BECTU response to the review of the Employment Relations Act 1999
17 May 20031. BECTU has welcomed the review of the Employment Relations Act 1999 but looks to meaningful changes to the legislation in a number of key areas. Our response, as set out below, focuses on the issues of most direct relevance to BECTU members and to our practical experience of the existing law in operation. On issues not specifically covered in our own response, we take the same view as that outlined in the TUC's overall response to the review. We deal with the issues in the order in which they are set out in the Consultation Document.
Statutory recognition
Small firms threshold
2. We note with disappointment the Government proposes (in 2.16) to retain the threshold of '21 or more workers' before statutory recognition can apply. We operate in the audiovisual and live entertainment sector, which is characterised in some areas by a disproportionate amount of small firms eg in the independent production sector for film and television. In this sort of area, the small firms threshold has the significant and undesirable effect of removing the option of statutory recognition on a widespread basis.3. We therefore urge the Government to consider the impact of the threshold not just on the economy as a whole but specifically on those sectors with a high proportion of small firms. We recommend that the threshold be removed in order to allow a fair opportunity for recognised trade union organisation in these areas.
10% membership requirement/40% requirement for recognition
4. In common with the TUC and all independent trade unions, we are disappointed that the Government proposes no change in either of these areas 2.21,2.28)5. We believe that achieving majority membership or a majority in a recognition ballot should be the only necessary test for achieving statutory recognition. There is no organisational or democratic justification for maintaining this additional threshold. It remains the case that very many elected politicians, governments, councils and assemblies would fail to achieve the 40% threshold, according to which every failure to vote counts as a 'no' vote. We believe this is an extraordinarily unfair requirement to apply to trade unions seeking recognition and that both thresholds should now be removed.
Access rights
6. We note that the Government proposes union access to workers, from the point at which the CAC accepts the application, by postal communication via a third party or possibly electronically (2.48).7. We recognise that access from the point of acceptance of the application is an improvement on the current position, under which the right of access applies only from when the CAC orders a ballot. We welcome this. We believe, however, that the means proposed (postal or electronic access) are wholly inadequate for a meaningful approach to recognition. We therefore believe that 'access' should entail the right to direct on-site contact with the workers involved at reasonable times and venues. We believe such a measure would allow a more effective two-way flow of information and communication between the union and the workers concerned.
Definiton of collective bargaining
8. We note with disappointment that the Government does not intend to add training (2.51) nor equality (2.52) to the current list of core bargaining issues covered by the statutory procedure.9. We believe this approach contradicts the Governments clear commitment to training generally (including the new rights for union learning representatives) and to equality of opportunity. We believe any progressive approach to collective bargaining and to achieving a highly trained, equal opportunity labour force should designate these as essential aspects of the core bargaining agenda. We believe, therefore, that both training and equality should be covered by the statutory procedure.
10. On pensions, we note the Government does not presently choose to regard these as 'pay' for purposes of the procedure but there is a proposed order-making power to allow this in future (2.56).
11. We believe there is now overwhelming evidence that pensions is a normal bargaining topic in voluntary collective agreements across the economy. In our own sector, bargaining on pensions is a very common aspect of industrial relations and it is extraordinary that it remains outside the scope of statutory recognition agreements - especially in the light of the CAC's decision in the UNIFI/Bank of Nigeria case. We believe pensions should be included as a bargaining topic in the statutory procedure now rather than through future order-making powers.
Disclosure of information by the employer to the union
12. We welcome the proposal (in 2.72) that employers should be required to disclose the members/grades/locations of workers in the bargaining unit at the CAC stage for negotiating the bargaining unit.Detriment and dismissal: unfair labour practices
13. Of all the issues raised in the review, this one is of very major concern to BECTU, based directly on our own experiences.14. In particular, we refer to our statutory recognition application in respect of sales staff at Sky Subscriber Services in Livingston (part of the satellite broadcasting company BSkyB). While the CAC accepted the application and agreed with BECTU's proposed bargaining unit, and while more than half of the workers in the bargaining unit had signed a petition in favour of recognition, the result of the eventual ballot, as declared on 4.2.03, was a rejection of the claim. Our concerns about the current statutory procedure stem from our own experience of this recognition campaign.
15. The company - without any sanction under the current statutory procedure - was able to engage in what in our view was an unscrupulous campaign of intimidation of the workers involved. Totally unsupported allegations were made that trade union recognition would lead to uncompetitiveness and that this would require outsourcing the entire operation. This was a clear and direct threat to the jobs of the workers concerned - especially in the light of other company call centres in India and of the limited alternative employment opportunities in the Livingston area.
16. These intimidatory threats to workers' jobs were made in systematic one to one meetings between management and individual workers, in collective staff meetings and in written form. This was compounded by similar meetings with staff members at another company site in Osterley, West London (with a clear message that recognition would lead to the closure of Livingston, and in the clear expectation that the workforce at Osterley would communicate this to their colleagues at Livingston). Furthermore, the company attempted to victimise a union representative during the course of the recognition campaign by suspending him from duty and inviting him to consider a proposal of 'redundancy'. Even following the ballot results, BSkyB's Director of Human Resources wrote directly to all 13,500 Sky Group staff members warning that their jobs could be outsourced if they signed any petition calling for union recognition.
17. Such behaviour is unacceptable by any normal contemporary standard of industrial relations in the UK, but is completely in line with the tactics laid down by American 'union-busting' consultants. We believe the Government should find it unacceptable that its own procedures are compatible with such extreme anti-union practices. 18. We therefore recommend:
- that practices such as those outlined above should be designated as 'unfair labour practices' (a concept already familiar from the USA) and thereby as unacceptable within any statutory recognition procedures
- that the specific practice of threatening jobs through proposed outsourcing or relocation should be ruled as an inadmissible argument which falls outside of any possible definition of 'reasonable campaigning activity' by the employer (especially since trade union recognition in itself entails no financial cost whatsoever).
- that if such threats to outsource or relocate the business are proven to have been made during a statutory campaign, the sanction should be the automatic and immediate award of recognition by the CAC.
- and that rather than keeping this issue 'under review' (2.102), the Government should implement these recommended changes at the earliest opportunity.
Definition of 'worker'
20. As a union with a large proportion of freelance and casual workers among our members, we have a strong interest in the issues raised in this section.21. Firstly, we are concerned about the continuing inconsistency and lack of clarity on employment status in relation to employment rights. In particular, groups such as Schedule D freelances have a mixed experience of sometimes being counted as 'workers' (including successful Tribunal case settlements) and sometimes being denied access to employment rights. As the Consultation Document notes (2.116), there is an ongoing DTI review of employment status. Our own submission to the review argues fro a broad and inclusive definition of 'worker' which would include individual Schedule D freelances (who often work for the same companies in the same locations on the same projects and under the same collective agreements as their PAYE freelance colleagues.
22. Such individuals are not entrepreneurs creating their own work; they personally provide their own services; and they have no economic independence from the prevailing terms and conditions on the freelance labour market (ie even if they work for a number of different companies, they are subject to the same going rates and conditions). In or view they are 'workers' by every reasonable interpretation of this term. We strongly believe they should be included as a worker for purposes of statutory recognition. Without this, some of them will lose the opportunity for trade union protection which they wish to have and without which they have no alternative source of support.
23. We have one current and a further number of potential statutory recognition applications encompassing freelances (specifically including Schedule D freelances) - all in the broadcasting sector. There is therefore an urgency in clarifying whether such freelances are 'workers' for this purpose. We believe strongly that they are. We urge the Government to provide early clarification that this is the case.
24. A second issue in this area is the position of freelance workers who are members of a defined labour pool. which becomes the proposed bargaining unit. This is precisely the case in a current recognition application by BECTU. We have identified a group of workers with a strong and consistent employment relationship with the company concerned. They work as a series of fixed term contracts. In our view the strength of the employment relationship is such that they are clearly a legitimate bargaining unit and a legitimate constituency for a recognition ballot, even if at the time of the ballot some of them are between contracts rather than within a current fixed term contract.
25. Where the overall employment relationship is strong (as can be proved in this case by the pattern of fixed term contracts), we see no reason for not accepting such a freelance labour pool as a bargaining unit and we urge Government to provide clarification on this point covering potential future cases of this kind.
Trade union and industrial action law
Industrial action notices
26. We note the Government's proposals for simplification of industrial action notices and the invitation (3.29) to comment on these. In particular, we note the first proposal, under which unions would only have to identify the total number of employees involved, together with a list of the categories and workplaces affected.27. We recognise that the original intention of the Act was to simplify the notice procedure. In common with many unions, we have in practice - because of the caselaw - found that industrial action notices continue to be unnecessarily complex. We have found it necessary to continue supplying lists of names even when this was clearly not the intention of the legislation.
28. We therefore welcome any proposed simplification, such as the first proposal referred to above.
Dismissal of strikers
29. We are disappointed in the proposal to retain the limited 8 week period during which the dismissal of strikers is automatically unfair (3.37). We believe there should be no such limit on unfair dismissal protection for strikers following a lawful industrial action ballot. As the Government concedes, there are relatively few disputes exceeding 8 weeks, so the problem is of limited overall impact, while of course being vitally important for the strikers involved.Right to be accompanied
30. The current law has caused difficulty and confusion. From the experience of our own officials and representatives we have faced a range of interpretations by employers - including the refusal of any right to speak and the limitation of contributions to procedural rather than substantive points.31. In our view there is no justification for the anomalous use of the term 'companion' rather than 'representative'. In practical terms, however, it is even more important that the companion/representative should have a clear right to speak and make an active contribution on all aspects of the proceedings. If this is what is meant by the proposed clarification of the law (3.43), then we would welcome it.
The institutional framework
Certification Officer: power to strike out weak cases
32. We welcome the proposal (4.29) that the CO should be given the power, similar to Employment Tribunals, to strike out weak cases. Some unions have been forced to spend a disproportionate amount of time and resources dealing with such cases before the Certification Officer and we welcome this solution to the problem.Other issues
Employment status
33. As referred to above, BECTU has a close interest in issues of employment status and made a full submission to the Government review referred to in 5.19. We urge the Government to make progress with this review.Better Regulation Task Force
Election of union presidents
34. BECTU has, of course, had the experience of an adverse ruling by the Certification Officer on this point - resulting in the 'costly administrative burden' of holding ballots both for the NEC (on which the union's President sits) and directly for the President.35. The union's view remains that election to the NEC is a sufficient democratic test and that a second ballot for the post of President is unnecessary. We therefore welcome the proposal (C6) to remove the requirement for such Presidents (who are already elected members of the union's executive) to face a separate ballot of the membership.
Political funds
36. The union's view has, from the start, been that political fund ballots are an unnecessary restriction and imposition. No other kind of organisation - including companies who consistently engage in political lobbying - has to undergo such a procedure, which is especially unnecessary when there is an individual right of opt-out from the political levy.37. We urge the Government to reconsider its view (C9) that there should remain a statutory requirement for such ballots.