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Collective bargaining

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The right of workers to collectively bargain with employers for a "fair day's wage for a fair day's work" is regarded as a fundamental right in common law, by the European Convention on Human Rights article 11, and in international law. Historically the UK had, however, left the procedure for making collective agreements, and their content, largely untouched by law. This began to change from 1971, though by contrast to other countries in the Commonwealth, Europe, or the United States the UK remains comparatively "voluntarist". In principle, it is always possible for an employer and a trade union to come voluntarily to any collective agreement. Employers and unions would usually aim to develop an annually updated wage scale for workers, fair and flexible working time, holidays and breaks, transparent and just procedures for hiring or dismissals, fair and jointly administered pensions, and a commitment to work together for the enterprise's success. In 2010, around 32 per cent of the UK workforce was covered by a collective agreement, leaving around two-thirds of the British workforce with little influence over the terms of their work.

Traditionally, if workers organise a union, their last resort to get an employer to the bargaining table was to threaten collective action, including exercising their right to strike. In addition, the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 Schedule A1 contains a statutory procedure for workers to become recognised for collective bargaining. To use this procedure, first, a trade union must be certified as independent and the workplace must have a minimum of 21 workers. Second, there must not already be a recognised trade union. This caused particular problems in R (National Union of Journalists) v Central Arbitration Committee as the Court of Appeal held that a recognised union which lacked any significant support could block the bargaining claim of a union with support. Third, the union must identify an appropriate "bargaining unit" for a collective agreement, which a government body named the Central Arbitration Committee (CAC) can verify and approve. On the union's proposal, the CAC must take into account whether the proposed bargaining unit is "compatible with effective management", as well as the employer's views and the characteristics of the workers. The CAC has broad discretion, and may only be challenged by an employer under the general principles of natural justice in administrative law. In R (Kwik-Fit (GB) Ltd) v CAC the Court of Appeal found that the CAC's determination that the appropriate bargaining unit was all of Kwik Fit's workers within the M25 London ring road. The union's recommendation is the starting point and the CAC is entitled to prefer this over an employer's alternative, especially since the employer will often attempt to define a larger "unit" so as to limit the likelihood of union members holding greater majority support. Fourth, once the bargaining unit is defined, the CAC may be satisfied that there is majority support for the union to represent the workforce and will make a recognition declaration. Alternatively, fifth, it may determine that the position is less clear and that a secret ballot is in the interests of good industrial relations. Sixth, if a ballot takes place both the union and the employer should have access to employees, and be able to distribute their arguments, and threats, bribes or undue influence are forbidden. Seventh, when a vote takes place the union must have at least 10 per cent membership, and win 50 per cent of the vote, or least 40 per cent of those entitled to vote. If the union wins a majority, the eighth and final step is that if the parties do not reach an agreement the CAC will regulate the collective agreement for the parties and the result will be legally binding. This contrasts to the basic position, under (Trade Union and Labour Relations (Consolidation) Act) TULRCA 1992 section 179, which presumes that collective agreements are not intended to create legal relations. The long, problematic procedure, was partly based on the model of the US National Labor Relations Act 1935, but because of its cumbersome nature it strongly encourages the parties to seek voluntary agreement in the spirit of cooperation and good faith.

Though most collective agreements will come about voluntarily, the law has sought to ensure that workers have true freedom of association by prohibiting employers from deterring union membership, and by creating positive rights for members. First, the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 sections 137-143 make it unlawful for employers, including agencies, to refuse anyone employment on grounds of union membership. The courts will interpret the legislation purposively to protect union activities, with the same strictness as other anti-discrimination laws. Second, TULRCA 1992 sections 146-166 state that workers may not be subject to any detriment or dismissal. For example, in Fitzpatrick v British Railways Board the Board dismissed of a lady who had been a member of a Trotskyist group (which promoted international socialism). The Board justified this on the ground that she had not told the employer about having previously worked for the Ford Motor Company, and so for ‘untruthfulness and lack of trust’. Woolf LJ held that this was not the true reason - Trotskyism was the issue. The dismissal was unlawful under section 152. Given the technicality of the legislation, the most important case is Wilson and Palmer v United Kingdom, where Wilson's pay was not increased by the Daily Mail because he wished to remain on the union collective agreement, and Palmer's pay was not put up by 10 per cent because he would not consent to leaving the union, the NURMTW (National Union of Rail, Maritime and Transport Workers). The European Court of Human Rights held that any ambiguity about protection in UK law contravened ECHR article 11 because,

“    the essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests.... employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory.    ”

In principle, like any victimisation case in discrimination law, ‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment’. If the UK statutes are not updated, the Human Rights Act 1998 section 3 requires interpretation of the common law, or statute, to reflect ECHR principles. More specific legislation, with the Data Protection Act 1998 sections 17-19 and the Employment Relations Act 1999 (Blacklists) Regulations 2010, penalises a practice of recording or blacklisting union members, and potentially leads to criminal sanctions for employers and agencies who do so.

Third, union members have a right to be represented by union officials in any disciplinary or grievance meeting under Employment Relations Act 1999 sections 10-15. This can be particularly important when a worker is in trouble with management. Fourth, an employer must permit officials of independent trade unions, which it recognises for collective bargaining, to a reasonable amount of time off to fulfill their role. Also, union members have a right to a reasonable amount of time off during work hours also to participate in meetings about agreements with the employer, or voting for elections. An (Advisory, Conciliation and Arbitration Service) ACAS  Code of Practice sets out the general guidelines. A final "right" of a worker is that under TULRCA 1992 he or she may not be compelled to become a union member in what used to be called closed shop arrangements. Collective agreements had required that employers did not hire anyone who was not a union member. However, the European Court of Human Rights decided in 1981 that "freedom of association" under article 11 also entailed "freedom from association". This shift in the law coincided with the start of a Europe-wide trend toward falling union membership, as the closed shop had been the main mechanism to keep up union support, and thus collective bargaining for fairer workplaces. The ECHR does not, however, prevent unions pursuing fair share agreements, where non-union members contribute to union fees for the services they get for collective bargaining. Nor does it prevent collective agreements that would automatically enroll staff in the trade union, as happens under the Pensions Act 2008, with the right for the worker to opt-out if they chose.


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