Need for State Support

In 2022, the European Union led the way, passing the Adequate Minimum Wage Directive which set a target of 80 percent collective bargaining coverage in every member state. It is already the case that in some EU member states, collective bargaining coverage is well in excess of 80 percent. Those which do not meet this threshold are now required to produce an action plan setting how they intend to do so.

Brexit means that this is an obligation with which the UK does not need to comply, but there can be no room for complacency here. Trade unions in the UK — which has a collective bargaining density lower than almost every EU member state — also need the government to create a legal framework in which they can flourish if living standards are to rise. What is required — and what the Employment Rights Bill has spectacularly failed to deliver — is a repositioning of public policy in support of collective bargaining.

In 2021 the core commitment of A New Deal for Working People was the rolling out of industry- or sector-wide collective bargaining, anticipating the provisions subsequently adopted by the EU. This is a form of collective bargaining which takes place at industry level and which is associated with high levels of protection.  Its operation in this country until the 1980s explains what was then our 82 percent coverage.

But the commitment made in A New Deal has now been put on ice by Starmer, with a limited exception in the Employment Rights Bill for school support staff in England, and adult social care workers in England and Wales. In both cases, however, the procedures in question will be subject to tight control by the government, which will determine the remit and budget of both. In addition, it may ultimately veto an agreement it does not like, and unilaterally impose terms and conditions in either sector.

Without the rollout of sector-wide activity more widely, workers will have to fall back on company or enterprise level collective bargaining, requiring trade unions to grow workplace by workplace by securing and winning votes for union recognition in each. This is a form of activity is associated globally with low levels of coverage. According to the OECD collective bargaining density in the UK now stands at only 26.9 percent, despite the statutory recognition procedure introduced by the Blair/Brown government in 2000.

The latter has failed miserably even to arrest the decline, the New Labour-dominated parliament having tailored into the legislation a number of legal and bureaucratic barriers to its effective use, which tip the balance of power in favour of hostile employers. Indeed, the ineffectiveness of this legislation is revealed by the fact that it has survived fourteen years of Tory-led governments and five Tory prime ministers without amendment or repeal.

Hostile Employers

Some of the difficulties with the statutory recognition procedure were highlighted by the recent experience of the GMB union in its efforts to establish collective bargaining arrangements on behalf of workers at Amazon’s warehouse near Coventry. In what was a well-organised and well-supported worker campaign, the union claims to have been constantly undermined by hostile employer resistance.

The GMB condemned the company for creating ‘a culture of fear for low-paid workers trying to improve their pay, terms and conditions’, with ‘relentless attacks’ on ‘their own workforce’. It also drew attention to posters throughout the workplace encouraging GMB members to click on a QR code which instructed the union on behalf of the member to cancel their membership.

As a result, the union lost the recognition ballot with 49.5 percent of the vote, and is unable to bring a new claim under Labour’s statutory procedure for another three years. The GMB subsequently argued for ten major reforms to the procedure if it is to work effectively. But the government has been deaf to the GMB experience, the new bill containing only two minor changes which are of a largely inconsequential nature.

It is true that the Employment Rights Bill contains a new provision for trade union access to workplaces for recruitment and organising, which could help palliate the difficulties associated with the statutory recognition procedure. Ideally a union will be able to enter workplaces and build up membership and support before making a recognition application.

Despite the language of the bill, however, it cannot realistically be said that in its present form the trade union access provisions amount to a ‘right’. Instead, the bill stipulates that a trade union will be able to ask an employer to enter into an access agreement, and that if the employer refuses, the union will be able to complain to the Central Arbitration Committee (CAC), which can effectively impose an access arrangement.

So far so good.  However, if the employer fails to observe an access agreement or a CAC-imposed arrangement, there is no way anyone can compel the employer to comply. If so minded, the union can make another reference to the CAC to have a financial penalty imposed on the employer.  But bizarrely, any penalty imposed by the CAC is to be payable to the government, not the union for which there is no remedy.

The Right to Strike

The lack of any effective measures to redress the collective bargaining deficit is mirrored by the provisions relating to the right to strike. Trade unions have welcomed the proposed repeal of the Strikes (Minimum Service Levels) Act 2023, which, if it had ever been implemented, would have compelled public sector workers to continue working through strike action, and required their unions to encourage them to do so.

Also welcome is the reversal of most of the obligations introduced by the Trade Union Act 2016, so that a simple majority vote in favour of industrial action is restored, scrapping the minimum 50 percent turnout requirement introduced to frustrate attempts to take industrial action. Gone too are the additional restrictions on strikes in important public services which require the majority vote to be supported by at least 40 percent of those eligible to vote.

But the attack on trade union power did not begin in 2016 and end in 2023. Trade unions were the subject of vicious Tory attacks between 1980 and 1993, tightly controlling the circumstances in which the right to strike could be used. Since at least 1989 the International Labour Organisation (ILO) and the Council of Europe have found that the Thatcher-authored restrictions do not comply with Britain’s international legal obligations. A New Deal committed the Labour Party to addressing this embarrassment, providing that

The laws regulating industrial action should ensure that UK law complies in every respect with the international obligations ratified by the UK, including those of the International Labour Organisation and the European Social Charter, as reiterated in the Trade and Cooperation Agreement with the European Union.

But the Employment Rights Bill does nothing to redress the situation, and the Tory laws introduced between 1980 and 1993 are to remain in force.

So when engaged in industrial action, by virtue of the Tory legacy, trade unions are required to give notice of an intention to ballot, to hold a postal ballot, and to give notice of an intention to strike, a process which must be refreshed if the strike continues beyond six months. Although the process will be simplified by the bill, the structure survives intact, despite being said by the Council of Europe to be ‘excessive’.

The Tories of the Thatcher era also insisted that the right to strike can lawfully be exercised only in disputes between workers and their own employer. Confined in this way, strikes cannot be used to protest against the government, even when the government is seeking to take away trade union rights, as so many recently have. Perhaps even more importantly, workers are also barred from taking action in solidarity with other workers who are in dispute.

It is difficult to exaggerate the importance of solidarity action in empowering trade unions.  Had it been possible during the P&O Ferries dispute, the RMT and Nautilus could have called upon unions organising other workers in the ports and elsewhere to instruct their members to support those who had been dismissed. Leverage of this kind might have drawn in those providing fuel for the vessels and other services to the company.

To those who are opposed to unions having the power to impose such commercial pressure, the response is obvious: it would not be necessary if employers behaved decently and fully complied with their legal obligations. In any event, the right to take solidarity action is mandated by international law, with the ILO renewing its criticisms of British law following the P&O Ferries dispute, urging the government again to address the breach.

The failure of this bill to do so is all the more notable in light of the comments made by the Attorney General in a recent lecture where he presented the case for ‘rebuilding our reputation as a leader in the field of international law and the international rules-based order’. As Lord Hermer continued: ‘International law is not simply some kind of optional add-on, with which states can pick or choose whether to comply’.

Free to Break the Law

While the Employment Rights Bill is significant, it is significant as much for what it does not do as for what it does. By no stretch of the imagination can it be said to be game-changing. It does not affect the structure or balance of our labour law; on the contrary, it reaffirms with modifications essential features of the Tory-led neoliberal revolution.

With a heavy emphasis on a wide range of individual employment rights, the bill reinforces the tilt from collective bargaining to a statutory individual rights model as the main vehicle for worker protection. With the exception of adult social care workers and school support staff, it is highly unlikely that we will see a significant increase in collective bargaining levels to follow. It will be an achievement to slow the speed of decline.

The statutory individual rights model provides only minimum standards, and leaves it up to the individual worker to pursue a claim against their employer in an employment tribunal.   There, the worker is confronted by lawyers and a complex and lengthy procedure, subject to massive delays, the rate of success of which — in the form of reinstatement or re-engagement orders — are depressingly low.

Compensation for breaches of most rights, too, is statutorily limited.  Moreover, only a third of those workers awarded compensation by a tribunal ever receive the full amount of their award; another third only receive part of their compensation. True, the new government has proposed some remedial measures (including extending the time limit for lodging claims) and a new state authority (the Fair Work Agency), but the remit of the latter is so far very limited and will not make tribunals an effective forum for redress.

British labour law continues to be hamstrung by weak and inadequate remedies. Trade unions can be stopped by injunction when they act unlawfully, but there are no corresponding remedies against employers when they do the same. Under this legislation it will remain impossible to restrain employers when, for example, they break the law on redundancy consultation or refuse to reinstate an unfairly dismissed worker.

As matters currently stand, employers will remain free to choose whether to obey the law, and to buy themselves out of trouble if they decide not to do so. The failure to address this fundamental imbalance of power speaks volumes about the content of the new bill, and must be a priority in the trade union-led campaign to improve its content and build on its achievements.