Working for representation

Later this month, the Employment Lawyers' Association will host a debate where the speakers will tussle over whether the trade union movement is dead.

The speakers against the motion will be John Monks, general secretary of the TUC, and Cherie Booth QC, with Digby Jones, director general of the CBI, and Andrew Clarke QC of Littleton Chambers for the motion.In the UK, until comparatively recently, the history of collective representation of workers and the trade union movement were one and the same.

Traditionally, workers' rights, if upheld in any collective form, were upheld by trade unions - the strength of which has waxed and waned over recent decades.

Union membership averaged 12 million in the 1970s, but stands at just 7 million today.

Although the trade union movement has a proud tradition, in comparison with many countries in mainland Europe, the UK has no great history of resolving issues, be they contentious or non-contentious, on a collective basis.Currently, employers in the UK are required to consult with their employees collectively under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of mass redundancies and under regulation 10 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 in connection with TUPE transfers.

Other than this, UK employers are not required to engage in much other collective consultation at all, unless employers and their workforces have chosen to deal with other issues on a collective footing.Until less than two years ago - save for a brief period in the 1970s - employers were not even obliged to recognise unions for any collective bargaining purposes.The landscape seemed set to change with the regime contained in the Employment Relations Act 1999, requiring employers to recognise trade unions for certain purposes (collective bargaining on pay, hours and holidays as a minimum) if a sufficient proportion of the workforce wanted it.The legislation may not have brought about such change - to date there have been far fewer claims for union recognition than anticipated - but the TUC says that around 300 voluntary recognition agreements have come into being since the legislation was first mooted.Other UK legislative changes are promised to increase trade union power and importance in the workplace - in particular, the right for workers to be accompanied at formal disciplinary and grievance hearings by a union representative.However, of equal note has been the impact of European legislation, placing as much, if not greater, importance on collective representation of workers by other bodies.

In part, this is the result of new legislation with an emphasis on 'social partnering' and which offers incentives.

To give just one example, there is the greater freedom given to employers who negotiate such agreements under the Working Time Directive.But there are sticks as well as carrots.

Additional EU legislation, both in place and promised, will oblige employers to engage in collective consultation on a much wider range of issues than now.How far are trade unions still the repositories of power and influence in the UK workplace? How, if at all, does the UK worker wish to be represented collectively, about what and, above all, by whom?These and other issues will form part of the forthcoming debate, the result of which will be of interest to employment lawyers and the business community as a whole.Christine O'Brien is head of employment law at City-based Baker & McKenziel For more information regarding the Employment Lawyers Association or the debate (to be held on 18 September 2001), contact Lindsey Woods, ELA Secretary, e-mail address: linds@btinternet.com