Making collective bargaining work

Notes

1. Katja Hall, the CBI's deputy director-general, has said, ‘It's a concern that the UK's growing skills gap is now seen as the number one workforce threat to the long-term health of its economy’ ( The Guardian , 22 December 2014, http://www.theguardian.com/business/2014/dec/22/new-jobs-pay-rises-uk-workers-skills).

2. BBC News, 30 January 2014, at http://www.bbc.co.uk/news/education-25945413.

3. A restructuring of government would be required and the transfer of relevant responsibilities from the Departments with responsibilities for Work and Pensions; Business, Innovation and Skills; and Education, respectively.

4. These proposals go a little beyond those of the TUC in TUC, The Road to Recovery (Touchstone, 2010); our proposals are the complete antithesis of those proposed by way of reform to the French Labour Code in the Combrexelle Report of 2015.

5. Such forums are familiar features of wartime economic planning but there is no lesser need for inclusive planning in times of peace than in war.

6. Note the spread in levels of collective bargaining in J Visser, S Hayter and R Gammarano, Trends in Collective Bargaining Coverage: Stability, Erosion or Decline (Issue Brief No 1: Labour Relations and Collective Bargaining, ILO, 2015), pp 6–7.

7. So, for example, the European Commission Report, Labour Market Developments in Europe (EC, 2012) states that the new economic and political instruments of control should result in a ‘reduction in the wage-setting power of trade unions’ (p 104). The principal techniques of change brought about by this policy have been (i) abolition of national minimum wage fixing agreements, (ii) limiting the duration of the effect of collective agreements (to, for example, 1 year in Spain and 3 months in Greece), (iii) increasing scope for derogating from sector-wide agreements, (iv) restricting the extension of collective agreements to other employers (by removing the compulsion for all employers in the industry to pay the agreed rates) and (v) extending ‘collective bargaining’ arrangements to non-union groupings in breach of ILO Convention 98. In consequence ‘…the reforms have resulted in a dramatic decline in collective bargaining coverage, a breakdown of collective bargaining, a strong downward pressure on wages leading to deflationary tendencies, downward wage competition and an overall reduction in the wage-setting power of trade unions’ (I Schömann, ‘Reforms of Collective Labour Law in Time of Crisis: Towards a New Landscape for Industrial Relations in the European Union?’ in D Brodie, N Busby and R Zahn (eds), The Future Regulation of Work, New Concepts, New Paradigms (2016), at p 152). Collective bargaining coverage decline across Europe has not been uniform but is striking, especially, where sector-wide bargaining has been destroyed in favour of enterprise-level bargaining. Thus, in Portugal, 172 sector-level agreements in 2008 reduced to 36 by 2012; coverage fell from 1.9 million to 225,000 workers in the same period. In Romania, 98% of workers were covered by collective agreements in May 2011, but only 36% by the end of 2012.

8. The editors briefly describe this history in their Manifesto for Collective Bargaining , above, at pp 24–28.

9. Employers' representatives would be nominated by representative employers' associations or other bodies, and workers' representatives would be nominated by trade unions in the sector in question.

10. Including the objective of eradicating the gender pay gap.

11. This is necessary to counter the antipathy of the common law to collective agreements as shown in cases such as Malone v British Airways plc [2010] EWCA Civ 1225; [2011] ICR 125. On the Hayekian attitude of the common law, see M T Moore, ‘Reconstituting Labour Market Freedom: Corporate Governance and Collective Worker Counterbalance’ (2014) 43 Industrial Law Journal 398.

12. As in the French Labour Codes, Article L 132–13. As to ‘inderogability’ see Lord Wedderburn, ‘Collective Bargaining at the European Level: The Inderogability Problem’ in Labour Law and Freedom , above, p 212.

13. OECD, Economic Outlook (1994).

14. Though the CAC could order one if circumstances so dictated.

15. And see Lord Wedderburn, The Future of Company Law: Fat Cats, Corporate Governance and Workers (Institute of Employment Rights, 2004), and the commentary thereon in W Njoya, ‘The Problem of Income Inequality: Lord Wedderburn on Fat Cats, Corporate Governance and Workers’ (2015) 44 Industrial Law Journal 394.

16. As opposed to the current company law obligation in the United Kingdom which is merely ‘to have regard’ to the interests of the employees (not workers) in fulfilling the directors' duty under Companies Act 2006, Section 172, to act in a way that they consider in good faith will promote the success of the company for the benefits of its members (shareholders). See E Ndzi, ‘Directors' Duties and Employee Interest: The Case of Zero Hour Contracts’ (2016) 37 Comp Law 135.

17. We omit detailed proposals such as to numbers, proportions and possible exemptions for very small enterprises, and as to representation on parent, holding, subsidiary and other related entities.

18. As suggested by E McGaughey, in ‘Votes at Work Will Raise Productivity: Behavioural Evidence’ in Dromey (ed.), above, p 24. Again, we leave for later consideration the detail of the proportions, exemptions and application to related entities.