Trade union recognition - DTI consultation on draft Code on Access and Unfair Practices: BECTU response

17 February 2005

1. BECTU is the trade union for workers, other than performers, in the audiovisual and live entertainment sectors. We welcome the opportunity to respond to this consultation. We have a particular concern on unfair labour practices during trade union recognition campaigns. This stems from our own experience during our recognition campaign at Sky Subscriber Services (BSkyB). We gave specific evidence on this in our response to the DTI Review of the Employment Relations Act 1999.
2. We welcome, in principle, the Government's introduction of a Code of Practice on this issue. Our contribution to the consultation will focus mainly on concerns arising from our own experience of unfair practices and will not, therefore, deal with every aspect of the Code. Our specific comments are set out below.

Access agreement (para 17)

3. In developing an access agreement, there should be an equivalence in the requirements laid on employers and unions. The draft Code provides (para 17) that the union should set out its programme for when, where and how they will access workers. We believe that a similar expectation should be placed on employers to disclose their proposed programme. An additional bullet point should be added to this effect.
4. Furthermore, we believe employers should also be required to disclose whether they intend to use external consultants during the recognition campaign. An additional requirement should be added to para 17 providing for employers to disclose the identity of any such consultants.

Employer campaigning (Section E)

5. We believe there is an undue emphasis throughout this section on 'normal' or 'active' campaigning by employers against recognition. Instead, and, in line with the spirit of the legislation, we believe that the emphasis should be on what employers are prohibited from doing.
6. There is a danger, in the way Section E is currently drafted, of adopting the assumption that employers can and should campaign against recognition. Indeed, Section E could currently be read as a handbook on how employers should conduct such a campaign.
7. Rather than suggesting specific amendments, we believe the section should be rewritten to focus on what employers are prohibited from doing during campaigns. An emphasis on prohibiting unfair practices is, we believe, more accurately in line with the aims of the legislation. In fact, an earlier draft of the Code included a phrase making clear that any 'anti-union posture [by employers] �. is inconsistent with the aims of the legislation and shows no respect for the democratic purpose of the balloting process'. We believe this should be reinstated in a rewritten Section E.

Undue influence (para 55)

8. Clarity about what constitutes 'undue influence' (on workers during a ballot) is we believe, at the heart of an effective Code of Practice. The current draft does not, in our view, give sufficiently clear guidance on the types of activity that constitutes undue influence.
9. Our experience at BSkyB encompassed threats to outsource or contact-out jobs in the event of trade union recognition - based on unsupported allegations that recognition would lead to uncompetitiveness. This threat - made in writing and at meetings - was extremely unfair and yet extremely effective in a company already known to operate foreign call centres and in a context where alternative local job opportunities were limited.
10. We therefore believe the Code should be far more specific in spelling out practices which are likely to constitute undue influence.

    These should include:

    • the threat of job cuts, site closure, relocation or the contracting out of work
    • threats, suggestions or innuendos about the consequences of recognition or hostile anti-union propaganda.
11. We recommend amendments to this effect on the basis that the more specific the Code, the more effective it is likely to be.

Threat of job cuts/closures/relocations (para 66)

12. It follows from the above that we believe threats of job cuts, site closure or relocation/outsourcing should always be construed as 'undue influence' by the employer. We are therefore concerned that para 66 appears to provide that 'references to job prospects' can constitute 'fair comment'. Based on our direct experience of the campaign at BSkyB, we believe that allowing such a loophole would completely undermine the aims of the legislation and could render the Code completely ineffective.
13. We therefore recommend that paragraph 66 should be deleted. As it stands, it sends a confusing and ambiguous message about what constitutes 'fair comment'. Instead, we believe the Code should be stronger and more specific in specifying what constitutes undue influence (as referred to in relation to para 55) and that, in this context, para 66 is harmful, unnecessary and should be removed.

Conclusion

14. We welcome the new legislation on unfair practices during recognition campaigns and the consequent development of the Code of Practice. However, from our direct experience of 'unfair practices', we believe the draft Code requires amending - especially in relation to paragraphs 55 and 66 - in order to render it effective and fully compatible with the aims of the legislation. We look forward to the further progress of the consultation and to the introduction of the Code at the earliest opportunity.