In the early days of capitalism employers, in their struggle for maximum profits, were able to act with almost complete ruthlessness in their treatment of workers. They could take advantage of every rise of unemployment or inflow of immigrant workers to reduce wages to a bare minimum, using the lock-out if necessary to starve workers into submission. They imposed excessive hours of labor and ordered temporary extensions of normal hours without giving overtime pay.
They employed workers in overcrowded and unsanitary factories and workshops, and exposed them to frequent accidents from dangerous machinery. They introduced new working processes and machinery at will, often replacing men by lower-paid women and children. Factory discipline was like that of a military force, and workers who ‘mutinied’ could be sacked and, by arrangement with other employers, blacklisted, so that they could not get work elsewhere. Employers accepted no responsibility for payment of wages during sickness, and workers sacked or disabled had to rely on their own resources.
Trade unions were formed to resist these pressures. The basic idea was that, by combining together, workers could get better terms, protect individuals against victimization and provide payments out of union funds during strikes or lockouts. As the immediate consequence of successful union action was to reduce the employers’ profits, their reaction was predictable and they did everything they could to crush the unions. They got the government and Parliament to declare the unions illegal for organizations under laws carrying savage penalties.
They declared that British industry would be ruined by the unions and the workers would become unemployed. They had the backing of the church and of most economists in their anti-union campaign, yet so desperate was the condition of the workers that unions went on being formed and operating. Unable to suppress them the government finally, in 1824, made them legal. Employers have come to learn that trade unions can be useful to them. Now only a few employers and eccentric capitalists are anti-union.
Most employers, especially the bigger ones, including the nationalized industries and the government, accept trade unions as “social partners” whose joint task it is to see that industry runs smoothly and with a minimum of industrial trouble. Employers have had to come to terms with trade unions and strikes. In return for recognition (sole bargaining rights, compulsory union membership and sometimes the deduction of dues from wages and representation on various joint committees) trade unions are expected to keep their members in order and, if necessary, discipline them: for example, if they interrupt production by going on unofficial strike.
Most unions in Britain today are prepared to accept such a deal. The question arises to what extent modern trade unions can still be regarded as democratic organizations, in the sense of being run by and for the workers. That the unions do provide a service for their members cannot be denied. What is relevant in this context is the extent to which trade unions are run by their members. Most unions have formal democratic constitutions which provide for a wide degree of membership participation and democratic control.
In practice however, these provisions are sometimes ineffective and actual control of many unions is in the hands of a well-entrenched full-time leadership. It is these leaders who frequently collaborate with the State and employers in the administration of capitalism; who get involved in supporting political parties and governments which act against the interest of the working class. But it would be wrong to write off the unions as anti-working-class organizations. The union has indeed tended to become an institution apart from its members; but the policy of a union is still influenced by the views of its members.
A union is only as strong as its members. For without their participation at the place of work, and without their willingness to go on strike or take some other form of industrial action, a union would be in a weakened position with regard to the employer. Although the First International lasted for only a few years it left behind unions in many countries which appreciated the need for international organization, leading in 1901 to the formation of the International Federation of Trade Unions representing for each country national federations like the TUC.
At the same time international organizations were formed representing unions in particular industries, such as the miners, the transport workers, engineering workers, etc. The statutory recognition rights provided by the Employment Relations Act 1999 appear to offer substantial new legal support for trade unions in Britain. It is, however, far from clear how substantial this support will prove to be in practice, or how far it will alter the extent and conduct of collective bargaining. There have already been some broad-ranging analyses in anticipation of the legislation (McCarthy, 1999; Wood & Godard, 1999; Towers, 1999).
Although the law increasingly acknowledges alternative forms of employee representation, the promotion of collective bargaining through a recognized trade union is ‘still the favored means of advancing the interests of both unions and workers’ (McCarthy, 2000). There are inherent difficulties in using legal sanctions to bring parties to the bargaining table; the 1999 Act, accordingly, holds the threat of statutory recognition in reserve for situations where the parties have failed to make provision for voluntary recognition.
This ‘procedural’ emphasis means that, on close inspection, what appears to be a statutory right to recognition is in fact nothing of the sort. The Act is therefore likely to disappoint those who see it as the harbinger of a new right to collective bargaining. The new recognition procedure arguably makes more sense as part of a wider package of measures aimed at advancing ‘partnership’ at work. However, this is not necessarily consistent with the priority given to the recognized trade union as the preferred model of employee representation.
The problem is not simply that the new law will have little or no impact on workplaces where union influence, while significant, is nevertheless far below the membership thresholds set for statutory recognition. Even where the union can show majority support within the relevant bargaining unit, the new law does little to promote an active, continuing dialogue between the parties. This is in contrast to the alternative ‘information and consultation’ model of employee representation which is found in various forms in mainland Europe and which has enjoyed, from time to time, the support of the TUC.
This approach arguably has the potential to promote partnership based on dialogue in many more workplaces than those which will be affected by the new recognition law, and, indirectly, to widen the range of matters over which bargaining takes place. A natural assumption might be that the act of trade union recognition is clear-cut. A reasonable starting point would be that it is comparable with other acts of legitimation or authorization of status such as the granting of citizenship, or the granting of diplomatic recognition to a foreign government.
By such actions governments provide access to a range of rights which are in principle both defined and enforceable and, furthermore, relate to third parties. Employers, however, are very different from governments. The rights that they can grant to trade unions are solely with regard to transactions with themselves, and do not normally bind third parties. As a result, in the context of British labor law, the definition and enforcement of these rights is both more private and more problematic.
This elusive character of recognition rights has increased with the decline of industrial agreements in Britain. Forty years ago, the granting of recognition to a union would, for the great majority of workplaces, imply at very least conformity with the appropriate industrial agreement. With this conformity would come not only substantive rights to such things as pay and hours minima, but also procedural rights to union representation, both in individual disciplinary procedures and in collective procedures to vary the agreements.
Today, with a few exceptions (such as in the electrical contracting, construction, and knitwear industries) such agreements have largely disappeared. They now cover only a small proportion of the minority of British employees who are still covered by any sort of collective bargaining (Cully & Woodland, 1998). For nearly 70 per cent of all those covered by collective bargaining, and for over 80 per cent of all those covered within the private sector, bargaining is conducted not by sector or industry, but at the level of the individual enterprise, or of some subordinate part of it (Brown et al. 2000).
Bargaining at the level of the enterprise does not necessarily precede on the basis of formally defined recognition rights. The law does not require a recognition agreement to be in writing. Formal acknowledgement of a union’s rights often amounts to little more than the specification of its role in a grievance or discipline procedure, or giving it a named role in consultation procedures. There may be no written document indicating that a union has negotiation rights on specified issues.
Even where a union plays a substantial role of representation and bargaining within an enterprise, there may be few clues to such an entitlement from anything that has been written down. Whether or not anything is written down, the status granted to a union by an employer is not a black-and-white issue. It is, as we see further below, a matter of degree. The depth of trade union recognition granted by an employer depends, in part, upon the scope of bargaining, which is another way of describing the range of issues on which bargaining is permitted (Clegg, 1976).
Other aspects of the depth of recognition include the employer’s predisposition to make concessions during collective bargaining, the facilities that are offered to trade unions, the extent to which the bargaining relationship is formalized, and the extent to which the employer communicates with employees other than through union channels. The mere fact that an employer has granted union recognition tells one little about the practical value of that to the trade union in terms of effective collective bargaining. There are various legal concepts of recognition, the meanings of which depend on the purpose they are meant to serve.
Recognition may be a passport not just to collective bargaining but to certain statutory rights. If an employer voluntarily recognizes a union, it comes under a statutory obligation to consult representatives of that union before making certain redundancies; where there is a transfer of the undertaking; before contracting-out of the state earnings-related pension scheme; and in relation to health and safety matters (Deakin & Morris, 2001). Recognition also entitles the union to claim disclosure of information for collective bargaining purposes, and entitles union members to time off for certain activities.
In these contexts, ‘recognition’ refers to ‘the recognition of the union by an employer, or two or more associated employers, to any extent, for the purposes of collective bargaining’. Collective bargaining is defined as ‘negotiations relating to or connected with’ a range of matters grouped under seven categories and including, inter alia, terms and conditions of employment; the physical conditions of work; engagement; termination; allocation of work; discipline; trade union membership; trade union facilities; and machinery for negotiation or consultation (Trade Union and Labour Relations (Consolidation) Act 1992, s. 78).
It is sufficient that the employer negotiated with a union on any one of these matters for the union to be recognized in this sense. With the passage of the 1999 Act, an additional definition of recognition was needed, one which would identify those matters over which the employer would have a duty to bargain. Essentially, this means that the scope of matters over which statutory recognition arises are narrower than the range of matters which the law associates with the practice of voluntary recognition.
Thus, the nature of the power relationship between the employer and the trade union will continue to be highly relevant in determining the scope and extent of bargaining, just as it was prior to the coming into force of the new procedure. There are several other respects in which the new statutory right to recognition is tightly circumscribed. In particular, an application for statutory recognition can only be lodged in respect of bargaining units over which there is not, already, a voluntary recognition agreement.
More specifically, a union which is, itself, already recognized over any one of ‘pay, hours or holidays’ (emphasis added) (Trade Union and Labour Relations (Consolidation) Act 1992, Sched. A1, para. 35(2) (b)) is apparently barred from bringing a claim for statutory recognition in respect of the relevant bargaining unit. Nor can a union use the statutory procedures to challenge a rival, incumbent union, unless that union is non-independent, and even then, the procedure for statutory derecognition is highly complex (Trade Union and Labour Relations (Consolidation) Act 1992, Sched. A1, Part VI).
At first sight, the new procedure enshrines a right to recognition over pay, hours and holidays for unions which can show that they have majority support in the relevant bargaining unit. On closer inspection, this right is far from universal since it only arises in respect of bargaining units where either no union is recognized or where the matters over which recognition has been conceded do not cover any part of the statutory core of ‘pay, hours and holidays’. Moreover, it is in essence a right to invoke a procedure rather than a right to achieve a particular outcome.
An employer can avoid the imposition of a statutory order by making a voluntary agreement at one of a number of stages within the recognition procedure. If this occurs, the union can hold out for bargaining over the statutory core, knowing that, if it can show majority support in a ballot or otherwise, the CAC must grant it a declaration of statutory recognition. However, the content of statutory recognition is then dependent on the remedies which are made available against a recalcitrant employer.