What should Labour's policies be on workers' rights?

I like the characteristic balance and rigour of Gregor Gall’s assessment of the promises of the rival candidates for the Labour leadership (both Jeremy Corbyn and that other guy they have put up to lose to him) in relation to the workplace.

The observation that neither contender is really building upon the existing, unsatisfactory, arrangements for statutory union recognition rings true, and begs the question of how we should use the opportunity to respond to Labour’s “Workplace 2020” consultation to try to improve upon this state of affairs.

When Corbyn says “We will give people stronger employment rights from day one in a job, end exploitative zero hours contracts and create new sectoral collective bargaining rights, including mandatory collective bargaining for companies with 250 or more employees. We will create new employment and trade union rights to bring security to the workplace and win better pay and conditions for everyone. We will strengthen working people’s representation at work and the ability of trade unions to organise so that working people have a real voice at work” that’s all very good.

However, as Gall points out, the bar is set too high by restricting mandatory collective bargaining to firms with 250 or more employees, a limit which would invite the breaking up of companies into multiple smaller entities. What would mandatory collective bargaining look like anyway? How would it work in a multi-union environment? How would “sectoral collective bargaining rights” apply? (What is a “sector” anyway in the twenty first century?)

I think union activists are the people who need to find answer these questions.

Union mergers and industrial logic.

News this week has included the decision of members of media union, BECTU to merge into the (former) civil service union, Prospect. Among the consequences of this are that BECTU’s affiliation to the Labour Party will end.

BECTU’s annual return to the Certification Officer for last year records a paying membership of a little over 26,000 and assets of £5.5 million (but liabilities of over £7 million the great bulk of which is a pension fund deficit). The membership figure is remarkably steady in annual returns going back to 2003, although the financial liabilities associated with the pension scheme seem to have got worse over the years. The annual return for Prospect records 104,965 members, so it is pretty clear that this is a defensive merger driven by concerns about the long term viability of the smaller organisation.

There is precious little indication of any industrial logic to this merger, but then industrial logic has little to do with the structure of our movement in the twenty first century.

The structure of the UK trade union movement has never been particularly rational from the point of view of organising the working class, with successive layers of unions emerging over time. Craft unions (representing the particular interests of skilled workers with particular “trades”) developed from the mid-nineteenth century (the most noteworthy being the former Amalgamated Engineering Union, now part of UNITE) and were joined by general unions of the semi-skilled and unskilled workers from the 1880s onwards (including the forerunners of the GMB and of the TGWU – now also part of UNITE).

Industrial unionism (the organisation of all workers in a particular industry in one union) is a development associated with the syndicalism of the early twentieth century (and the RMT is the most significant product of that period today, albeit it exists alongside a craft union, ASLEF), but the public sector trade unions that grew with the public sector in the twentieth century also have certain characteristics of industrial unions.

UNISON’s rules maintain that we aspire to be an “industrial union” for all public services, but the reality of organising a fragmented workforce into a union which recruits the majority of new members online is that we are drifting towards being a general union, as both the GMB and UNITE already are.

Those groups of workers who are fortunate enough to have trade unions dedicated to their particular interests (such as teachers and firefighters for example) will not easily be tempted (other than by a financial crisis of their existing organisations) into joining the giant trade unions which increasing dominate our movement numerically, but those giants cannot be disaggregated (and are too large and jealous of each other usefully to be brought together) so we won’t get a rational structure for our trade union movement for the foreseeable future.

BECTU won’t however be the last of the movement’s (relative) minnows to be swallowed by a bigger fish.

What should we do about the ACAS Code of Practice on Discipline at work?

This is a long blog post on a niche blog for people who care about workplace trade union organisation and the representation of workers so if you’re looking for amusing pictures of cats (or a contribution to the increasingly tedious and entirely unnecessary election for Labour Party leader provoked by the risible challenge of the utterly unconvincing Owen Smith) then look elsewhere. I want to think about what experienced trade union activists should be doing to shape Labour Party policy on workplace issues, knowing that the official structures which are supposed to enable this interaction are ossified beyond repair.

More than twenty years ago, as a (relatively) young Branch Secretary who was often representing workers at the Croydon tribunals, I was invited to the party to mark twenty five years of the London Region of the Advisory, Conciliation and Arbitration Service (ACAS). Since I was not then (as I am not now) in the exalted position of being sent by UNISON to the annual gathering of the Trades Union Congress (TUC) I wasn’t used to an event with free wine and got a little inebriated.

Although I knew that ACAS was part of the state apparatus and that the state exists to perpetuate the conditions for profitable capital accumulation I nevertheless knew that ACAS was a not unhelpful creature for workers, and not only because in those days there were many admirable Conciliation Officers who were themselves good trade unionists. ACAS was part of the institutionalisation of the balance of class forces in the 1970s and of the attempt to divert the otherwise uncontrolled (and "unofficial") workplace power of organised labour in the workplace into formal channels, which neither Barbara Castle with “In Place of Strife” nor the Heath Government, with its Industrial Relations Act , could achieve, but the Wilson/Callaghan Government achieved by establishing novel statutory rights for workers, to be enforced by tribunals which would be guided by Codes of Practice produced by ACAS.

In those days the ACAS Code of Practice on Discipline at work was a very useful tool in representing members at employment tribunals – and by extension in internal disciplinary hearings. Paragraph 3 specified that workers should know what they might be disciplined for and paragraph 8 emphasised that it was particularly important that workers knew in advance what might count as gross misconduct. I cannot count how many times I referred to those paragraphs in the 1990s to fend off employers attacking individual workers. The latest version of the ACAS Code of Practice on Discipline bears the marks of decades of restricting “red tape” and is of far less use. Even this attenuated code does not apply to sickness dismissals, which are increasingly common.

Employers in 2016 have far too much discretion in how they treat employees and - as trade unions have retreated from a proactive approach to tribunal representation to a defensive approach which is motivated more by a desire to limit our professional indemnity premiums than by a commitment to members’ rights – we cannot rely upon the official structures of our movement to do much to try to police the conduct of employers (just at the same time as our unofficial strength has been limited by declining membership density).

When I was able to represent UNISON members at employment tribunals I took the approach of taking to the tribunal every case where one of our members had been dismissed against their will by our main employer. This proactive approach could sometimes get UNISON into trouble (although not with the Council who never got costs awarded against us in any case I was dealing with).

The knowledge that we would take the most marginal cases to the tribunal kept the employer on their toes when it came to complying with their procedures in every case. Now that employers realise that trade unions won’t take marginal cases to tribunal they are really under very little pressure to comply with their own procedures in such cases, even where those procedures are collective agreements incorporated into the contracts of employment of their employees. Since we now have a growing cohort of full time officials who have never led a strike and never taken a case to an employment tribunal, and are trained to believe that the purpose of a trade union (other than to recruit members) is simply to ensure that our members receive their legal rights, we need to think a bit about how to increase those rights if we are to give purpose to the future working lives of our own union employees.

The approach to trade unionism which sees it as about enforcing legal rights is utterly worthless to the majority of UNISON members who work for public sector employers who recognise trade unions, where any UNISON branch worth our salt will have ensured that our members enjoy rights through contractual procedures which exceed any statutory minimum. It is also of little value to the growing minority of our members working in the barely regulated private sector (whose legal rights are often so minimal as to be barely worth enforcing). Our legal rights (as part of the superstructure of society) recede as our organised strength is dissipated in the workplace (the economic base).

The Labour Party’s Workplace 2020 consultation invites us to say what we think should be done – and I think we should be proposing a return to a far more prescriptive ACAS Code of Practice with greater statutory force – perhaps there should be a statutory minimum disciplinary procedure which applies in the absence of an alternative contractually agreed procedure (and sets a floor for the rights of workers below which an alternative contractual procedure cannot go)? (I’m suggesting something much more than applied briefly in the last decade).

Such a procedure could also cover sickness (and capability) dismissals as well as conduct dismissals, and dismissals which occur after an employer has failed to follow the minimum requirements of a statutory procedure could be deemed automatically unfair (perhaps with a guaranteed minimum level of compensation in such cases). If the introduction of such a statutory minimum procedure accompanied (as it should) the introduction of employment rights from day one then it should probably include – or also be accompanied by – a statutory minimum procedure governing probation periods and probationary dismissals.

I don’t want to leave the business of responding to Workplace 2020 to the official structures of our movement. I think that those of us who have been at work in the workplace over the last generation of retreats and defeats should be thinking through and spelling out what we want to change in order that our children should have a better working life. I am thinking of drafting a model disciplinary procedure to be given statutory force if and when we get a Labour Government worth having.

Am I alone in wanting to do this?