. It is the servility of our professional trade union leaders that has shaped this legislation as much as the ideological imperatives of New Labour. Politics abhors a vacuum, but that is just what the union leaders and politicians like Prescott and McCartney have created by refusing to stand up for working class and trade union values against this Thatcherite invasion of the body snatchers called New Labour.
That vacuum can now only be filled by a resurgent trade union and labour movement rank-and-file response to fight New Labour around the idea of working-class political representation.
A serious campaign to free our unions will have to involve a fight to remove 90% of the current official leadership of the trade unions who, judged by the Employment Relations Bill, can only be called abject failures as trade unionists. We will have to replace them with people closer to the rank and file and prepared to be held accountable to them. The same goes for bogus 'working class' MPs like Ian McCartney whose behaviour proves the point about the Labour Party - it's the working-class people who get the shit jobs and the shit in real life.
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