Strength in numbers

Adam Bernstein
Wednesday, March 11, 2020

Britain in the 2020s is a radically different place compared to that of the 1970s and 1980s; strikes are few and far between. ONS data shows that the Winter of Discontent of 1979 saw 29.4m working days lost while the 1984 miners’ strike recorded 27.1m days lost. 2017’s 276,000 lost days barely counts in comparison.

As for print, many will remember the industrial action of 1986-87 when the print unions tried to block distribution of The Sunday Times, along with other newspapers in Rupert Murdoch’s News International group, after production was shifted to a new plant in Wapping.

Born out of a need to rein in the power of the industrial barons, trade unions do have a role to play in a modern society. Of course, a commentator’s perspective changes according to their viewpoint – but nevertheless, unions do exist, and protections are written into law.

It’s a fact that union power and influence has declined in recent years. Despite this, Louisa Bull, national officer, GPM&IT Sector for Unite, considers the print and packaging sector to be “highly organised and the terms and conditions have stood the test of time”. However, she adds that “the union does not have a national agreement in print, not since 2008, but the terms and conditions from that time remain in force”. She says that Unite has a negotiating guide that sets minimum standards for the industry and it works in partnership with the BPIF.

The law is clear

According to Chloe Themistocleous, an associate in the employment department of Eversheds Sutherland, every employee has the right to join or leave a trade union whether or not their employer recognises that union. Furthermore, employees can join more than one union if they wish.

Themistocleous’ interpretation of the law is backed by Tim Sharp, TUC senior employment rights officer, who notes that “there are only a few restrictions for the likes of the police and parts of the security service. But even then, workers can join representative organisations like the Police Federation”.

But what of a workplace that isn’t unionised? Themistocleous says: “If a trade union wants to be recognised by an employer to conduct collective bargaining on behalf of a group of workers – a bargaining unit – they will usually try seek recognition by negotiating with the employer directly.”

To this she adds that the employer doesn’t have to agree to the request, but if agreement cannot be reached the trade union can seek statutory recognition by following the statutory procedure. However, in this situation, collective bargaining will only cover negotiations on pay, hours and holidays unless the employer agrees otherwise.

For Sharp, employers and employees alike need to be aware of what each collective agreement permits as it “sets out which categories or grades of worker are covered, how union representatives are elected, and what matters the parties can negotiate”. Where the agreement has been ‘agreed’ rather than foisted on an employer by the statutory process, Sharp says it can “also include health and safety, grievance and disciplinary processes, training and development and work organisation”. Sharp gives an example: the introduction of new technologies, the nature and level of staffing and the workplace facilities unions can use can all be covered by an agreed process.

He emphasises that “if a union has a strong presence in a workplace, but an employer does not want to recognise them, the union can apply to Central Arbitration Committee (CAC) for statutory recognition”.

Themistocleous points out, however, that this can only happen after the union has made a written request for recognition to the employer: “Unless an agreement is reached between all sides, the CAC will decide the application based on four tests.”

In outline, she says these are: whether the application meets the requirements (at least 10% of the workers in the union’s proposed bargaining unit must be members of the union and the majority of workers within the bargaining unit must be likely to support recognition of the union); if the application is accepted, whether the bargaining unit proposed by the union is appropriate and, if it is not, what the bargaining unit should be; once an appropriate bargaining unit has been agreed or decided, the level of support for the union in the bargaining unit. A secret ballot can be held to determine this; and what the method of collective bargaining should be if, once a union is recognised, the union and employer are unable to agree a method between themselves.

Should employers be concerned if unions speculatively contact employees with a view to joining? That again depends on the employer’s view and priorities. As Themistocleous, explains, there is no rule as to how employers should react if unions make contact with employees as this is “largely dependent upon what the business wants to achieve and whether their preference is to unionise or not. One thing is certain though, unions are not permitted to enter private property… and action can be taken by businesses if this happens.”

Depending on the viewpoint – employee or employer – Themistocleous points out that “once the CAC has accepted a union’s application for recognition in respect of a particular bargaining unit, no further application can be accepted from that union in respect of that bargaining unit or a similar one for three years”.

Unions - a force for good?

Themistocleous finds it interesting that some employers see unions as a very positive mechanism for negotiating change whereas others prefer to deal with employees directly on such matters. “No matter what the official view is,” says Themistocleous, “an employer must not treat employees detrimentally for taking part in union activities or dismiss them for the same, as to do so is unlawful.” Ultimately, as already outlined, employers do not have to accept recognition and it cannot be forced upon them unless the statutory procedure is followed and met.

For the TUC, however, Sharp hopes “that employers would respond positively [to any requests] and, if the union seeks it, put in place mechanisms for collective bargaining.”

It’s a fact of life that some employers, especially those with long memories, view unions with suspicion. Some fear that trade unions can make an organisation less flexible and less efficient, as well as increase the cost of labour. However, as a lawyer, Themistocleous thinks that unions can bring value to a company. In particular, she says that “union negotiation can help employees and employers to arrive at efficient outcomes as aggregating worker preferences and communicating them with a single voice to the employer can save the employer a huge amount of time and money.”

Sharp, understandably, takes the same line. He thinks that collective bargaining is inextricably linked to lower staff turnover, higher performance, more innovation and lower staff anxiety when changes are introduced – “so it can be very positive for employers. And of course, unions are very positive for workers too – it’s the whole reason we exist.”

The TUC, says Sharp, has seen workplaces with collective bargaining have higher pay, more holidays, and better protections in areas like sick pay, health and safety and equal opportunities. And as a bonus for all – as happy staff work better and stay – “employers also have better work-life balance polices, so they are more family friendly places to work. Staff are much less likely to express job-related anxiety in workplaces that are unionised.

“The difference is particularly striking for women with caring responsibilities.”

It’s a given that the aim of trade unions is to protect their members. Allied with the statutory right under the Employment Relations Act 1999 to be accompanied to a disciplinary hearing by a work colleague or trade union representative, employers do need to take trade unions seriously. As Themistocleous explains, when a disciplinary situation arises, a union representative can smooth the process – “trade union representatives are usually best placed to attend a disciplinary hearing with an employee, as they are usually most familiar with the process and have experience of other similar matters.”

On this last point Sharp explains that the right to be accompanied applies even when a union is not recognised for collective bargaining purposes: “It also applies for any disciplinary hearing of appeal, including a capability hearing, which could result in a formal warning being issued or other disciplinary action such as dismissal.”

While Bull is well aware that unless there is a union agreement there is no legal right to access the workplace other than to accompany individual members who require representation on disciplinary and grievance matters, she says that “many voluntary agreements exist in the sector and some have been secured using the CAC approach”.

She continues: “In many small and medium print sites, whilst the joint Unite-BPIF agreement does not exist formally, it is still honoured when it comes down to informing and consulting the union.”

Bull is very keen to highlight Unite’s approach – that it seeks to engage with companies on skills, apprenticeships, information and consultation forums and has a very active role representing the industry with government – “we work jointly to support the printing charity, sponsor the All Party Print Parliamentary Group and have a positive relationship with business in the sector”.

Positively avoiding unions

To avoid unions getting a foothold within a business in the first place requires forethought from employers – and a modicum of common-sense. Most cases of strife arise when individuals or a group feel that they aren’t being listened to and the workplace is no different says Themistocleous. “Where employees feel they have a good channel of communication to management, one where their concerns are listened to and action is taken by their employer to right wrongs, they are less likely to be receptive to unions.” It’s for this reason that some employers have their own elected committees and/or internal bodies where issues can be raised, and matters negotiated; employees in these circumstances rarely see the benefit in union membership that comes with a monthly subscription fee. Quite simply, these employers haven’t given employees a reason to want to unionise.

The calling of a strike

The biggest worry for any employer is when industrial action is called. But with a hint of reassurance, Sharp says: “Unions only pursue industrial action as a last resort. But the right to strike is a vital democratic freedom that ensures a fair balance of power within the workplace. But as the law stands at present, a strike has to be related to terms and conditions.”

For industrial action to go ahead, the Trade Union Act 2016 requires 50% of those entitled to vote to turn out, with a majority to vote in favour. For example, if 1,000 members are balloted at least 500 must turn out, and at least 251 must vote in favour before any industrial action can go ahead.

Sharp says that there are additional rules in workplaces deemed important public services. Here he says that 40% of those entitled to vote must support industrial action for it to go ahead. For example, if 1,000 members are balloted, at least 500 members must vote and 400 (80%) would have to vote for industrial action for it to take place lawfully.

But if action is on the horizon, Themistocleous thinks that the first question the employer must ask itself when threatened, is “has it been lawfully organised by a trade union and, if not, whether an injunction can be obtained to stop it?”

She warns that whilst this can be heavy handed and costly: “The threat of an injunction alone can be a very effective method of stopping unlawful strike action.”

Where industrial action cannot be stopped, the employer will need to consider what action it can lawfully take against employees. Again, Themistocleous points out that sometimes the threat alone is enough. She adds that “whilst the union is protected from legal action for organising a strike it does not necessarily mean that participants in that strike cannot be dismissed or have their pay stopped in some circumstances”. As a corollary, industrial action may also affect other issues such as redundancy pay or continuity of employment. There may also be ramifications for other non-participating employees.

In reality, the action that employers can take against employees as a result of official industrial action is limited. As Themistocleous knows, in most cases employees taking industrial action will be acting in breach of their contracts of employment and the employer will be entitled not pay them. However, she says: “If considering whether to dismiss employees for the same breach an employer will also have to consider whether such a dismissal will be unfair. By extension, an employer will have immunity from unfair dismissal claims, where the action is unofficial.”

In summary

Trade unions aren’t always the thorn in the side of business that they’re made out to be, and much of the militancy and extremism of earlier decades seems to have mellowed. However, it’s entirely true that they add another layer to the decision-making processes of an organisation, but they do have the potential to smooth over the cracks in any employer and employee relationship.

Reform the law - the TUC’s view

Tim Sharp of the TUC says: “Over recent years, the UK has become increasingly unequal in terms of both wealth and power. Economic inequality cannot be addressed without tackling the inequality of power within the workplace. This requires a revival of trade unions and collective bargaining.”

He adds that “there are huge swathes of the economy where people are struggling in low-paid or insecure work where union representation could make a real difference. This is particularly the case in [some] sectors where the workforce is disparate or hard-to-reach” because of where staff work. Sharp thinks that “it’s tough too in gig economy jobs where employers classify workers as self-employed without the same recognition rights as workers… and it’s hard in warehouses where employers refuse to give unions access.”

As it stands, Sharp thinks that UK law makes it incredibly difficult for unions to organise and recruit members. He says that the TUC wants reforms “to make a real difference for all workers”. He says this should include a right for unions to access workplaces to tell workers about the benefits of joining a union and rights to make it easier to collectively negotiate with their employer through a union.

Other reforms the TUC would like to see include broadening the scope of collective bargaining rights to include all pay and conditions, including pay and pensions, working time and holidays, equality issues (including maternity and paternity rights), health and safety, grievance and disciplinary processes, training and development, work organisation, including the introduction of new technologies, and the nature and level of staffing.

The TUC would like the establishment of new bodies for unions and employers to negotiate across sectors, starting with hospitality and social care.

Unite wants a rebalancing

Louise Bull thinks that where employers in print - and other sectors for that matter - decide not to engage it’s because the law is weak. She says that “the statutory bargaining legislation that came in 2000 does not give unions access to the workplace until we have members and excludes us from extending our influence and membership. The sector is also fragmented with the majority of print firms having fewer than 20 employees, so they are also excluded from the legislation.”

Bull reckons that the key to ensuring a strong voice and true balance in the workplace would be sectoral bargaining for all workers as “this would allow national pay discussions between trade unions, the employers and the government and give all workers access to pay uplifts and protections at work”.

BEIS says

A government spokesperson told Printweek that “we recognise that trade unions can play a constructive role in maintaining positive industrial relations”. He continues by saying that “we introduced the Trade Union Act in 2016 which modernised the UK industrial relations framework to support an effective and collaborative approach to resolving industrial disputes, balancing the interests of unions with the interests of the wider public”.


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