Citizenship and Democracy in Industrial Relations: The Agenda for the 1990s?
| Date | 01 March 1992 |
| Published date | 01 March 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01873.x |
LEGISLATION
Citizenship and Democracy in Industrial Relations:
The Agenda for the
1990s?
Michael
Ford”
1
Introduction
Last July, the Government presented a Green Paper to Parliament which proposed
further reform of labour relations law.’ Although no Employment Bill was referred
to in the Queen’s Speech,* the Government made it clear that they do intend
eventually
to
implement in
full
the programme of reform in the Citizen’s Charter,3
which will include legislation based on some of the proposals in the Green Paper4;
but at the time of writing no Bill has been p~blished.~ In this article I want
to
discuss the Green Paper proposals, not only because it would be foolish to suppose
that the Tories may not win the forthcoming election, but also because they reveal
some of the conceptions that underlie the Government’s political thinking in general.
I shall begin with a short account of the Government’s envisaged reforms, before
considering certain of them in greater detail.
Turning first to the stated aims of the proposals, the Green Paper talks
of
the
Act consolidating the objectives behind the legislation passed over the last eleven
years, which are said to have been threefold:
(i)
to safeguard the democratic rights of trade union members within their
unions;
(ii)
to establish a fair balance of bargaining power between employers and trade
unions; and
(iii)
to
protect employers and employees alike against abuses
of
trade union power
such as the closed shop and the flying picket which both damage the economy
and are offensive in terms of personal freedom.6
The Government see no reason
to
doubt that, on the one hand, the law has been
effective in meeting these goals and that, on the other, its legitimacy is assured:
‘it
is now generally accepted both by employers and by employees that the law has
a legitimate and necessary role to play in protecting businesses, jobs, the individual
and the community as a whole against the abuse of industrial power.” But the
*Faculty of Law, University
of
Manchester.
I
am very grateful to Professor Martin Loughlin and Dr Anthony Butler for their comments and assistance.
Any errors,
of
course, remain mine.
Department of Employment,
Industrial Relations
in
rhe
1990s
(London: HMSO,
1991)
Cm
1602.
I
shall refer
to
this document hereafter as the ‘Green Paper.’ For the relevant discussion in Parliament,
see HC Deb vol
195,
cols
1165-1 178.
HC Deb
vol
198,
cols
5-7.
HM Government,
The Cirizen’s Charrer
(London: HMSO,
1991)
Cm
1599.
On p
46,
the Government
refer to their proposed reform of industrial relations law.
See HC Deb vol
198,
col
6
in the Speech, and see John Major’s speech at cols
31-32.
The Prime
Minister was reported as having specifically identified eight Bills
to
be
introduced after the next election,
including one based on the Green Paper
(The Independent,
I
November
1991).
5
Comments have, however, been invited and received on the proposals.
6
Green Paper, para
1.17.
7
Green Paper, para
I.
19.
I
2
3
4
The Modern Law Review
55:2
March
1992 0026-7961
24
1
The Modern Law Review
[Vol.
55
Government go on to say that
it
needs to be ‘reviewed regularly to avoid the risk
of its once again falling out of line with the needs of a modern economy.’n The
principal labour market changes which they see the reforms as responding to and
facilitating are the decline in collective bargaining, the growth of individual pay
settlements and the growing interest in ‘the more orderly and peaceful conduct of
industrial
relation^.'^
The proposed Act
will
‘build on the achievements of the last
decade and
. .
.
carry forward the process of modernising British industrial
relations.
’lo
The Government then put forward numerous specific proposals for achieving these
ends, which can
be
divided into two general categories. First are those most obviously
concerned with controlling trade unions’ external action. Perhaps most unusual among
these is the right to be accorded to members of the public, here referred to as
‘citizens,’ to bring an action to restrain unlawful industrial action affecting the public
services’ sector.” The Green Paper
also
includes, however, a number of measures
which can be seen as most centrally aimed at giving outsiders, or more specifically
employers, additional rights against unions. There are, for example, to be stricter
rules on balloting for industrial action:
full
postal voting should normally be used
if
more than
50
members are entitled to vote; the ballot should be overseen by an
independent scrutineer; and the union will have to supply the employer with
information on the ballot, including a copy of the questions to be asked of
members.
12
Similarly, the Government propose a new requirement of seven days’
notice
in
writing to employers of any industrial action which the union is to take
following a ballot, identifying which workers are to take part in the action and on
what day it will begin.13 Failure to comply with these rules will, of course, deprive
the unions of their immunity against civil proceedings. Although, clearly, any laws
along these lines would affect the internal organisation of unions
-
an outcome
that would no doubt be intended
-
this is achieved principally by conferring legal
remedies on non-members. In this light, the law can be understood as seeking
substantively to delimit what is the legitimate method of union action, yet at the
same time leaving the discretion to enforce those limits on private parties.
Also in this category should be included a further proposal in the Green Paper:
the presumption against the legal enforceability of collective agreements is to be
reversed.I4 While a reform of this nature does not set out any necessary content
to the collective bargain, and thus does not compulsorily delimit trade unions action
in
the same way
as
the other proposals, it could have a similar effect since an employer
might well have additional legal rights from contract to restrain union action. Again,
the rights against unions are left in private hands, but here there is no automatic
substantive right that vests in any employer in certain circumstances.
A
law to this
effect plainly could result
in
an increased legalisation in the form of collective
agreements, and generate a new body of law on the contractual duties the parties
8 Green Paper, para 2.3.
9
Green Paper, paras 2.3-2.7.
10
Green Paper, para 2.8.
I
I
Green Paper, ch
4.
12
Green Paper, ch 3. A failure
to
comply with the rules
on
balloting results in the union losing
its
tort
immunity (see Trade Union Act 1984,
s
10).
Following the Employment Act 1988,
s
I,
a member
of a trade union also has a right
to
an appropriate order if the union takes industrial action without
the support of a correctly held ballot.
Green Paper, ch 3.
In
the case of repeated one-day strikes, a separate notice would
be
required each
time strike action
is
taken (p
13).
Green Paper, ch 8. For the current position, see Trade Union and
Labour
Relations Act 1974,
s
18.
13
14
242
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