Published on February 27, 2014
Contents What we mean by employee relations 1 Our approach 1 What we do 1 Some definitions 2 Trade unions 6 A recent assignment 8 The Collinson Grant (CG) assignment – Project Comet 9 Lesson 10
Employee relations What we mean by employee relations ‘Employee relations’ refers to the collective relationships that an employer has with its employees. These relationships may be with the entire employee group, or with smaller groups within it, but they are always with groups of employees. Employee relations is about the relationship between employees and employer that is conducted through communication with trade unions, staff associations or representatives of employees, or directly with groups of employees. The relationship an individual has with the employer, for example by agreeing, as an individual, to attend work and to be bound by disciplinary rules, is not ‘employee relations’. Our approach We believe in a dynamic approach. Employee relations needs managing. We are neither pro- nor anti-union. However, if a trade union is an obstacle to a client’s objectives, we reckon it is better to make plans to overcome this than to accept the status quo. So we may recommend that the company set up other channels of communication; or reduce the influence of the union; or enhance one union at the expense of another. If no union is recognised, we also draw up plans that promote the client’s objectives. This may mean winning the support of the workforce through initiatives to promote a helpful dialogue, for example. There are statutory requirements for collective action, such as to consult about redundancy, or to provide information. We ‘manage’ these activities, to retain control of the agenda, information and timescales, rather than passively apply the legislation. We reckon that efforts to talk to employees and tell them about the business are likely to help, rather than hinder, productivity. What we do Trade unions Draft and negotiate recognition agreements. Draft and negotiate collective agreements on procedures, rules and terms and conditions. De-recognise trade unions. Manage statutory applications to CAC for recognition by trade unions. Develop more effective bargaining structures. 1
Negotiate pay and variations to terms and conditions. Manage situations of unsatisfactory employee relations and industrial unrest. Deal with balloting and the taking of industrial action. Avoid and minimise threats of unofficial industrial action. Prosecute legal challenges to strikes and other industrial action. Manage collective dismissals during official and unofficial industrial action. Conduct collective consultation. Manage statutory consultation in collective redundancy exercises. Manage statutory Information and Consultation obligations. Inform and consult employees in proposed transfers of businesses. Draft and negotiate agreements on European Works Councils. Communications Develop plans to secure employees’ commitment to, company objectives. engagement with, and European employee relations Provide support to managers in handling HR issues, particularly in France and Germany. Provide the legal and HR skills to manage restructuring and the closure of plants in the UK and Europe. Provide local legal support in EU countries. Some definitions These notes are to provide non-specialists with short definitions of the various bodies, agreements and ‘industrial’ situations that frequently arise in employee relations. Trade union An organisation that consists wholly or mainly of workers whose principal purposes include the regulation of relations between workers and employers or employers’ associations. Full-time union official An employee of the trade union whose principal duties are to conduct negotiations with employers, recruit members and represent them at disciplinary, grievance and other hearings. 2
Employee relations Shop steward/Convenor An employee of the employer elected by the union members as their representative at work. Member An employee of the employer who has joined a trade union and is paying membership subscriptions to that union. Check-off The system by which an employer – in agreement with the union – deducts union subscriptions directly from its members’ wages. Independent trade union A Trade Union is independent if it is not under the domination and control of the employer and is not liable to interference by an employer arising out of the provision of financial or material support. Recognition (‘recognised’) The process by which an employer accepts a trade union as entitled to act on behalf of a particular group of workers. Voluntary recognition An employer and a trade union agree that the union is entitled to act for a particular group of workers. Statutory recognition A trade union has a sufficient number of members within a specific group of workers (bargaining unit) who, under a statutory process, vote or are likely to vote for a recognition agreement with their employer. Bargaining unit A group or groups of workers covered by a recognition agreement. Recognition agreement An agreement between an employer and a trade union (either orally or in written form) acknowledging the fact of recognition and setting out the terms of reference of the agreement. Statutory recognition agreement The Central Arbitration Committee imposes a method of collective bargaining upon an employer and a recognised trade union following a statutory application by the union. Derecognition The employer terminates the recognition agreement either summarily or with appropriate notice. 3
Statutory derecognition A procedure to be followed by an employer to end statutory recognition on the grounds that there is insufficient support for the union within the bargaining unit. Collective agreement Any agreement or arrangement made by a trade union and an employer to do with one or more of: the terms and conditions of employment engagement or non-engagement of workers suspension or dismissal of workers allocation of work matters of discipline union membership or non-membership facilities for trade union officials machinery and procedure for consultation and negotiation on any of the above. Collective bargaining A method or process of conducting negotiations about wages, working conditions or other terms of employment between an employer and representatives of workers with a view to arriving at collective agreement. CAC proceedings Legal proceedings brought by a trade union with a view to securing statutory recognition by an employer. Trade dispute A dispute between workers and their employer that is to do with terms and conditions of employment, with the engagement, non-engagement, termination or suspension of one or more workers, with allocations of work, with matters of discipline, with membership or non-membership of a trade union, and with machinery for consultation and negotiation on any of the above. Industrial action ‘Forms of industrial action are limited only by the ingenuity of mankind’ per Donaldson LJ. Generally speaking, industrial action is concerted action taken to put pressure on an employer in an industrial context. 4
Employee relations Strike A concerted stoppage of work by employees intended to achieve something or to call attention to something such as a rise in wages or improvement of conditions. Industrial action ballot A secret postal ballot for each workplace, which must comply strictly with detailed statutory requirements. Independent scrutineer An independent person appointed by a union to oversee a ballot and to be satisfied it is conducted properly, with security, and that there is no interference with the scrutiny. ‘Calling’ industrial action An official of a trade union, identified in writing to an employer as entitled to do so, informing the employees and employer of the decision to take specified industrial action. ‘Official’ industrial action Action that has been taken following a properly conducted ballot procedure. ‘Unofficial’ industrial action Any action taken that does not have the support of a properly conducted ballot. Repudiation If unofficial industrial action has been called, the union is liable to be sued unless the most senior officials of the union write to all members and the employer renouncing the action and distancing the union from the call. Picketing Activities of workers designed to persuade others to join their strike or to desist from delivering goods or services to their employer. Statutory protection for picketing It is lawful for a worker to be at or near her or his workplace for the purpose of peacefully communicating or persuading any person to abstain from working. Industrial action dismissals An employee has no right to complain of unfair dismissal if at the time of dismissal she or he was taking part in an unofficial strike or other unofficial industrial action. 5
An employee’s dismissal will be automatically unfair if the reason for it is that he or she was taking part in protected industrial action and it occurred within twelve weeks beginning with the day she or he started to take industrial action. Trade unions Overall size of independent Certified Trade Unions The latest returns to the Certification Officer for Trade Unions for 2011-12 recorded total trade union membership at 7,261,201. The major unions, with a membership of over 100,000, accounted for 6,503,981 members or 85.3% of the total. What is the significance of an employer’s recognising a trade union? The main advantages conferred on a trade union by legislation arise only if a union is recognised by an employer for the purposes of conducting collective bargaining and if it is independent. From recognition flow the rights: for employees to take reasonable, unpaid time off during working hours to take part in union activities for trade union officials to take paid time off work to negotiate with the employer and to take approved, relevant training to information from the employer to enable the union to conduct collective bargaining to be consulted on redundancies and to be informed and consulted in connection with the transfer of an undertaking. The recognition (or not) of a union to conduct collective bargaining has assumed greater significance since the introduction of the Employment Relations Act 1999. This is because, if such recognition exists, and provided that the recognised union is independent, another union cannot invoke the compulsory recognition provisions to compel the employer to recognise it in respect of the same workers. What is collective bargaining? Collective bargaining for these purposes is limited to the matters listed: pay hours holiday and any other matter that the parties agree to include (TULR(C) A, Schedule A1, paragraph 3). 6
Employee relations Pay for these purposes includes defined pension contributions and defined pension benefits. Can an employer inadvertently recognise a trade union? It is highly unlikely that an employer would inadvertently recognise a union. If it did, the recognition would be voluntary and it could derecognise the union. In the absence of a written or oral recognition agreement, there would have to be unambiguous evidence that the employer had customarily negotiated with the union on at least one of the following matters: terms and conditions of employment, or the physical conditions in which any workers are required to work engagement or non-engagement, or termination of or suspension from employment or the duties of employment, of one or more workers allocation of work or the duties of employment between workers or group of workers matters of discipline a worker's membership or non-membership of a trade union facilities for officials of trade unions and negotiation or consultation machinery, and other procedures, to do with any of the above matters, including recognition of the right of a trade union to represent employees in any such procedure. A union need only be recognised for one of these matters for it to be a recognised union. What should a recognition agreement include? The names of the parties making the agreement: it is important to record these accurately. Many of the constituent parts of large unions are unions in their own right. The agreement should be specific about the parts being recognised and their locations. Categories of staff: certain departments or categories may be excluded. Purposes of agreement: in addition to bargaining on pay, hours and holidays, the union may also be recognised for negotiation of other terms and conditions. Stewards: the number, methods of selection and payment, criteria for eligibility, facilities – including time off, office accommodation, visits from full-time officials – should be specified. Operation: the stages of each procedure and rules on the intervention of third parties should be set out formally. 7
Peace clauses: the agreement should indicate the obligation to maintain the status quo until a specified stage in a disputes procedure. Termination: the agreement should set down under what conditions and after what period of notice it may be terminated. In recent years, there has been a marked decline in the number of national, multi-employer, agreements, especially in the private sector, where there has been a trend for bargaining to be devolved down to company or even business unit level. However, national wage setting, through either collective bargaining or the pay review body process, still remains the norm in the public sector. As a recognition agreement covers an entire organisation or a specific bargaining group, it is nearly always the case that any collective agreement will cover more employees than there are union members. Can an employer derecognise an independent union? If the employer voluntarily recognises a union, it can derecognise it at any time. A compulsory recognition agreement set up following application to the CAC cannot be terminated by the employer for at least three years. If subsequently the collective bargaining unit changes because of: a change in the organisational structure of the business or a change in the activities of the business or a substantial change in the number of workers employed in the bargaining unit, then either party can apply to the CAC to decide what the appropriate bargaining unit should be. A recent assignment National Car Parks (Manchester) Limited (NML) operates off-street car parks in Manchester and Salford. 140 people were employed. Of the 45 Car Park Attendants, 18 were former employees of Manchester City Council (‘MCC’) who had transferred to NML and had far better terms and conditions of employment - pay, hours, sick pay, benefits and holiday entitlement - than the non-MCC employees recruited since then. NML recognises the T&G section of UNITE for the MCC staff only, but has historically involved the five shop stewards in disciplinary hearings and pay talks for all parking Attendants. Recently, UNITE recruited a Regional Officer who, during pay negotiations, had threatened to ‘gridlock’ Manchester with strike action if the pay demands were not met. The majority of the nonmanagerial employees are members of UNITE. NML decided to restructure the business. Car Park Attendants would be done away with and replaced by Mobile Customer Support Officers (‘MCS’), who 8
Employee relations would attend the car parks by bicycle. In total, with other posts being deleted, 67 jobs would cease to exist. But 30 new jobs would be created. The Collinson Grant (CG) assignment – Project Comet We were engaged to draw up a detailed plan to set up the new structure successfully by the first week of August. At the first meeting with the client, it was clear that the major concerns were the reaction of the union to the loss of the jobs (predominately of members of UNITE) and the requirement for those applying for the MCS jobs to ride bicycles. The client believed that industrial action was highly likely. The law requires collective consultation with the representatives of the workforce about the proposed redundancies with a view to reaching agreement about avoiding the redundancies and mitigating the consequences of them. If a union is recognised, the employer must consult with its officers. CG decided to divide the employees into two categories – those who were covered by the recognition of UNITE and those who were not. Our plan was to ensure that the employees’ consultative body contained more non-union representatives. The purpose was to ensure that UNITE did not dominate or bully the non-union side of the table. CG advised the client that, in our experience, UNITE would react aggressively to our proposed means of consultation. We predicted that it would disregard the numbers issue, object to all proposals, boycott the meetings, and ballot for strike action. We sought the election of four non-union employees and two from UNITE. The union opposed this, claiming to have members constituting the overwhelming majority of the affected workforce. CG advised the client not to concede on this and drafted letters setting out the legal obligations on employers to consult appropriately, which in our view also meant ‘proportionally’ Only two non-union representatives stood for election and were elected automatically. At the first consultation meeting, CG explained the rationale for the procedure for the consultations and the logic and requirement for Project Comet. A second meeting was arranged. The Regional Official attended in addition to the two UNITE stewards. He insisted that UNITE should be given the two unfilled seats at the table and sought a private meeting with the Managing Director. CG had predicted this and had advised that under no circumstances should UNITE be offered more seats or a private meeting. On our advice, the Regional Official was told that only two people from UNITE would be permitted to attend. If the Regional Official wished to remain, so be it, but one of the stewards would have to leave. He was told that no private meetings would be held and that the meeting would proceed. As predicted, the three people from UNITE walked out. 9
On CG’s advice, the meeting continued with the non-union representatives. We had planned for this and arranged for full minutes to be taken and signed off as accurate by all present. We set the date of the next meeting, issued the minutes to all the affected employees and wrote to UNITE inviting two officers to the next meeting. We explained at length our belief that we were fully compliant with the law, and the weaknesses in UNITE’s position. UNITE did not attend the next meeting. We followed the same routine after that meeting. At the next scheduled meeting, UNITE attended without the Regional Official. CG explained to the two stewards again why we believed that the client had acted properly, and provided a recapitulation of where we were up to. The stewards remained throughout the meeting and conceded that there would be no merit in re-running the election. The consultations went well. We had advised the client to agree to some of the union’s requests, to show goodwill. These concessions were well within budget and were planned as incentives to reach agreement in any event. The client conceded on some of the requests from UNITE. As the consultations drew to a close, UNITE began to threaten to ballot for industrial action. A ballot was conducted in July. The client was told that no industrial action would be taken. The dismissals have taken effect. Lesson It is essential to devise a plan to deal with all possibilities. Ensure that you can back up your case by using the law. Keep the door open to the union throughout, but strictly on the client’s terms. Keep all the employees informed of developments and provide this information immediately before the union has the chance to ‘spin’ the evidence. Finally, hold your nerve and stick to the plan. 10
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