The Statutory Union Recognition Procedure in the Employment Relations Bill: A Comparative Analysis
| Published date | 01 June 1999 |
| DOI | http://doi.org/10.1111/1467-8543.00125 |
| Author | John Goddard,Stephen Wood |
| Date | 01 June 1999 |
The Statutory Union Recognition
Procedure in the Employment
Relations Bill: A Comparative Analysis
Stephen Wood and John Godard
Abstract
This paper analyses the provisions for union recognition contained in the
British Employment Relations Bill in the light of problems with the system in
operation in the 1970s and with its US counterpart. First, it establishes that
these problems may be attributable largely to defects in design rather than
fundamental ¯aws, and that this is demonstrated by the relative success of the
Canadian system. Second, the paper evaluates the Bill's provisions, ®nding
that it avoids many weaknesses of the 1970s and US systems but lacks a
number of the Canadian system's strengths. Consequently recognition may
be readily attainable if the union already has a majority, but there could be
undue delays and opportunities for employer interference if this is not the
case, and in general union recognition may not translate into effective
collective bargaining. However, if the provisions do help diffuse the
partnership model as the government envisages, apparent weaknesses in the
Bill may yet prove to be the hallmarks of a distinctive system.
The Fairness at Work Bill is the most signi®cant advance in employee rights for a
generation . . . [it] . . . represents a signi®cant shift in power away from the over-
mighty employer to the employee Ð giving a real boost to the partnership at
work that is the real secret of competitive success. ...Ofcourse . . . we are
worried that concessions given to employer lobbying may lead to unnecessary
legal action . . . But these disappointments should not distract from the historic
gain . . . that this Bill represents.
John Monks, TUC, 26 January 1999
Union recognition is not like the minimum wage Ð where once it was clear that
the rate would be set within sensible bounds, many members [of the CBI] were
more muted in their opposition.
Spokesperson for the CBI, 26 August 1998, in an interview with Stephen Wood
Stephen Wood is in the Department of Industrial Relations at the London School of
Economics. John Godard is in the Faculty of Management at the University of Manitoba,
Winnipeg.
British Journal of Industrial Relations
37:2 June 1999 0007±1080 pp. 203±245
#Blackwell Publishers Ltd/London School of Economics 1999. Published by Blackwell Publishers Ltd,
108 Cowley Road, Oxford, OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
1. Introduction
The Employment Relations Bill, published in January 1999, includes
provisions for a statutory union recognition system on the lines of those
®rst outlined in the White Paper, Fairness at Work. As stated in the White
Paper (Department of Trade and Industry (DTI) 1998: 3), the Govern±
ment's objective is to foster a `new culture' of partnership in the workplace,
in the belief that `ef®ciency and fairness are wholly compatible'. The
emphasis is thus on encouraging `understanding and co-operation' and on
the primacy of voluntary over legal recognition processes. The underlying
rationale is that `each business should choose the form of relationship that
suits it best', but that this should be tempered by the extension of this
`freedom to choose' to employees because, without this, `any commitment
will be hollow and will neither create trust nor underpin competitiveness'
(DTI 1998: 12, s. 2.6). This is interpreted to mean that `employers should
not deny a trade union recognition where it has the clear and demonstrative
support of employees', and to justify the imposition of an obligation on
employers to recognize trade unions where `a majority of the relevant
workforce wants it' (DTI 1998: 23, s. 4.11). The statutory recognition
procedure, though envisaged as a last resort, is designed to enforce this
obligation through a set of clearly de®ned criteria and steps, accompanied
by time constraints, should an employer reject a union's initial request for
recognition. The intention is that this format will encourage the parties to
reach voluntary agreement; but should this not happen, a formal ballot can
be conducted and recognition awarded if a majority of those who vote are
in favour and this majority represents at least 40 per cent of those eligible to
vote. Where the union is able to establish that it already has majority
support, under the Employment Relations Bill (ERB) this ballot will not be
required and recognition will be granted automatically, though if certain
conditions have not been met the Central Arbitration Committee (CAC),
the body charged with administering the procedure, can still insist on a
ballot.
The Trades Union Congress (TUC) and Confederation of British
Industry (CBI) (see CBI±TUC 1997), as well as other employer bodies
(such as the Institute of Personnel and Development (IPD)), agree that
primacy should be given to voluntary methods wherever possible. But while
the TUC has endorsed the `view that new legislation is needed to guarantee
people the right to a voice at work and to promote partnership'(1998b: 11),
the employers' bodies have all repeated their principled opposition to
statutory union recognition in their submissions on Fairness at Work to the
Department of Trade and Industry (CBI 1998; Engineering Employers'
Federation 1998; IPD 1998; Wilson 1998). Employers' associations have
argued that statutory union recognition is incompatible with effective
collective bargaining Ð since under it employers would have bargaining
imposed upon them Ð or successful partnerships between employers and
employees Ð since the development of the mutual trust that underlies
#Blackwell Publishers Ltd/London School of Economics 1999.
204 British Journal of Industrial Relations
partnerships depends on voluntary discussions and arrangements.
Underlying this opposition is a worry that `the signi®cant progress [on the
industrial relations front] that has been made on a voluntary basis'
1
will be
undermined, a concern which itself re¯ects a more fundamental question-
ing of the role of unions. The Director General of the IPD (Armstrong
1998: 38) has said that the main issue for management is that `¯exible
working practices, continuous improvement and adaptability cannot be
allowed to fall into discredited black holes of detailed joint regulations and
adversarial collective relationships . . . [since] the ultimate power is in the
hands of customers'.
The employers' bodies also reiterate criticisms of the previous attempt to
establish a statutory recognition procedure in Britain Ð in the 1970s Ð that
is widely perceived to have failed since even the body charged with
administering it Ð the Advisory, Conciliation and Arbitration Service
(ACAS) Ð argued for its abandonment. Employers' bodies, when they
have been prepared to discuss in public the design of the recognition
procedures, portray the devil to be in the detail (see Wood 1997: 22±7). The
problems of how support for the union should be de®ned and ascertained
are seen as particularly troublesome and as central to the failure of the
1970s system. None the less, the details of the Bill are secondary to the
employers' more fundamental misgivings about a revival of strong union-
ism.
Employers' bodies are not unique in questioning the necessity or
desirability of statutory union recognition procedures. Within academia,
the experiences both in the UK in the 1970s and in the USA in the past sixty
years have led some to conclude that such procedures are inherently ¯awed
and con¯ict with a ¯exible problem-solving approach to industrial relations
(Townley 1987: 191). It is argued that their very existence generates an
adversarial culture, since union recognition is viewed as a potential vote of
no con®dence in management which heightens employer opposition
towards unions and makes employees reticent about seeking recognition
(Adams 1993: 8). In addition, the desirability of the US system for
employees has been questioned on the grounds that it provides only limited
co-decision rights (Klare 1978; Stone 1981). Yet others (e.g. Gould 1993;
Block 1994, 1997; Taras 1997) have argued that much depends on the
design of speci®c systems, pointing to the relative effectiveness of the
Canadian system as evidence that a statutory system can work.
In this paper we explore the ERB's provisions for union representation
in the light of concerns about the speci®c failings of statutory procedures in
the UK and the USA and also the role of law in industrial relations in
general. Our starting point is that small differences may well matter, to
paraphrase Card and Freeman (1993). Even if ¯aws are inherent in
statutory recognition systems, the extent to which they are manifest may
be substantially affected by the design of these systems. For, if the devil is in
the detail, different design principles should produce different outcomes.
We ®rst examine the experience of statutory recognition in the UK, the
#Blackwell Publishers Ltd/London School of Economics 1999.
Employment Relations Bill: Comparative Analysis 205
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