Resisting Employer Attacks on Workers’ Rights

3 February 2011 Keith Ewing There is a virus sweeping British workplaces — and it’s not the flu virus. It is the virus of naked and unaccountable employer power, with employers now taking advantage of the economic crisis to make workers pay.

Commentary icon3 Feb 2011|Comment

Keith Ewing

Professor of Public Law, King’s College London

3 February 2011

Keith Ewing

There is a virus sweeping British workplaces — and it’s not the flu virus. It is the virus of naked and unaccountable employer power, with employers now taking advantage of the economic crisis to make workers pay.

This was thrown into sharp relief when I had the great privilege of addressing a group of Unite members in the transport sector recently. The purpose of the session was to consider recent legal cases in the European Court of Human Rights on the right to strike, and how they may be used as a platform for litigation to help British unions to challenge the
anti-union laws that operate here.

In the course of the meeting it soon became clear why the law needs to be changed. I heard things that took me back to the 1980s. Employers giving workers 90 days notice to terminate collective agreements and to introduce new and inferior terms and conditions of employment. Or employers giving workers 90 days notice to terminate their contracts and then offering to rehire them on new but inferior terms.

This is no doubt being done on the advice of some loathsome lawyer employed to extend the equality gap, now at its widest point since the 1920s. No doubt too it is being done under cover of redundancy laws, which by requiring employers to consult 90 days before redundancies were designed to protect not destroy workers’ rights.

But it is a total abuse. If a collective agreement is terminated on 90 days notice, that does not affect the contract of employment. The terms of the collective agreement remain part of the contract of employment and can only be changed with the agreement of each of the workers concerned.

If the employer gives 90 days notice to terminate the contract for reasons of redundancy, there is no need for workers to accept the new terms. Those with residual bargaining power would be free to give the employer a two-fingered salute with the message to phone back when the original terms are restored.

By calling the employer’s bluff and by refusing to accept the new terms after having been given notice, the workers are not taking industrial action. There is no need to ballot and no need to give notice to the employer of intention to ballot or intention to strike. London Mayor Boris Johnson should try running a fire engine without a crew.

What is even more alarming is that some employers are now dispensing with the need to secure worker agreement to changing terms and conditions, by resorting to what can only be called “master and servant” contracts. These are contracts that give the employer the power to change any of their terms at any time.

It is a master and servant contract of this kind that BA is imposing on new cabin crew and which the British Airlines Stewards and Stewardesses Association is quite rightly trying to stop. A leaked copy of the contract includes a term that says that “the company reserves the right to make reasonable additions and/or changes to any of your
terms of employment from time to time.”

A term of this kind was challenged in the courts recently in a case involving Asda, the British incarnation of Walmart — the biggest private-sector employer in the world — and also the most notoriously anti-union. The challenge to these pernicious terms failed, though quite how they can be said to be fair is beyond imagination.

If the need to reform the strike law to stop the spread of this virus is compelling, so too is the need for some palliative measures in the short term. As I pointed out to the Unite activists, in some cases it will be possible to get the employer before a county court to recover money unilaterally withheld.

But using the county court to recover unpaid money will not be possible in all cases, as, say, where the employer increases working hours or reduces staffing. It struck me, however, that there may be a role here for the — rightly
— much-maligned but equally muchneglected information and consultation procedures introduced in 2004.

True, matters have come to a sorry pass when the only legal line of defence between workers and their employer is the information and consultation regulations. But at a time when trade unionists are being thrown into battle with bows and arrows against tanks, any weapon to support guerilla campaigns is to be embraced.

The regulations require employers to inform and consult, with a view to reaching an agreement, about changes to employment relations — any employer who fails to comply can be ordered to do so by a court-like body called the central arbitration committee, and ultimately fined.

The problem is that many workplaces either do not have information and consultation procedures in the first place or have been seduced into having an opted-out non-legally binding kind, which means that they cannot be enforced by the arbitration body and are treated with contempt by employers as a result.

In resisting the cuts it is essential that we make full use of all legal weapons at our disposal. This means telling employers that we want proper information and consultation procedures and that we want to discontinue the nonsense of the voluntary procedures which we naively accepted.

What will this mean in practice? It would mean that when employers are thinking about changes, they will have to involve the union, they will have to include the union with a view to reaching an agreement and they can be ordered by the
arbitration body to do so and be fined if they do not.

But before this can be done, these procedures will have to be established. Where there is no existing information and consultation procedure it will need the support of only 10 per cent of the workforce. Where there is already an opted out non-legally binding procedure it will need 40 per cent support.

This could start tomorrow. The demands of the legislation are easily achievable in a well-organised workplace. It is not a panacea, but it is a procedure that can be used to buy time, to increase options and place obstacles in the path of employers who are otherwise free to do what they like. It is clear to me after talking with the Unite activists that it would help trade unionists on the ground.

But what would be a bigger help — at a time when working conditions are being attacked by employers and employment rights are being ravaged by the Con-Dem government’s proposed new bosses’ charter — is the full restoration of the right to strike, in line with international standards.

The European Court of Human Rights has provided an opportunity to regain these rights, even against a hostile government such as that of Cameron and Clegg. We should seize it with both hands. In the meantime, we also need to be making bricks out of straw.

This article first appeared in the Morning Star on Tuesday 31st January 2011