Employment Law and Trade Unions - Essay Example

Employment Law and Trade Unions INTRODUCTION Except for dramatic circumstances, as a consequence of wars, or drastic revolution, massive transfers of legal systems don’t longer take place. Rarely are there, in actual times, such dramatic legal gapes in a given country, that a whole sale transfer is needed, advocated and carried through, although this may partially occur as in Spain, when during the post Franco period the Italian Statute of workers Right of 1970 was often referred to in a elaboration of the Spanish Estatuto de los Trabajadores of 1980. Those occasions currently being care, references to foreign system, are in many countries not frequent for purposes of day to day practice. A historical and critical study of the labour movement movement has come to be recognized as a necessary and even vital part of research of human relations. Human nature is essentially the same the world over and “man is a social animal at all times” (Bates, April 1888) and in all places. It is this basic nature of man that controls and directs the organization and development of society in all its spheres of activity. The inevitable landmark of social advance has been the family , the tribe, the state and the world organisation. Further advances in world organisation have however to be made if man is to benefit from and not to be destroyed by the power of the atom. Different approaches may be made in this regard. But world organisation has persistently proceeded, ever since the industrial revolution in England, on the basis of social system subjected to industrial modes of production. One of the most fruitful approaches would, therefore to explore the possibilities of the dynamic forces that have already manifested themselves in modern industrial society (Fung, 2003). The industrial system has increased the inter dependence of people everywhere and it is constantly emphasising the ever-growing importance of the technique of cooperation. The trade union have, therefore become the greatest economic institution of our times and the future of democracy is closely bound up with the fate of trade unions. TRADE UNION The term ‘trade union’ is in constant and popular use, and it is usually clear when a body is or is not a union. However, a statutory definition is necessary to determine what organisations are eligible for the various rights and duties accorded such bodies. Thus s.1 of the “Trade union and Labour Relations (consolidation) act 1992 characterizes as a union, ‘an organisation(whether permanent or temporary) which….. consists wholly or mainly of workers of one or more descriptions and is an organisation whose principal purposes include the regulation of relations between workers of that description of those descriptions and employers or employers associations” (Trade Unions, n.d.). “The largest organization of trade union members in the world is the Brussels-based International Trade Union Confederation. it has approximately 309 affiliated organizations in 156 countries and territories today, with a combined membership of 166 million” (Wikipedia, 13 April 2008). PURPOSE OF TRADE UNION The trade unions have, therefore, become the greatest economic institution of our times and the future of democracy closely bound up with the fate of trade unions. The immediate objectives with which trade union have been formed in different parts of the worlds are essentially the same. The objectives and activities of trade unions may differ but general objectives are follows: To ensure the benefits of the worker from unemployment, ill health, old age and working environment. So that they can get professional training, legal advice and representation for member in trade union. To obtain for the workers various measures of social security. To regulate hours and other conditions of work in keeping with the requirements of the workers in the matter of health, recreation and other sectors. To establish industrial relation. To secure suitable legislative enactments for ameliorating the conditions of the workers and ensure the proper enforcement of legislation for the protection uplift of labour. Moreover, INTUC (1999) prescribes the more objectives of trade union: To establish an order of society which is free from hindrance in the way of all- round development of its individual membersTo promote, generally, the social, civic, and political interest of the working class. To secure an effective and complete organisation of all categories of workers” To secure speedy improvement of conditions of work and life and of the status of the workers in the industry. To secure a living wage for every worker in normal employment. INTERNATIONAL FEDERATION OF TRADE UNION The international federation of trade unions came into existence in 1901 as an international integration of trade union federations of different countries. It was an international association of socialist type with a network of national centers affiliated to it. Its position and influence were strengthened and consolidated through about 30 international trade secretariats working in collaboration with it. International federation of trade unions gave representation only to one national central organisation in each country having membership in various industries (Brown, and Sessions, 1998). The most ambitious 19th- century union, Robert Owen’s Grand National Consolidated Trade Union, collapsed in 1834, barely a year after its foundation, but the mid 19th century saw the first great expansion of trade unionism with the creation of federations of previously local organizations (Waterman, 2001). “The new model unions, as they were later to be called, consisted primarily of skilled craftsmen and combined efficient internal organization and a sound financial base with a cautious approach to industrial action. Typified by Amalgamated Society of Engineers, they began to build a nascent structure of collective bargaining with the masters, some of whom were keen to talk to spokesmen rather than numerous individuals. An agreed list of wage rates was thus determined in the brush making trade, for example, as early as 1805. Soon the Courts turned their attention to the new unions’ legal status. The first blow came in Hornby vs. Close (1867), when the court held them illegal as a restraint of trade. In a pattern often to be repeated In later years, this judgment adverse to the workers’ interest was soon redressed by legislation. Gladstone’s Trade Union Act 1871 adopted the liberalizing monitory recommendations of the recent royal commission on trade unions under chief justice Erle, rather than the majority views which sought yet more restrictions of workers rights. The act thus accorded the unions the power to enforce certain contracts and to hold property as well as providing for their voluntary registration with the registrar of friendly societies.”(History, n.d., p.3) Trade unions have played, and will continue to play, a vital role in determining economic and social developments. In democratic countries, trade unions are seen to exist and function as a matter of right. But certain legal restrictions are placed upon them, and they have not always been looked upon with favour by governments in power, even though they are not always ranged against governmental authority (Roche, 1999). In France and Italy, they have generally been openly and intensely hostile to existing governments. In the United Kingdom and Australia, trade unions are seen to oppose the government in power, sometimes even violently, although they never fail to proclaim that their loyalty to the nation is beyond question. In the Scandinavian countries, there is whole-hearted collaboration between labour and the government in power. After a century of struggle, in United Kingdom trade unions attained great authority in the post-war period in shaping the political, economic and social policy of the nation. At that time, hopes ran high in certain circles that the trade union movement in the United Kingdom. It would use its industrial power to coerce government to implement large-scale socialist programmes against private property. The government was not favourable enough to achieve in a hurry was proved by the return to power of the Conservatives in the fifties (Pike, O'Brien, and Tomaney, 2002). Labour, however continuous to retain a good portion of its hard-won influence and has now captured power. It shapes new legislation and the trade unions occupy a recognised place in the administration of existing legislation. They are represented on many a statutory board, tribunal and wages council, and the authorities managing coal-mines, railways, and other nationalised industries are greatly influenced by their advice (Lloyd, 2001). . CAPITALIST MODEL OF TRADE UNIONISM AND ITS EXISTENCE At present time, behind the grandeur and magnitude of billion dollar corporations in America are hidden millions of small businessmen. The American nation is hence essentially a nation of property holders. The majority of the people from the great middle class, both rural and urban, and they firmly believe in private property as a basic institution. Many a time American public opinion has supported labour in punishing forward its legislative and trade union programmers intended to curtail the abuses arising from unrestricted exercise of property rights by employers. But the movement any suspicion is roused that labour wants to do away with private property itself, instead of merely regulating its use, the public is found to be in open alliance with anti-union employers (Whitston, Roe, and Jefferys, 1999). In any case, the capitalist model of trade unionism, as exemplified in America, is of non-partisan type, adhering to the basic principles of wages consciousness, with maximum reliance on collective bargaining and a marked influence to ideological politics. FASCIST MODEL Fascism was introduced in Italy by Benito Mussolini in 1992.the social philosophy behind it is, in essence, a total contradiction of the democratic concept. Fascism declares that individual ends must be completely subordinated to social ends and that the individual must in all circumstances unquestionably obey the state and sub serve its aims. The Fascist labour Charter Act of 1926 prohibited both capital and labour from carrying on production. On that time strikes and lockout were forbidden (Nitsch, 2000). On that time there was no freedom of association for the employers and employees. CRITICISM The criteria for determining the success of the industrial policy is only through the index of industrial relations and the prevailing climate of industrial peace. If analysed on the basis, the policy has been partially successful and partly not. Trade union has a little influence to determine the industrial relations (Marsh, and Savigny, 2005). The Industrial dispute act which has introduced compulsory adjudication machinery as a method of settlement of disputes has destroyed the unity among the workers. The presence of a third party for settling industrial disputes has to some extent mitigated the urge of the workers to form strong unions with united organisations with the sanctions behind their demands. Unless and until this machinery is removed from the statute book, we cannot hope to have sound and strong organisations of workers such as trade union. Another point is while strikes should be the last weapon in the hands of the employees, the present day attitude seems to be indulge in the talk of strike even from negotiations stage before exhausting all other avenues for a peaceful settlement of disputes or differences between workers and employers (Miller, and Young, n.d.). This hampered the growth of trade union movement. And no effective Acts or law can be found for the trade unions members in this regard. In a country a promotion policy for the workers should be evolved by management in consultation with trade union. And for this national trade union should draw up a suitable programme for union officials and organisers. But in the activities of trade union till now there is no stipulation for workers in the segment of promotion. The trade union should be given the right to nominate the workers members of the works committee and a clear demarcation of the functions of the works committee and recognised union on the basis of mutual agreement between the employer and the recognised union will make for a better working of the committee. But trade union did not find any advantage to work effectively. We know that different acts are well-known for this purpose but no supreme law held for trade union till now. Others are the effective enforcement of statuary requirements of trade union about safety and equipment is inadequate. Trade union should take more interest in safety promotion. There are important provisions trade unions in Employment Discrimination Law in the United Kingdom which deal with discrimination by an employer on the grounds of union membership. But it does not form a logical code, and it lacks reliability. As a result workers of trade union can not find remarkable benefit by this act “The right to join a trade union is mentioned in article 23, subsection 4 of the Universal Declaration of Human Rights (UDHR), which also states in article 20, subsection 2 that ‘[n]o one may be compelled to belong to an association’. Prohibiting a person from joining or forming a union, as well as forcing a person to do the same (e.g. ‘closed shops’ or ‘union shops’), whether by a government or by a business, is generally considered a human rights abuse.” Wikipedia, (13 April 2008) The Equality Act 2006 has passed in 2006. But it did not attempt to codify, homogenize or shorten the complex and complicated provisions of anti-discrimination law: so here also we didn’t find any law by which trade union can work effectively for his members. “Unions should be free to organise, campaign, and to act collectively, and all workers should be free to join and act within those unions, provided they are prepared to accept the consequences of their actions” (Bloggers4Labour 31 August 2007). Trade Union Law and Labor Law provided sufficient guarantees for workers. But yet, Trade Union Law on October 27, 2001, demonstrated very clearly that the Government has no intention of improving the protection of worker and trade union rights in accordance with international principles. A worker who has suffered discrimination at work can enforce their rights by taking the employer to an Employment Tribunal. There are certain conditions that have to be fulfilled before this can happen, so it is generally recommended to seek advice from trade union before taking this type of action. But as we have no successful law, the workers generally don’t find proper advice or can not make it useful. The private entrepreneur has always been the ultimate goal of trade unionism. The methods adopted may be violent or constitutional; they may show sharpness. Such differences have, no doubt, given right to different schools of labour ideologies, different isms, each seeming to offer the essential solution to pressing problem of social disorder. This entitles condition to alter national trade union law on these issues. "Article II-111 (current Article 51) sets out the scope of the Charter. It is addressed to the 'institutions, offices, bodies and agencies of the Union' and 'to the Member States only when they are implementing Union law' (Heery, 2004). This Article goes on to provide that the Charter 'does not extend the field of application of Union law beyond the powers of the Union or establish any new power or tasks for the Union, or modify powers and tasks defined in other parts of the Constitution" (EUlawblog, 11 June 2007). “In the 286th Report of the ILO's Committee on Freedom of Association certain sections of the Trade Union Law (1992) were interpreted as contravening the principle of freedom of association The Committee requested that the PRC Government take steps to modify the relevant provisions of the Trade Union Law, but in its 310th Report it was observed that no action had been taken. The Committee's 316th Report in 1999 once again noted that no action had been taken by the PRC Government and reiterated its request for revisions to the Trade Union Law” (Global Labour Institute, 5 September 2007). The vital point is that Article 4 of the Trade Union Law dynamically prevents the configuration of independent trade union. Section 2 of Article 4 of the Trade Union Law (1992) stated that- “[t]he National Congress of Trade Unions formulates or amends the Constitution of Trade Unions of the People's Republic of China which shall not contravene the Constitution and other laws.” Again, Trade Union Law consolidates the trade union monopoly and prevents the establishment of trade unions independent from it. This restriction already existed in Article 12 of the Trade Union Law (1992) The extra credit of trade union is to struggle for ending of child labour practices, provide public education for children and bring of other benefits to working class families. But previous history of this privilege is not satisfactory. Many modern labour union lean to be expansionistic, and regularly seek to include broadly dissimilar kinds of workers to boost the influence of the union as a whole. But the number of these is low. “At present under the Constitutional Treaty, has no power to adopt laws on the regulation of the right to strike. Article III-210(6), current Article 136 EC, states that the EC's social policy powers as set out in that Article 'shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs'. There is indeed no EC legislation at present regulating such core aspects of trade union activity.” (EUlawblog, 11 June 2007). Following the amendments passed on October 27, 2001, this section of Article 4 remains untouched. As a result Article 4 retains the role of the National Congress of Trade Unions in calculating the in-house configuration and actions of all trade unions, and in subordinating these trade unions to the formation of Trade Unions of the PRC. “Under the 'General Principles' of the Constitution of Trade Unions (adopted by the 13th National Congress of Chinese Trade Unions on October 24, 1998) it is stated that: ''Guided by Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping's theory, the Chinese trade unions implement the Party's basic line of centering on the economic construction, upholding the Four Cardinal Principles and adhering to the reform and opening-up.” (Global Labour Institute, 5 September 2007) Following the revisions passed by the NPC on October 27, 2001, this provision was moved to Article 10, without any change in wording. But yet the passage of the revised Trade Union Law on October 27, 2001, demonstrated very clearly that the Government of the countries has no intention of improving the protection of worker and trade union rights in accordance with international principles (Boxall, and Haynes, December 1997). Freedom of organization and the right to arrange are basic human rights and are known as such in most of the world. The right of workers and employers to create and ... to join organizations of their own choosing without earlier approval is an important autonomous right. It has the same importance as the right to connect freely in the political globe and is closely related to basic political rights such as independence of appearance, of gathering, and from likelihood arrest. In fact, the exercise of freedom of association is not possible where basic political rights are dishonored. Therefore, the position of workers' rights in a country is a bell-whether for the status of human rights generally. ... suppressive regimes obviously effort to control trade unions; thus labour leaders are among the most common sufferers of repression (Bogg, 2001). Legal Development for the Protection of Members of Trade Union In the post-war years, unprecedented economic growth has been reflected by equally unprecedented gains in the material benefits enjoyed by workers- improved real wages, shorter weekly working hours, longer vacations, more holydays, and substantially more extensive gains in fringe benefits, higher material rewards for work done have been accompanied by fairly general greater job security and by(in a good number of European countries in particular) greater participation by workers in a decision-making. It is probably, at least in some countries, that quiet a lot of workers have also, at least until recently, improved their position in relation to the nature and control of their immediate work and work load. Work task themselves are difficult to evaluate but the(largely post-war) development of the behavioral sciences has pointed paths to successful new ways of doing work, though for variety of reasons this knowledge has not been widely utilized (Healy, 1999). Trade union in many countries has lost members over the last few years-substantially in the US and Britain-but membership is still commonly considerably higher than it was say, 25 years ago. Trade union influence in national life generally has followed much the same trend. In countries where union activity used to be mainly at the national or regional industry level but has become more decentralized, union has the enterprise. Union now faces severe challenges. Continuing high unemployment, the shift from old-established heavy industries to services and high tech industries (usually with smaller sized enterprises and often located outside traditional industrial areas), and the increase proportion of part time workers in the labor force, add up to difficult terrain for trade union activity. Amongst employers, the most substantial changes have occurred in the US. American employers have not heisted, in straitened economic circumstances, to demand concessions from their workers. A few have instituted two-tier wages and working conditions, engaging new workers on less favorable terms than those applied to existing workers. Some employers too have sought to discourage union membership amongst their employs (Naylor, January 1999). European employers generally have tended to remain on the defensive, though in Europe too there are numerous cases where individual employers have tightened up labor management to secure higher productivity. Another sign of the times has been the major initiative of the French central employer’s organizations, the CNPF, in 1984, in seeking a substantial lightening of legislated administrative constrains with a view to facilitating job creation. Until 1973 economic development permitted a considerable measure of fulfillment of worker’s expectations. At times, as in French in 1968; the Italian “hot autumn” of 1969; the strike waves in several countries in 1969 and 1970; and in the British mining strike of 1974; one could see a flexing of muscles as workers tested an existing social order, including sometimes the leadership of their own trade union. Indeed, though this chapter has, for convenience, treated the driving point in the post war years as 1973, an alternative structure might have been (Micco, and Ordoñez, October 2003): 1. 1948 to 1967, the years of economic growth; 2. 1964 to 1973, the year of social challenge; and 3. 1974 on, the year of economic difficulty. This structure was not, however, adopted here because , several countries were little affected-some almost untouched by the social and industrial relations disturbances of 1968-1972. The right of employers and workers to form and join organizations for collective representation and defense of their respective interests is recognized in most developing countries and often explicitly guaranteed in the constitution or legislation. However it must not be forgotten that historically speaking the liberal concept of ‘ freedom of association’ had originated in Europe from where it was transplanted to the countries situated in the Southern Hemisphere. The role of the ILO in the promotion of freedom of association in developing countries was and indecisive (Colgan, and Ledwith, October 2000). The real problem arising from the operation of employers’ and workers’ organizations in third world countries arising from the need to strike a balance between the role which these organizations play as representatives of their members’ interests (a role which is nowhere contested), and the role which they are expected to play as parties to national development policy. In this respect the problem affecting employers’ organizations and those affecting workers’ trade unions are by no means the same (Whyman, July 2002). This means that, in order to protect workers who are left outside the collective bargaining process, particularly all developing countries have enacted detailed labour legislation, setting out minimum standards for hours of work, annual and public holydays, maternity protection, safely and health, special condition for women and young workers, protection against the hardships arising from dismissal, etc. similarly, a large number of Third World countries have enacted legislation on minimum wages, either by fixing statutory minimum wages rates(in the Philippines) or by creating special wage boards, councils or committees for the fixing of minimum wages (most developing countries). Such substantive wage rates and working condition are conceptually and in their protective function not different from similar provisions contained in the labor legislation in the North (Slok, 2001). The big contract between the North and South lies in the extent to which such statutory provisions are enforced in practice. In many developing countries government authorities entrusted with the application of labor legislation, especially labor inspection services are insufficiently equipped with result that statutory labor protection is often not implemented in practice (Healy, and Kirton, September 2000). Freedom of association for trade union purposes: Freedom of association has special importance for workers as it is an essential means for them to defend their interests. The principle of freedom of association is mentioned in the constitutional provision of ILO. The basic instrument in this field is the freedom of association and protection of the rights to organize convention, 1984 which has been ratified by 97 states. This convention provides that ‘workers and employers, without distinction whatsoever, shall have the right to establish and to join organization of their own choosing without previous authorization (Kuruvillla, et. al., September 2002). The convention also provides that the organization should have the right to draw up their own constitution and rules, to elect their representatives and to organize their activities. The freedom action of trade union organization depends to a great extent on the civil liberties whish are recognized in each country. This was stressed in a resolution adopted in 1970 by the International Labor Conference. The convention also provides that trade union organization shall not be liable to be dissolved or suspended by administrative authority, that they shall have the right to establish federation and confederations, and that all such organization shall have the right to affiliate with international organizations. When convention no. 87 does not deal expressly with the right to strike, a case law on that matter has been progressively developed by the supervisory bodies. Concluding Remarks Comparativism is a frequently used method in Poland but this is a consequence of the co-existence of legal rules and concepts of the prewar and post-war systems, which clearly involves the difficulties of using concepts which were formulated upon the basis of an ideology and a context which is no longer present. In judgments themselves comparison plays a role only in exceptional cases, although in FR Germany the comparative method is recognized as a valid method of interpretation. For the success of a planned economy of a developing country, industrial welfare of a country must be delaminated (Pehkonen, and Tanninen, 1997). To achieve these, the state and the employees must take the trade unions fully into confidence and enable to secure for their members a fair share of the fruits of the industrial progress to safe guard them from the worst effect of technological unemployment and to promote full employment programmes that must override as far as possible even rationalisation sachems. If the social and political rights enjoyed by the workers in an absolute capitalist economy have to be curtailed or given up in the practice in the interest of national advance, the sacrifice or surrender must be brought about as a voluntary act, by educating the workers to realise that no policy would be formulated or implemented without prior and sincere consultation at all levels with workers' union and representatives weather in public or private sector. If real industrial democracy is to be achieved trade unions must be consulted on economic matters. It must therefore, be understood that legislation should be only one of the planks in helping the workers to cure their many ills. In the first instance it is necessary that labour as well as employers must be sufficiently well organised to solve differences by themselves, with public opinion and sanction behind their actions. They should build traditions and conventions for coming to terms by mutual negotiations and putting decisions into effect through the willing cooperation of both the parties. Legislation should underline the results achieved through such negotiations only to give them a legal status. Legislation should only form a gloss to the conventions already prevalent. In this, trade unions can play a constructive role not only in establishing good traditions and implementing laws based on them but also in making improvements on those laws. The formation of joint standing machinery in every industry and in every unit of industry can avoid industrial conflicts – major or minor. The general trend of various countries at present is towards the association of workers in the management of industries. It is necessary, if this is to yield profitable results, that the working class must be trained to comprehend the technical details of the problem facing them and equally to present their case in a scientific manner. Here, as anywhere else, there is the need for a strong, scientific and unified labour movement, which can speak with authority, not merely on the questions affecting the workers, but on all matters connected with industry. Until the trade union movement is as strong as envisaged above, workers’ participation in industry is meaningless, for the workers in reality might not be able to deal with the employers on ‘equal terms’. All the objectives of trade union can be achieved only by the coordination of the efforts of all trade union organisations throughout the world which represent the common man, and unless and until he is satisfied there can be no universal peace. The trade union movement must bestir itself in great task and it can do so only if it is united and based on strong foundations. References Bates, H. Henry. (Apr., 1888). Discontinuities in Nature's Methods. American Anthropologist, Vol. 1, No. 2 pp. 135-146. Bloggers4Labour (31 August 2007). Trade union freedom. http://www.bloggers4labour.org/labels/trade%20unions.jsp Bogg, L. Alan. (November 2001), the Political Theory of Trade Union Recognition Campaigns: Legislating for Democratic Competitiveness. 1-15. Boxall, Peter., and Haynes, Peter. (December 1997). Strategy and Trade Union Effectiveness in a Neo-liberal Environment. British Journal of Industrial Relations 35:4. 567-591. Brown, Sarah., and Sessions, G. John (1998), Jurassic Union man? 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