The Significance for Employees of the Decline in Trade Union Recognition and Collective Bargaining - Term Paper Example

Assess the significance for employees of the decline in trade union recognition and collective bargaining Introduction The continuous development of different working structures to accommodate the modern business environment has rendered the complex area of employment law a legal minefield. The significant variances in contemporary working relationship structures have compounded the need for legal certainty whilst simultaneously ensuring that justice is served in individual cases to address employee rights. In the UK, the symbolic importance of the trade union has been the ability of the union to spearhead the redress in the inherent imbalance between employer and employee in employee relations particularly in addressing employee grievances (Rose, 2008:125). Indeed, Rose refers to the assertions of leading labour historian Pelling that: “for better or for worse, the structure of present day British trade unionism can be understood only in terms of its historical development” (1992, p.1, in Rose, 2008:125). However, Brown and Nash argue that the end of the 20th century has seen a marked decline in collective bargaining (2004). Moreover, in considering the rationale and significance of this for employee rights within the workplace, Brown and Nash compare workplace employment relations surveys from 1998 and 2004 to assess how far this has changed during economic growth and sympathetic legislation era (2004). In undertaking this research, Brown and Nash conclude that the collective bargaining has continued to fall and often in small firms and private sector (2004). Accordingly, this points to the continued importance of union recognition for public sector employees. Additionally, Gennard and Judge highlight the point that the decline in trade union recognition and collective bargaining is correlated to the interrelationship with declining memberships (2005). This in turn has left some commentators to argue that New Labour’s policies had distinct parallels with Thatcherism in binding trade unions, which cemented the trend of decline in recognition and collective bargaining (Chadwick and Heffernan, 2003: 49). The declining membership of trade unions clearly has implications for employee relations and has fuelled debate as to the continued significance of collective bargaining and the role of unions in relation to employee rights. Moreover, the decline of union recognition has propagated academic debate with regard to causality in union decline. On the one hand, Brown and Nash point to the relationship between economic growth and the growth of alternative employee oriented legislative initiatives (2004). Whereas, Chadwick and Heffernan suggest that the New Labour refusal to reverse Thatcher’s binding of the trade union cemented their declining importance in employee protection. The focus of this paper is to critically evaluate the decline of union recognition and the concomitant impact on employee relations. To this end, it is submitted at the outset that the decline in recognition and collective bargaining is inherently complex and whilst clearly raising implications for employee rights, does not necessarily result in an employer biased workplace particularly in light of continued legislative reform in employment law. As such, it is submitted that the impact for employees as a result of the decline in union recognition and collective bargaining is inherently dependent on the type of organisation, industry sector and particular position of an employee within the organisational framework (Strange et al, 2007:287). This proposition is further supported by the arguments of Pollert, who suggests that the decline of union protection is particularly detrimental to low paid non-unionised employees, which points to a public sector/private sector distinction (2008). Accordingly, in evaluating the debate pertaining to the decline in collective bargaining and trade union recognition, I shall firstly address the central legal provisions governing recognition and collective bargaining and how the current legislation protects employees in section 2. In section 3 I shall consider the debate in relation to the reasons for decline in union recognition and collective bargaining and how this impacts employee rights in addressing grievances within the workplace. Finally, in Section 4, I shall evaluate the argument that the risk to employee rights due to the decline in union recognition and collective is buttressed by the growth of employee oriented legislation. Section 2: Law Governing Trade Union Recognition & Collective Bargaining Notwithstanding the suggestion that the failure of New Labour to reverse Thatcher’s wave of anti-union legislation has cemented the decline of union recognition and collective bargaining, Strange et al posit that the New Labour government reduced hostility towards trade unions (2007:287). This evidenced by the relevant law applicable to trade union recognition is the Trade Union and Labour Relations (Consolidation) Act (1992), The Employment Rights Act 1999, The Trade Union Recognition (Method of Collective Bargaining) Order 2000, The Employment Rights Act 2004 and the Code of Practice on Access during Recognition and De-recognition Ballots 2005. Furthermore, the independent Advisory, Conciliation and Arbitration Service (ACAS) have also implemented codes of practice as aids to management of trade union issues in the workplace. Although these codes are not mandatory, adherence to the principles of the codes are considered by the Central Arbitration Committee (CAC) in the event of a dispute between employers and unions (paragraph 3 of ACAS Code of Practice 2). However, irrespective of the fact that the return of a Labour government reduced “outright political hostility” to trade unions; Strange et al assert that “there remained a government ethos of praising and encouraging labour flexibility” which was intrinsically intertwined with political objectives of market liberalisation (2007:282). This proposition is supported by the findings of Gall’s research in “Trade Union Recognition in Britain: Is a Corner Being Turned?”, that whilst the legislation which renders it extremely difficult for employers to avoid TU recognition, in reality from an economic perspective most employers preferred to avoid recognition and negotiation (2005). Indeed, Strange et al highlight the point that notwithstanding Labour’s move towards removing Thatcherite rigidity with regard to the unions, Labour’s policies towards increased market liberalisation and economic expansion ultimately took precedence (2007). As such, “most employees did not feel an economic pressure to join a union, especially if membership was frowned upon, as was the case in much of the private sector” (2007:287). This correlates to Brown and Nash’s argument that the correlation between economic expansion and increased employee oriented legislation contributed to the decline of union recognition and collective bargaining and indeed, memberships of unions (2004). Moreover, if we consider the legislative framework, Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992, (inserted by the Employment Relations Act 1999 and subsequently amended by the Employment Relations Act 2004) sets out the statutory procedure for recognition of trade unions. Where an employer and trade union fail to reach an agreement on recognition voluntarily, the statute provides for the trade union to apply to the CAC to decide whether it should be recognised. If this takes place, then the employer is subject to the CAC rulings, however notwithstanding the pro-union legislative stance, in reality the economic backdrop of the organisational framework is the overwhelming influential factor in the employer recognition of trade unions and trade union memberships (Rose, 2008). For example, Strange et al indicate that “just as success bred success, decline was a disincentive for some people in some sectors of the economy to join a trade union” (2007:288). This is further evidenced by the fact that trade union recognition can result in collective bargaining agreements, which are often perceived as having cumbersome implications for employers in relation to employment policy and practice (Pitt 2007). For example, under the current legislative framework, Section 181 of the Trade Union and Labour Relations (Consolidation) Act 1992 imposes a general duty on employers to disclose information required by unions for all stages of collective bargaining. Furthermore, the ACAS code sets out more detailed requirements and provides guidance on the type of information that can be requested for the purpose of disclosure. Under the codes, the information that can be disclosed ultimately depends on the circumstances of negotiations and the code further provides a non-exhaustive list of information that should be disclosed if requested in certain circumstances. These are as follows: 1) Pay and benefits – for example pricing structure of payment systems, grading, sex and hours, 2) Conditions of Service – recruitment, redundancy and transfer of business, 3) Manpower – numbers employed according to grade, age location and sex, work methods, materials 4) Performance – productivity and efficiency data; and 5) Financial information. Furthermore, the CAC is guided by the Trade Union Recognition (Method of Collective Bargaining) Order 2000 through which it can impose on an employer and union, a legally binding method of conducting collective bargaining. Accordingly, even if a company doesn’t want to get involved in bargaining it can be required to do so by the CAC (Pitt, 2007). Moreover, the requirements and issues regarding collective bargaining are the same as those applicable to collective bargaining under voluntary recognition. The main difference is that under the statutory procedure, an employer would be forced to accept recognition and is exposed to being bound to unfavourable terms within established time limits. Therefore from an employer’s perspective, trade union recognition and collective bargaining clearly remains a contentious administrative issue and the studies of Brown and Nash (2004) and Strange et al (2007) suggest that the degree of development in the private sector in economic expansion has provided a disincentive to employees in joining unions and entering into collective bargaining agreements with employers. Section 3: Causes of Decline in Union Recognition and Collective Bargaining The previous section highlights that notwithstanding the Labour government’s attempts to address the imbalance caused by Thatcher’s anti-union legislative agenda, in reality the market liberalisation policies of New Labour have contributed to a continued decline in union membership and collective bargaining particularly in the private sector. A significant element of this is the changing nature of employer/employee relations with the move towards addressing organisational integration through operations management and implementation of loyalty structures (Rose, 2008:27). To this end, the improvement of relations between employer and employees has seen a shift in management culture whereby optimum organisational performance is viewed as being intrinsically dependent on employee relations (Rose 2008:27). In supporting this proposition Rose expressly refers to the statement of Salamon that “the organisation exists in perfect harmony and all conflict, not only industrial relations conflict is both unnecessary and exceptional” (1992:31,in Rose 2008:27). This in turn relates to Karash’s concept of the learning organisation, which is an evolving notion which has become increasingly incorporated into the modern company and multinational philosophy. In its simplest form, Richard Karash propounds the ideology underlying the learning organisation: “A learning organisation is one which people at all levels, individuals and collectively are continually increasing their capacity to produce results they really care about” (Karash, R. 1995). The ideological underlying principle behind the learning organisation is that it produces a flexible workforce with a shared vision, which in turn ensures internal stability within an organisation. Mike Wills defines the learning organisation as a “group of people who work together” (Wills, M. 1998). He further defines it as a “company, corporation, firm, enterprise or institution, or part thereof, whether incorporated or not, public or private, that has its own functions and administration. For organisations with more than one operating unit, a single operating unity may be defined as an organisation” (1998). Within the contemporary business framework, personnel management theory highlights the importance of efficient employee relations and collective employee morale in achieving specific goals (Argyris, C 1999). As such, Pedler argues that the learning organisation theory is central to this (Pedler, M & Aspinwall, K., 1998). Garvin further asserts that organisational learning involves three stages. Firstly is the notion of “cognition”, which is the learning of new concepts, development of skills, which relates to employee performance (Garvin, D. 2000). This is further demonstrated in Figure 1 below, which illustrates Garvin’s model of the learning organisation: Figure 1 GARVIN’S MODEL OF THE LEARNING ORGANISATION (David A. Garvin 2000), “Learning in Action” Harvard Business Press). With regard to the skills stage of Garvin’s learning organisation model, it is imperative for individuals at all levels within the organisation’s hierarchy to have problem solving capabilities, thereby highlighting the interdependency of employee performance on optimum organisational performance (Garvin, D.A. 2000). Pedler further argues that an individual must firstly improve self development, which can then be distinguished between actual and desired situations in problem solving scenarios (Pedler, M., & Aspinwall, K., 1998). Therefore this would suggest that the interrelationship of economic expansion in the private sector, employee sympathetic legislation and a shift in management culture towards employee co-operation initiatives has actually resulted in the strengthening of an employee’s position in the contemporary workplace notwithstanding the decline in union recognition and collective bargaining. In turn, this supports Brown and Nash’s argument that the economic backdrop of an organisation is a key factor in union membership (2004). However, whilst the wave of employee oriented legislation may theoretically operate towards addressing the potential negative impact on employee rights as a result of declining union recognition; it is submitted that such a proposition arguably ignores the potential ramifications for employees in the public sector. Indeed, McIllroy suggests that a significant causal factor has been the continuing pattern of increases in employment legislation and practice and therefore continuing drop in trade union membership. To this end, McIllroy suggests that “the drop in membership has borne most heavily on unionate unions and rendered trade unionism very much a public sector phenomenon” (2005: 387). This public/private dichotomy argument is further supported by Strange et al’s following observation: “so by the early years of the twenty first century, the rate of trade union decline had become slow but appeared not to have been halted, let alone reversed. It remained the case that disabled, female and low-paid male labour in unions, secured higher pay (“the trade union mark-up”) and better conditions of work than did non-unionised labour. British trade unionism retained a core membership, especially in the public sector of the economy” (2007:288). Additionally, Pollert’s review of the Un-represented Worker Survey (2004), which considered the perspectives of low paid non unionised workers suggested that the lack of union recognition and collective bargaining has exposed low paid workers to an unfair and ineffective framework for addressing conflict resolution (2008). 4. Conclusion The above analysis clearly demonstrates a continuing trend in the decline of union recognition, collective bargaining and trade union membership. Additionally, there is clearly an academic and empirical consensus that part of the reason is economic and relates to the changing management culture towards an integrative organisational framework that promotes employee motivation and loyalty. In conjunction with a legislative agenda that has continued to implement employee sympathetic legislation; these arguments would suggest that the contemporary employee’s position is enhanced notwithstanding declining union recognition on grounds that the changing work culture and legislative framework facilitates increased mutuality in the employee relations. However, on the other hand, Pollert’s recent review suggests this argument is inherently dependent on the nature of the industry and organisational framework. To this end, Pollert’s review suggests that beyond the narrow arguments of a public/private dichotomy in union recognition and membership, the wider issue is that declining union membership and union recognition still exposes low paid non-union employees, particularly in the public sector (2008). Moreover, Pollert’s review suggests that the position of the low paid non union employee remains unsatisfactory in resolving disputes notwithstanding employee sympathetic legislation (2008). Indeed, Pitt highlights that whilst the reshaping of company/worker relationships arguably creates the need for a pragmatic case by case approach, the balance between the need for legal certainty and “justice” is ultimately dependant on the particular area of the employment relationship. It is submitted that this perpetuates complexity and uncertainty as to the parameters of existing fundamental legal principles in addressing employer/employee disputes and in turn presses the continued importance of union recognition and collective bargaining for certain categories of employees. Bibliography Argyris, C. (1999) On Organisational Learning. Blackwell Publishing Brown, W. and Nash, D. (2008). What has been happening to collective bargaining under New Labour? Interpreting WERS 2004. Industrial Relations Journal, 39:2, pp 91-103. Chadwick, A., & Heffernan, R. (2003). The New Labour Reader. Wiley-Blackwell. Gregory Gall, (2005) “Trade Union Recognition in Britain: Is a Corner Being Turned?” in the IRRA Proceedings 2005 of the 57th Annual Meeting/LERA Referred Papers available at www.press.uillinois/edu/journals/irra/proceedings2005/gall.html Accessed November 2009. Garvin, D.A. (2000) “Learning in Action” Harvard Business Press. Gennard, J., & Judge, G. (2005). Employee Relations. McGraw Hill Education. Karash, R. (1995) Why a learning organisation? Available at www.richardkarash.com, Accessed November 2009 McIllroy, J (2005). Trade Unions in Britain Today. Manchester University Press. Pedler, M., & Aspinwall, K. (1998) A concise guide to the Learning Organisation. Lemos & Crane . Gwyneth Pitt (2007). Employment Law. 6th Edition Sweet & Maxwell Pollert, A. (2008). Injustice at Work: How Britain’s Low-Paid Non-Unionised Employees Experience Workplace Problems. Workplace Rights, Vol. 13(3), pp 223-244. Rose, E. (2008). Employee Relations. Pearson Strange, J., Carnevali, F., & Johnson, P. (2007). 20th Century Britain. Pearson Wills, M. (1998) Managing the training process: Putting principles into practice. Gower Publishing Limited Legislation & Websites Trade Union and Labour Relations (Consolidation) Act (1992) The Employment Rights Act 1999 The Trade Union Recognition (Method of Collective Bargaining) Order 2000 The Employment Rights Act 2004 and the Code of Practice on Access during Recognition and De-recognition Ballots 2005 All UK legislation at www.opsi.gov.uk and UK Statute Law Database at www.statutelaw.gov.uk www.acas.org.uk www.cac.gov.uk www.berr.gov.uk Word Count: 2583 Read More