Keith Ewing, a founder of the UK Institute of Employment Rights, believes that advocacy to improve employment rights is an ongoing necessity in both Britain and Australia. Welcoming the formation of the Australian Institute of Employment Rights (AIER) he said that while the Blair Government had improved the position of workers, it had not proved to be a panacea for many problems of rights and fairness in the workplace.

While the UK Low Pay Commission had addressed some of the gross inequalities produced by the Thatcher era more needed to be done to achieve European average levels of income differential. Collective bargaining density was a key to achieving this by both statutory recognition of unions and regulatory requirements for sectoral bargaining structures.

Now a Professor of Labour Law at King’s College London, Ewing is a former research adviser to Tony Blair when he held the Shadow Employment portfolio. He addressed a Seminar on 27th February 2006 at the Monash Law Centre in Melbourne organised by AIER.

The UK Institute was established in 1989 at the height of the Thatcher government’s anti-union policies. Ewing said that the role of the UK Institute was to educate, raise awareness and to conduct research. Alternative policies and strategies had been developed in particular through the development of the Charter of Workers’ Rights in which many people had been involved. A current campaign around the Trade Union Freedom Bill (which consciously adopted the Orwellian rhetoric of Peter Reith) was being supported by the Trade Union Congress (TUC) and all major unions in the UK to reform the labour law.

Union-Busting UK-style

Ewing said that some of the defects of the UK laws arose from the statutory recognition processes, through which loopholes have been exploited by law firms on behalf of employers. These firms were the UK equivalent of union-busting outfits in the US. While recognition processes were necessary, union and collective bargaining density depended more on European-style sectoral bargaining structures and regulation involving both employers and unions. Without such regulation, UK collective bargaining density was stuck at 35% whereas Austria, Germany, France and Scandinavian countries have high levels up to 90%.

Prior to its election to government the British Labor Party adopted a policy of statutory recognition of unions in collective bargaining where it could be demonstrated that workers wished to be represented by a union. Tony Blair committed Labor to reversing the fall in collective bargaining density during the Thatcher years from 82% on gaining office to the lowest in Europe. However, after winning government, the Blair Government was subjected to effective lobbying by business on the fine detail of its labour law reforms which resulted in union recognition processes which exclude nearly 25% of the workforce or five million workers who are employed in smaller firms employing less than twenty staff. This created a disincentive for employees in those firms to join unions and made union organising in small firms expensive and difficult. This had the effect of adding to the disparities in incomes and a two-tier labour market.

Sweetheart Associations

Another problem was the precedence given to voluntary recognition arrangements over statutory provisions, leading to the establishment of “sweetheart associations” in lieu of unions which excluded union recognition applications. This had lead to the exclusion of print and journalist unions from media companies and the prison officers union from private prisons, even where the agreement was with an association with virtually no members.

Moreover, while the principle of “majority rules” was accepted in principle, in practice the statutory body involved, the Central Arbitration Committee had been given discretion to order a ballot “in the interests of good industrial relations” even where a majority was evident. In many cases, once ballots had been ordered pressure had been brought by the employer against recognition using veiled threats to continued employment. This had not been overcome despite attempts in the 2004 amendments to prevent unfair practices.

Ewing concluded that while recognition procedures were necessary, it was also necessary to establish collective bargaining as a regulatory obligation in industry sectors under forums or councils drawing representation from employers and unions. The modern capitalist economies of Europe illustrated how labour market regulation could be linked to industry, trade, welfare and training policies to achieve more equitable outcomes while achieving the highest levels of productivity.

Friction Dynamics = Dynamics Friction

Ewing talked about the case of “Friction Dynamics” a US company operating a brake lining factory in North Wales which unilaterally announced cuts to pay and conditions in 2003. The result showed that the conditions imposed by UK laws on the right to strike undermined the capacity of workers to tackle unfair practices effectively. Despite taking legal strike action and eventually winning a claim for unfair dismissal, the voluntary liquidation of the company and its immediate replacement by “Dynamics Friction” at the same address and the prohibition on sympathy action by other unions had meant their jobs were taken by replacement labour.

Similarly, the Heathrow Airport dispute late in 2005 showed that workers left to battle on their own against Gate Gourmet without solidarity support could lose faith in union membership.

Professor Ewing concluded that while union recognition, services and representative functions were essential for unions to retain and build membership, the reluctance of the state to impose regulatory functions on a sectoral basis in the UK, as distinct from most European systems, meant that collective bargaining density remained relatively low.