UNFAIR LABOUR PRACTICES: TRADE UNION RECOGNITION AND EMPLOYER RESISTANCE BY K D EWING, SIAN MOORE AND STEPHEN WOOD
Keith Ewing is President of the Institute of Employment Rights. He is Professor of Public Law at King’s College London and co-editor with John Hendy QC of the Institute’s publication A Charter of Workers’ Rights. Sian Moore is Senior Research Fellow at the Working Lives Research Institute, London Metropolitan University. Before this she worked on the Leverhulme Trust Future of Trade Unionism in Britain Programme at the Centre for Economic Performance at the London School of Economics. Stephen Wood is Research Professor and Deputy Director, Institute of Work Psychology, and Co-Director, ESRC Centre of Organisation and Innovation, University of Sheffield. He is also an associate of the Centre for Economic Performance at the London School of Economics and Chief Editor of the British Journal of Industrial Relations. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement. ISBN 0 9543781 4 8 October 2003 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail office@ier.org.uk www.ier.org.uk printed by Upstream (TU) 020 7207 1560 £6.50 for trade unions and students £20 others THE
INSTITUTE OF
E M PLO Y M E N T RIGHTS
unfair labour practices: trade union recognition and employer resistance by K D Ewing, Sian Moore
executive summary
and Stephen Wood
i
contents
CHAPTER ONE
introduction the procedure in operation the government’s consultation document the booklet in outline
1 2 3 4
CHAPTER TWO
the boundaries of permitted employer resistance rights of employers responsibilities of employers employer strategies and tactics
6 7 8 9
CHAPTER THREE
pre-empting trade union organisation
12
creating other channels for worker involvement 13 negotiation with non-independent trade unions 14 frustrating worker choice: employer selection of union 16 CHAPTER FOUR
frustrating employee free will? employer persuasion, coercion and interference persuasion and campaigning inducements and threats undermining and interfering with trade union access
19 19 23 27
CHAPTER FIVE determining the bargaining unit forcing a ballot despite majority membership changing the composition of the bargaining unit
30 30 35 37
contents
shaping and using the legal process
iii
CHAPTER SIX
legalism and litigation the use of lawyers identifying legal technicalities litigation
40 40 43 45
CHAPTER SEVEN
responding to the emerging problems gaps in the statutory procedure the role of the CAC what needs to be done?
48 48 50 52
unfair labour practices: TU recognition and employer resistance
CHAPTER EIGHT
iv
conclusion and recommendations
55
references
60
Institute publications
61
WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989. As a labour law “think tank”, supported by the trade union movement, its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status. The Institute has attracted wide and distinguished support. Among the membership are John Hendy QC, Professor Keith Ewing, Lord McCarthy and the general secretaries of Britain’s largest trade unions. The results of the work of the Institute are published in papers and booklets. It also provides short articles, free of legal jargon, for trade union journals and other publications. The Institute provides tools of analysis and debate for the trade union movement in the area of labour law. We are not a campaigning organisation. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, it recognises that law has a part to play in influencing the employment relationship, both individually and collectively. Funding is from various sources, including subscriptions which entitle subscribers to a copy of all our new publications. If you are interested in subscribing or would like to know more about the Institute, then contact us at 177 Abbeville Road, London SW4 9RL, 020 7498 6919.
£6.50 TRADE UNIONS AND STUDENTS £20 OTHERS