“There are, perhaps, three major distinctions between the I & C Regulations and statutory recognition. The first is that the process for establishing an Information and Consultation arrangement is irregular and possible drawn out, compared with the procedure for statutory recognition”.[1]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Table of Contents


                                                                                                                                    Page


Title Page                                                                                                                 1         


Table of Contents                                                                                                  2


Introduction                                                                                                             3


Statutory Recognition                                                                                          5


            Statutory Recognition Process                                                                    6


            Assessment of Statutory Recognition                                                        9         


            Achieving Optimum Protection to Workers in Statutory Recognition      11


Information and Consultation Regulations                                                     12


            Information and Consultation Process                                                        12


            Purpose of Assessment and Consultation                                     13       


Impact of the Information and Consultation of Employee             14


Regulations against Legislators’ Objectives


 


Conclusion                                                                                                              19


 


Table of Cases                                                                                                        20


Table of Statutes                                                                                                    20


Table of Secondary Legislations                                                                       20


Bibliography                                                                                                            21


Table of Secondary Sources                                                                              21


Table of Tertiary Sources                                                                                    21


           


 


 


Introduction


 


            Labour law reform has come a long way in terms of the incorporation of different innovative legislations to provide the worker with better protection in the workplace in compliance with domestic and international labour standards. The Human Rights Act 1998 incorporates provisions of the European Convention on Human Rights into the English law as a means of bridging the gaps in the protection of workers’ fundamental rights. There have been other major and important labour law reforms since the victory of the Labour Party in 1997 such as the Employment Relations Act 1999 that gave way to statutory recognition and The Information and Consultation of Employees Regulations 2004. However, there are still a lot of things to be done especially since Britain is still not in full compliance with international labour standards. Britain remains in breach of Council of Europe’s Social Charter 1961 by being attributed with the worst record of compliance relative to other ratifying members. There is also the persistent move to block progressive measures being initiated in Brussels such as the EU Charter of Fundamental Rights or the Information and Consultation Directive.[2] The only time that the country can truly say that it has achieved a satisfactory system of worker protection is when there is a system in place that provides actual protection of workers’ rights in actual circumstances. There is a need to provide genuine labour law reforms and this can only be done through the consistent review of existing labour laws and consideration of actual problems and issues surrounding the employer-employee relations.


 


            A persisting issue in labour relations is the system and procedure of establishing labour relations mechanisms as directed by existing legislations. A mechanism of labour relations is information and consultation of employee regulations under the Information and Consultation of Employees Regulations 2004 and the Employment Relations Act 1999 as amended in 2004. Another mechanism is the process of statutory recognition for unions to act as valid representative bodies in collective bargaining. These mechanisms have met criticisms since their inception based on different points. However, the paper will discuss the distinctions in the establishment of the information and consultation of employer regulations and the statutory recognition of labour unions.


 


The paper will lift off from the statement of Sir Michael Burton, Chairman of the Central Arbitration Committee (CAC), that one difference between the two mechanisms is that the process of establishing information and consultation of employee regulations is irregular and prolonged when compared to the process of achieving statutory recognition of labour unions.


 


 


 


 


Statutory Recognition


 


            Although the achievement of statutory recognition is easier relative to information and consultation, there are still issues governing the process of obtaining statutory recognition. Statutory recognition refers to the process of recognition or derecognition of different unions for the purpose of collective bargaining. The mechanism was instituted by law to enable unions to be recognized by employers in case majority of the workforce wanted representation by the union seeking recognition. The purpose of the establishment of the mechanism is to balance the interest of workers to have representation and the interest of the employer to negotiate with recognized worker representatives. Moreover, extending recognition to unions creates a relationship between employers and workers that fosters the voluntary settlement of any recognition claims between the parties. In effect, statutory recognition serves as a fallback in case the parties do not agree on the process or terms of recognition.[3]


 


            Schedule A1 of Trade Union and Labour Relations (Consolidation) Act 1992 that was incorporated into the Employment Relations Act 1999, which was amended by the Employment Relations Act 2004, provides that trade unions have the option to file an application to the Central Arbitration Committee in conjunction with their legal right to recognition by the employer to become a worker representative in the collective bargaining process. The negotiation process covers the pay of workers, the hours of work, holidays and other related matters that concern the bargaining unit. In case the parties cannot agree on the matter of union recognition then the application process continues, with the intervention of the Central Arbitration Committee, to provide recognition of the union applicant as a matter of law.[4]


 


Statutory Recognition Process


 


            The statutory recognition process involves several stages[5] involving a timetable that may be extended by the Central Arbitration Committee on its own or after application by the parties. Stage 1 is commenced with the trade union writing to the employer to ask for recognition. A requirement for the application to be valid is that the employer should have at least 21 workers. Another requirement is that the union seeking recognition should be independent to exercise the right to statutory recognition. After receiving the letter of request, the employer has 10 working days to respond to the letter. In case the employer voluntarily recognizes the union, then the process of statutory recognition ends giving way to the commencement of collective bargaining negotiations. However, if the employer does not extend recognition to the union, the union has the option to seek the intervention of the CAC but the opportunity for voluntary negotiation stays open. If employer participates in voluntary negotiations, the parties are given twenty days to conclude discussions.[6]


 


            Stage 2 covers the process of the trade union’s application to the CAC. Upon receipt of the application, the CAC is given ten days to deliberate and decide the issue of accepting the application by considering the requirements and criteria provided by law. One criterion is that at least ten percent of the workers in the particular bargaining unit are members of the union. Another criterion is that the union should provide CAC with reasonable assurance that majority of workers be in favour of the recognition. Still another criterion is the lapse of three years from the previous application of the union resulting to the granting of recognition.[7]


 


            Stage 3 involves the determination and agreement on the bargaining unit. In case the application of the union is accepted by CAC, the employer and the union is giver twenty days to determine the bargaining unit and agree on this in case there was no previous agreement on the matter. If ever there the parties cannot agree on the matter, the CAC determines the bargaining unit. The CAC determines the bargaining unit by considering what is consistent with effective management. CAC has ten days to assess the bargaining unit that is consistent with effective management. In case there is an inconsistency in the bargaining unit contained the union’s application and that determined by the CAC, the latter should reconsider the acceptance criteria to the new bargaining unit.[8]


 


            Stage 4 is the determination of the recognition. After the bargaining unit has been identified, the CAC decides whether to allow the union an automatic recognition or hold a ballot. The decision depends upon the satisfaction of the CAC that ten percent of the members of the bargaining unit support the recognition. If the CAC has no doubt of the support of ten percent of the members, then the body will declare the union as recognized. However, in case of doubt in the membership support of the union, the CAC allows the holding of the ballot due to: 1) its determination that holding a ballot is beneficial to industrial relations; or 2) if a reasonable number of workers voice out their unwillingness to be represented by the union; or 3) if evidence shows that the workers do not want the union to engage in collective bargaining.[9] 


 


            Stage 5 involves the conduct of the ballot. The CAC provides a ten-day period prior to the balloting and awaits any word from the union or the bargaining unit of any dissent to the holding of the ballot. If there is no dissent then the ballot proceeds. The CAC appoints a Qualified Independent Person to facilitate the ballot, which must be conducted within twenty days after appointment. Apart from appointment, the CAC also has the responsibility to determine the balloting method. During the balloting, the employer is expected to cooperate in the process by allowing the union to interact with the bargaining, providing the list of workers in the bargaining unit, and allowing the distribution of any union literature. If the balloting results to a majority vote of support for recognition from those who participated that constitute at least forty percent of the total number of eligible voters, then the CAC issues a declaration of recognition.[10]   


 


            Stage 6 is the determination of the method of collective bargaining. After recognition, the parties are given thirty days to arrive at an agreement on the collective bargaining method. In case of irreconcilable disagreements, they may seek the intervention of the CAC. The body has twenty days to mediate a method. Otherwise, it will determine the method appropriate to the situation of the parties. The method constitutes a contract binding upon the parties and non-compliance offers the remedy of seeking a court order for specific performance.[11]


 


 


Assessment of Statutory Recognition


 


There are several criticisms thrown against statutory recognition. One issue is that statutory recognition is biased against unions particularly in the requirement that the union should be able to prove that it is likely to obtain a majority vote in the balloting[12]. There is difficulty in proving the support of majority of the workers in the ballot in cases where non-independent unions try to block the application of an independent union by establishing itself as the existing recognized union with negotiating rights for collective bargaining[13]. Statutory recognition procedures provide that a union may not make an application for recognition in case there is already an existing union accorded recognition by the employer for collective bargaining. This means that a non-independent union recognized by the employer prevents the employer from accepting the application resulting to the need for intervention by the CAC. Although, there is a requirement that only independent unions are qualified to apply for recognition, the employer is not prevented from negotiating with the non-independent union because this is a voluntary manner of conducting collective bargaining.


 


            These issues may be considered as violations of the International Labour Organization Convention No. 98 particularly article 2(2) and 3 that provides for the establishment of worker’s associations as a manifestation of the freedom of association and creation of a legal environment that supports workers’ rights to organize. This means that factors defeating the exercise of the right to free association and right to organize should be eliminated in the process of statutory recognition such as differentiating the rights of independent and non-independent unions with due support to the development of independent unions if the government seeks to achieve the creation of collective bargaining agreements that genuinely protects workers’ rights.


            Another issue requiring an evaluation is the employer’s direct influence in the process of recognition. There are several recorded ways that employers may influence workers not to support an independent union. Carrington and Others v Therm-A-Stor Ltd[14] involves the action of the employer of declaring as redundant a number of workers, in response to an application for recognition, to serve as example to other workers. In Brassington v Cauldon Wholesale Ltd[15] the employer made the threat to dissolve a company if he is made to recognize a union by virtue legislation.


 


Achieving Optimum Protection to Workers in Statutory Recognition


 


There is a need to evaluate labour legislations and incorporate the issues faced by workers in the implementation of statutory recognition. The Wilson and Palmer case[16] provides that workers should be given protection from the detriment caused by the deliberate action or inaction of employers in relation to the recognition of labour unions. Another manner of ensuring the protection of workers rights is the provisions of the Employment Code of Practice 2002 on access arrangements that requires the avoidance of spreading defamatory materials or making personal attacks that prevents the employer from threatening workers to support or not to support a particular union. 


 


Information & Consultation Regulations


 


            This development in labour law refers to the exercise of the right to gain information on new developments in the workplace. Workers in a business organization comprised of a minimum of 150 people acquire the right to regular information and consultation regarding issues in the workplace. Business firms with a minimum of 100 but less than 150 workers acquires the right  in April 2007 and those with a minimum of 50 but less than 100 employees will acquire the right in April 2008. However, the legislation does not apply automatically and it is activated upon the initiative of the employer or upon the request of at least ten percent of the workers of the business firm provided the percentage is made up to a minimum of fifteen and a maximum of two thousand five hundred employees. Moreover, any existing agreements on information and consultation may be continued if the employees support such arrangement. The legislation aims to enable the employer and employees to determine an information and consultation arrangement that suits their particular circumstance so that it does not mention the subjects, methods or arrangements.[17] 


 


Information and Consultation Process


 


            Employers may initiate communications for an agreement on an information and consultation process but qualified employees may also request negotiation to reach an information and consultation agreement. However, if there is an existing agreement, the employer has the option to proceed with balloting in order to obtain the endorsement of the employees of the request. If the employees do not endorse the request then the existing information and consultation agreement stands. However, if the employees endorse the request then negotiations will ensue to achieve an agreement that is satisfactory to all parties. After the conclusion of negotiations, a three-year moratorium is established that blocks new requests. Employees have the option to send the request directly to the employer or through the CAC, which will handle the negotiations in cases where the employees want to protect their identities. Any employee may also file a request and they are given six months to obtain the required support. Upon receiving the request, the employer has the responsibility to inform all employees of the request and the initial response to the request. Informing the general workforce is important because it apprises the person or group requesting of the status of the request and the employees of their options.[18]


 


Purpose of the Information and Consultation


 


            The purpose of The Information and Consultation of Employees Regulations 2004 is to develop and maintain a continuous dialogue between the employer and employees so that the latter are apprised of the developments in their work and the workplace. Information and consultation does not only refer to the process of reporting but also the process of exchanging ideas about a work-related issue, where the employees bring out problems in the workplace and the employer conscientiously responds to these issues. Information and consultation may be made by communicating with employees directly or with representatives or both. 


 


            Legislators enacted the law to facilitate employee involvement in the workplace based on the premise that involvement is beneficial to both parties by enabling employees to air their grievances and become aware of the new developments in the workplace affecting them and the employer to achieve the optimum potential of its workforce. A number of studies show that the implementation of a sound human resource management affects productivity[19].           


 


Impact of the Information and Consultation of Employee Regulations against Legislators’ Objectives


 


 


            Apart from the general purpose of the legislation to provide a directive for communications between the employer and employees on issues in the workplace, the provisions of the legislation also imply specific objectives supported by deliberations prior to the formal enactment of the law.


            First is the objective to cover all employees[20]. Upon consultation of the draft with the Employers’ Organization for Local Government, the organization issued several comments on employee coverage. The draft showed that employees were defined as individuals working under a contract of employment or apprenticeship with the exception of agency workers and consultants who are not considered as employees although in the legislation employee refers to people working under a contract of employment[21]. This implies that agency workers, consultants and apprentices are not accorded the right to information and consultation or to participate in the elections for employee representatives. Despite the objective of legislators to cover all employees, there are certain employees not accorded with these rights. This is important because even if the role of agency workers and consultants are limited, there are instances when they are affected by issues in the workplace such as when they are in-house consultants or working with the firm for a long time. People working as apprentice are definitely affected by issues in the workplace. However, the extent of participation of these people in the workplace varies and poses a difficulty in the implementation of the law, which accounts for their exclusion.


 


            Second is adequate representation through the requirement that the request for information and consultation be made by at least 10 percent of employees or at least 15 up to 2,500 employees. In the calculation of the total number of employees to determine the people comprising 10 percent, part-time employees may be counted as half a person by the employer. Part- time employees are those who work for less than 75 hours in a given month. This prerogative given to employees empowers them to influence the determination of the total number of employees particularly if the workplace issues concern both full-time and part-time employees. It is also not a justifiable move to consider working time as the determination of qualification for the rights since all workers have the interest to learn about what is happening and expected to happen in the workplace regardless of position or working time.


 


Third is to ensure the protection of employees’ rights by providing a statutory fallback[22]. Employees have a right to send their request for the number of employees and their request for information and consultation in case the employer fails to cooperate voluntarily. The CAC and other Qualified Independent Persons are authorized to receive requests from employees. However, this arrangement is subject to confusion because different employees may file different requests in different authorized bodies especially in a large workforce where employees do not communicate with each other. There is no manner of determining valid requests and the manner of consolidating several requests. There is also no indication that the different authorized bodies compare notes on the requests to determine which covers a single workforce. Without clarification in relation to this possible problem, the CAC and other Qualified Independent Bodies, employers and employees may be trapped in a web of overlapping requests and grant of requests that affects the effectiveness of the information and consultation system and requiring more resources.


 


Fourth is the objective of legislators to facilitate communications between employers and employees that explains the lack of identification of the subject matter, methods, and the manner of doing information and consultation[23]. This intention is sound because it ensures that it is through the communications between employers and employees that information is shared on workplace issues and problems, employees are consulted about decisions that change the nature of work or policies in the workplace that affects the workforce, and other information and consultation areas that arise in the particular business organization. This means that the result of the process is appropriate and specific to the characteristics of the workplace. However, this is also subject to difficulties. Regardless of the workplace conditions, there are varying degrees of inequality between the employer and employees that is higher in non-skilled work and lower in skilled work. This means that in the issue of information and consultation, the exercise of the right is probably more frequent among skilled workers than among unskilled workers regardless of the fact that they are all accorded with the right.


The existence of the right to information and consultation set forth in the legislation does not ensure its exercise especially since the law provides freedom to the parties in the exercise of the right. In actual work environments where employees are highly replaceable, the exercise of the right may be scarce especially if the issues intended to be communicated to the employer constitutes pay, benefits or working time. Just like in statutory recognition, information and consultation is also affected by the circumstances of the workplace and the existence of the innate inequality between employer and employees although in varying degrees.


 


Fifth is the objective of legislators to facilitate growth in the industries by improving the communications between the employer and employees in large business organizations[24]. The core idea of information and consultation is the achievement of fairness in the workplace. This means that employees have a right to know the condition of the business firm especially if this affects their work or the existence of their work in the future. It is not fair to employees to learn that they may loose their jobs due to a failing or mismanaged business from the media and other people before their employer informs them if they are informed at all. This is a well-meaning legislative objective particularly because it is directed towards improving the performance of the organization. A failing business may be saved through the communication and cooperation of the employer and employees. If both parties see information and consultation as tool for enhancing the performance of the business organization, which is the common goal of the parties, then the cooperation of the employer and employees are expected in the difficulties involved in the exercise of the right.


Conclusion


 


            In terms of the organization of the exercise of the right, statutory recognition is more organized or ordered when compared to information and consultation. This is because on one hand there are definite stages in statutory recognition, there is a definite solution in case of the lack of cooperation on the part of the employer, CAC is the authorized body that declares union recognition, and the subject matter of the application is pre-determined as union recognition for collective bargaining. This means that the establishment of statutory recognition is ordered and structured. It provides a process, the remedies, the authorized parties, and periods. The legislation on statutory recognition provided a doable instruction to the concerned parties. On the other hand, information and consultation regulations provides for the manner of exercising the right and the corresponding responsibilities of the parties, the determination of employees and some remedies. However, the law provides a wide room for initiatives on the part of the parties to commence the process. This means that if there is no intention on the part of the employer to communicate with the employees and if there is no determined initiative on the part of employees to communicate with the employer then the underlying right to fairness in the workplace will not be achieved. Information and consultation entails that the burden to request for information and consultation rest upon the employees. This is difficult for large business organizations because the employees are segregated into different departments and divisions and the view or concerns of employees may not extend beyond their departments making it hard to draw cooperation. Thus, as a process and a legislative subject statutory recognition is more workable when compared with information and consultation. 




[1] Burton, M. Annual Report 2004/2005, (2005)Central Arbitration Committee @ Pg 3


[2] Novitz, T, International Principles and Domestic Pragmatism: Will the Employment Relations Act 1999 implement international labour standards?. (1999) Paper delivered to the Industrial Law Society at its Annual Oxford Conference in September 1999 @ Pg 1


[3] Department of Trade and Industry. Review of the Employment Relations Act 1999. (2003) DTI @ Pg 27


[4] Central Arbitration Committee. Statutory Recognition: Guide for the parties. (2005) CAC @ Pg 1-2


[5] Employment Relations Act 1999, Schedule 1


[6] Department of Trade and Industry. Review of the Employment Relations Act 1999. (2003) DTI @ Pg 89


[7] Ibid. @ Pg 90


[8] Opcit. @ Pg 90


[9] Department of Trade and Industry. Review of the Employment Relations Act 1999. (2003) DTI @ Pg 90


 


[10] Ibid. Pg 91


[11] Opcit. Pg. 91


[12] Gall, G. & McKay, S. Facing ‘fairness at work’: union perception of employer opposition and response to union recognition, (2001) Industrial Relations Journal, 32(2), @ Pgs 94-113.


[13] Dundon, T. Employer opposition and union avoidance in the UK. (2002)  Industrial Relations Journal, 33(3), @ Pgs 234-245.


 


[14] Carrington and Others v THERM-A-STOR LTD [1983] ICR 208


[15] Brassington v. Cauldon Wholesale [1978] ICR 405 (EAT)


[16] Wilson & The NUJ, Palmer, Wyeth & The NURMTW, and Doolan & Others V. The United Kingdom [2002] IRLR 568


[17] Department of Trade and Industry. Information and Consultation: Introduction. (2005) DTI, http://www.dti.gov.uk/er/consultation/proposal.htm


[18] Department of Trade and Industry. DTI Guidance on the Information and Consultation of Employees Regulation 2004. DTI @ Pgs 11-12


[19] Becker, B. & Gerhart, B. The Impact of Human Resource Management on Organizational Performance: Progress and Prospects. (1996) Academy of Management Journal, 39(4), Pgs 779-780; Legge, K. Human Resource Management: Rhetorics and Realities. (1995) McMillan @ Pg. 1


 


[20] Employers’ Organization for Local Government, Advisory Bulletin: Employment Relations, No. 474—High Performance Workplaces: Informing and Consulting Employees, (2003)Employers’ Organization for Local Government, London @ Pg 4


[21] The Information and Consultation of Employees Regulation 2004, Section 2


[22] The Information and Consultation of Employees Regulations 2004, Section 6, 7 & 21


[23] Department of Trade and Industry. DTI Guidance on the Information and Consultation of Employees Regulation 2004. DTI @ Pgs 11-12


[24] Department of Trade and Industry, High Performance Workplaces: The role of employee involvement in a modern economy, (2002) DTI London @ Pg 10




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