Co‐Determination in the Federal Republic of Germany: An External Perspective from the United Kingdom

DOIhttp://doi.org/10.1111/j.1467-8543.1987.tb00710.x
AuthorAlan C. Neal
Publication Date01 Jul 1987
British Journal
of
Industrial Relations
2.5~2
July
1987 0007-1080
$3.00
Co-Determination
in
the Federal
Republic
of
Germany:
An
External
Perspective from the United Kingdom
Alan
C.
Neal*
INTRODUCTION
A few years ago, while still firmly wedded to the notion, propounded by
Schmidt (1981),
of
a ‘multi-axial approach’ to comparative studies, I put
forward the suggestion (Neal, 1982) that, viewed on an axis of institutional
participation of workers in enterprise decision-making, the United King-
dom’s system
of
what Kahn-Freund (1977) categorised as ‘dynamic’
collective bargaining and the Federal Republic of Germany’s co-determina-
tion model represented opposite ends
of
a spectrum. Between these two
extremes could be placed, for example, the Italian
commissioni interne
;
French experience with
comitis d’entreprise
and
commissions mixtes
;
and
Swedish
medbestummande.
Although now harbouring some feelings
of
disillusionment with the multi-axial method, this author adheres to the view
that, as regards the subject-matter
of
this report, the United Kingdom and
the Federal Republic remain, if not at the extreme ends
of
an axis, certainly
widely separated in their approaches to formal institutions and means
of
regulation for employee participation in decision-making within enter-
prises. That view, indeed, has been substantially strengthened during the
course
of
preparing this report.
The structure of the British system of collective bargaining, as described
in Bain (1983), Brown (1981) and DanieVMillward (1983), is well known,
and has been recognised as a unique historical product.
As
noted by the
Donovan Commission (1968), ‘formal’ and ‘informal’ systems co-exist in a
context of legal abstentionism, while collective representation of workers
for the purposes of bargaining operates through trade union structures
centred upon the workplace. In spite of the fact that the Donovan analysis
was based largely upon experience in the engineering industry, and although
more recent developments have been noted by Brown and Terry (1978) and
by Treu (1985) in the direction
of
centralisation for bargaining within large
single-employer multi-plant undertakings, the basis
of
the picture painted
by the Royal Commission remains valid for present purposes.
A
number
of
*Senior Lecturer in
Law,
University
of
Leicester, United Kingdom.
228
points follow from this.
First, the concentration of bargaining upon the level
of
the workplace
reflects the ‘grass-roots upwards’ character of British collective labour
organisations. The role and long-standing significance of the shop steward in
workplace bargaining has been stressed by McCarthy
(1966),
McCarthy/
Parker
(19681,
and many other commentators, while the more recent
developments of co-ordinating shop steward combines and the like have also
received attention from LernedBescoby
(1966)
and Willman
(1981).
This
decentralised character of British collective bargaining stands
in
stark
contrast to many continental European systems, where ‘top organisations’
on both the employer and the employee sides have influenced the pattern
and the overall regulation of bargaining. Thus, even though one may speak
in the United Kingdom of the T.U.C. and the C.B.I. being ‘representatives’
of respectively labour and industry, this is in no way the same kind
of
‘representative’ as is to be found
in,
for example, France, Sweden or the
Federal Republic.
One consequence of this absence
of
‘top organisations’ along the lines of
the continental model, with its consequent co-ordination and control
of
the
collective bargaining function, can be seen, as is clear from Schmidt and
Neal
(1984),
in
the role and status of collective agreements in the United
Kingdom.
In
sharp contrast to the situation in the Federal Republic, these
agreements are considered in the United Kingdom to be ‘gentlemen’s
agreements’, which are ‘binding in honour only’ and not normally subject to
enforcement through the courts
-
a situation which now finds statutory
expression in
s.
18
of the Trade Union and Labour Relations Act
1974.
The
United Kingdom has not accepted the notion, propounded
by
Philippe
Lotmar
(IYOO),
that trade unions and associations
of
employers act as agents
for their constituent members. Nor has English labour law adopted the
principle of ‘normative effect’ for collective agreements, as developed in the
writings of Hugo Sinzheimer
(1907,
1908).
In consequence, not only is the
collective agreement in Britain an unenforceable agreement between the
parties
to
its making, but there is also absent any notion that those parties
are legally obliged to ensure adherence
by
their individual members to the
norms
of
those agreements.
A
further important factor in assessing the British situation is an
appreciation of the historical mistrust by trade unions for the law and ‘the
judges’. The reasons for this mistrust are not difficult to discover, and have
been well documented by Wedderburn
(1971)
and elsewhere. Suffice it
here, however, to
note
that the tmditional approach of British trade unions
to collective power on the employee side has rested, and continues
to
rest,
upon ‘self-help’, in the sense of strength won through the efforts
of
the
unions themselves, rather than rights, privileges and institutions established
by the State through, for example, the legislator. This attitude of the British
labour movement has persisted even in the face of growing involvement by
the State in trade union activities, and despite the impact upon
union
membership levels of economic recession, widespread job-shedding, and a
British Journal
of
[tidustrial Relations

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT