BECTU response to the UK Government White Paper "Fairness at Work"
30 June 1998
Introduction
1. BECTU broadly welcomes the Government's proposals on employment legislation as put forward in "Fairness at Work". We recognise that the new ideas on individual rights, on collective rights and on family-friendly policies will potentially benefit vast numbers of workers and trade unionists, as well as opening up new opportunities for trade unions. We note with approval the contrast between the positive approach of the Labour Government and the antagonism of the previous succession of Conservative Governments, each of which introduced legislation hostile to trade unionists.
2. This broadly and genuinely positive reaction does not, of course, preclude BECTU from having a number of criticisms of the proposals and from seeking consequential amendments. We believe this positive but critical approach is shared by most of our fellow trade unions and by the TUC itself. A number of key points of criticism (e.g. on the issue of the 40 % of eligible workforce threshold for recognition) will no doubt be made forcefully and very adequately by those other organisations. In our own submission, therefore, we concentrate on those points which have a particular and direct relevance to our own members - while separately supporting many of the general points which will no doubt be made by the TUC and others. Our concerns are set out below, broadly in the order in which the issues are raised in the White Paper.
Qualifying Periods for Employment Protection Rights
3. BECTU welcomes the proposal to reduce the qualifying period for unfair dismissal rights to one year as a clear improvement on the status quo.
4. In common with many other trade unions, however, our view remains that employment protection rights generally ( and not just on unfair dismissal) should apply from day one of an individual's contract.
5. We have a particular reason for this concern. Many of our members working in broadcasting, independent production, the film industry and theatres typically work on short-term contracts - very often shorter than a year. This is not a matter of individual choice and simply reflects the casualised labour market in these sectors. We believe that these workers deserve the full protection of the law from day one. Without an extension of employment protection rights in this way, many such workers could continue to operate for their whole careers outside the scope of employment protection legislation. It is surely wrong that individuals' rights can be diminished in this way not by their own choice but by the employment practices of the sectors in which they work.
Waiver clauses
6. BECTU has a very specific interest in the issue of waiver clauses, i.e. the ability for employers to insert a clause in fixed terms contracts waiving the worker's rights to unfair dismissal and statutory redundancy payments. We are currently backing a test case directly on this issue taken by one of our members, Linda Kelly-Phillips, against the BBC. Our member is claiming unfair dismissal against the BBC, whose main defence rests on the existence of a waiver clause. Despite our member winning at the Industrial Tribunal and the Employment Appeal Tribunal, the Court of Appeal ruled against her and we have subsequently petitioned the House of Lords for leave to appeal. The Court of Appeal recognised the potential for abuse of waiver clauses but took the view that it is for Parliament to remedy this problem. The ruling as it stands has made the situation even worse, by appearing to allowing waivers even in contracts for less than one year.
7. We believe very strongly that the Government should take immediate action on this issue by the complete prohibition of waiver clauses. As indicated above, fixed term contracts, usually of short duration, are prevalent in many sectors in which we organise. Employers such as the BBC use waiver clauses as a matter of routine practice and will not be prepared to do otherwise by mere exhortation.
8. We believe that this is simply a bad and unjustifiable practice which does nothing to facilitate the working of the labour market in any positive way. Many of the jobs where waiver clauses are used could as well be permanent. The continuing need for the work to be done is evidenced by the wide extent of rolling contracts, i.e. the same individual (as in the case of Ms Kelly-Phillips) is engaged on a continuous succession of contracts. The impact of waiver clauses seems purely to enable employers to evade employment protection responsibilities and to induce permanent insecurity in the labour force affected.
Extending the Coverage of Employment Rights
9. BECTU welcomes the commitment to consult on the extension of employment rights and very strongly urges action in this area. As a union with a majority of our membership not in permanent employment, we regard this as one of the most important single issues in the White Paper.
10. Our view, as outlined in previous consultations (e.g. on Working Time) is that employment protection legislation should apply to all those who work for another person, regardless of whether the worker is freelance, 'self-employed', casual or an agency worker etc.
11. We have long and extensive experience of organising freelance and casual workers. Their technical status (e.g. as PAYE or Schedule D) is ultimately the product of the labour market in which they operate, not their individual choice. For many such individuals the option of employee status in a permanent job simply does not exist. They face not only the pressures and problems of permanent employees but also the fundamental and continual threat of job insecurity. In our view they are 'workers' with the same need - if not arguably an even greater need - for the employment protection rights enjoyed by the permanently employed. Such workers already operate in the ultimately flexible labour market - one with a minority of or in some cases no permanent employment. They deserve at least minimum legal standards to protect their position.
12. The precise definition of 'those who work for another person' is obviously open to further specific discussion when any implementing regulations are produced. At his stage, however, we would refer to our earlier evidence on the implementation of the Working Time Directive. In that submission, we seek to address subsidiary issues (e.g. supply of equipment, invoicing, VAT registration, supply of fellow crew members, labour-only service companies) which should not, in our view, be used as reasons for the denial of employment protection rights. We very much look forward to further Government proposals in this area.
13. We note with approval that the rules governing the conduct of employment agencies are under review. As a union organising a significant number of workers operating through agencies (e.g. walk-ons in film and television production) we look forward to the opportunity to respond to the anticipated consultation on this matter.
Trade Union Recognition
14. As indicated above, we propose to concentrate in this submission only on those aspects of most direct and specific relevance to BECTU. Our first concern is to seek reassurance that while the relevant section in the White Paper refers throughout to 'employees', the proposed recognition rights would in fact apply to the much broader definition of eligible worker referred to above. We take the footnote attached to point 1.4 ("the term 'employees' is generally used to cover all those who work for someone else") as very definitely applying to the issue of recognition.
15. A prime concern which we have about the proposed procedures concerns the timescale involved. If employers do not cooperate, the timescale for enforcing a ballot appears to be of the order of 90 days and the timescale for reaching a procedure agreement (if necessary a default agreement through the CAC) could be in excess of 6 months.
16. We operate in a sector with a significant amount of project-based employment - i.e. film, television or theatre productions - which bring together a workforce for a specific but limited period. Such productions - e.g. feature films - can involve large numbers of workers, very many of which are trade union members. Nonetheless, the sheer time involved in achieving recognition in the absence of employer co-operation could mean that many workers will not gain at all from the legislation. Indeed, experience from the previous recognition legislation in the 1970s indicates that reluctant employers will use delaying tactics within the procedures precisely in order to run out of time and thereby avoid recognition followed by a meaningful procedure agreement.
17. We fully appreciate that in the general run of events, and certainly in situations of permanent employment, procedures with reasonable timescales are required. What is reasonable for permanent employment may not, however, be reasonable for project-based employment. We therefore urge the Government to give consideration to fast-track procedures, perhaps overseen by the CAC, so that in these specific circumstances, recognition ballots and agreements can be more readily implemented. We accept that there may have to be a irreducible minimum time which would exclude very short-term projects but we believe that further flexibility in the direction indicated is desirable to include a whole section of the workforce who may otherwise be denied recognition even though they work in large numbers and with potentially clear majority support for recognition. We believe the mere existence of such a fast-track procedure would in practice encourage voluntary recognition on the part of many employers who would recognise the consequent futility of delaying tactics.
18. A subsidiary and very specific point relates to point (viii) of the Statutory Procedure for trade union recognition in Annex 1. This refers to the possibility of the CAC, failing voluntary agreement, imposing a model collective bargaining procedure. We would ask for an additional option to cover situations where the employer and trade union are operating in a sector with an overall industry agreement (reached between trade unions and an employers' association) which sets minimum terms and which many other employers already operate in equivalent situations. In these circumstances, we would ask that the CAC be given the power to require the employer and trade union to operate under the relevant industry agreement, rather than imposing a separate model procedure.
19. Our further concerns on the recognition proposals are as follows:
a) We are opposed to the exclusion of small firms with 20 employees or less. We operate in some sectors - especially independent film and television production and facilities, and small theatres and arts centres - where an exclusion of this kind could effectively remove the possibility of statutory recognition for all but a minority of companies. It is often precisely in small companies that workers are most vulnerable to bad employment practices and most in need of trade union protection. We urge the Government to reconsider.
b) We note that statutory recognition will cover negotiations on pay, hours and holidays. We urge that training and equal opportunities be added to this list. This is especially important for sectors like ours with a significant amount of fragmentation, casualisation and the absence of clear cross-industry training provisions and equal opportunities standards.
Trade Union Discrimination
20. We note with approval that the Government proposes to make it unlawful to discriminate by omission on grounds of trade union membership or activities, thus overturning the impact of the House of Lords ruling in the Wilson and Palmer cases. We further support the proposal to prohibit the blacklisting of trade union members. We hope that this will undermine the tendency of some bad employers in the freelance sector simply not to engage workers with a record of trade union activity.
Industrial Action: Mobile Workers and Picketing
21. We note that while leaving much of the legislation governing industrial action in place, the Government puts forward a number of welcome proposals in this area such as the right to claim unfair dismissal for those involved in official industrial action and the reform of the law and code on industrial action ballots and notice.
22. Without wishing to reopen the general debate on picketing or secondary action, we have a very specific concern in this area. This concerns the right of mobile and peripatetic workers to engage in lawful picketing.
23. Our concern grows out of practical experience in a recent industrial dispute between BECTU and the BBC. A number of workers involved were outside broadcast crews who have a notional base but who spend the majority of time away - all over the country - at sites where the broadcasts originate (e.g. sports events, concerts). Despite being covered by a lawful ballot in favour of industrial action, and despite seeing management taking over work which would normally be theirs, our outside broadcast members were prevented from picketing their actual place of work on the strike day in question, having been faced with the threat of an injunction from their employer.
24. Our problem is that the 'workplace' to which the right of lawful picketing is restricted is - for these and a large number of other members in our sector (e.g. film crews on location) - only a notional base. For the majority of time they are 'at work' but away from their base. Far more meaningful to them as a workplace is the site they are actually working from at the time. At present, such workers effectively have no meaningful right to engage in lawful picketing. They are very rarely at the base which they would be allowed to picket; the distance and times involved in their travelling duties preclude them returning there to engage in picketing; and the very purpose of picketing (to peacefully communicate information and, if necessary, to persuade a person not to work) requires them to exercise this right at the site they are actually working from during the period of industrial action.
25. We therefore urge the Government to amend the relevant law and Code of Practice on picketing to allow mobile and peripatetic workers in all industries to lawfully picket the site where there are actually working at the time of industrial action. We consider that while not reopening the general issue of secondary picketing, this measure would represent a fair and reasonable restoration of a basic right to all those working in this way.
Individual Representation Rights
26. We welcome the proposal to create a statutory right for workers to be accompanied by a trade union representative during grievance and disciplinary procedures. In a sector such as ours, with a huge proportion of freelance, project-based employment outside of the structures of permanent employment and detailed collective bargaining., this extension of individual representation could have considerable significance.
27. We would wish to make the following ancillary points:
a) We take the right 'to be accompanied by' to incorporate an active representational role by the trade unionist concerned and not just an observer's role.
b) We believe that lay representatives will only be able to take on a meaningful and increased role in this area a long as there is a suitably increased opportunity for time off with pay for such trade union activity ( and for appropriate training).
Conclusion
28. While welcoming the broad thrust of "Fairness at Work", BECTU seeks amendments or further consideration in the areas outline above. Among the points raised, our most pressing concerns relate to:
- waiver clauses
- extending the coverage of employment rights
- the time limits for statutory recognition
- picketing rights for mobile and peripatetic workers
29. We believe that, suitably developed, the "Fairness at Work" proposals will represent a significant extension of employment rights for workers in the UK.