The government's review of the Employment Relations Act, 1999 is currently underway. As are consultation procedures around the Information and Consultation Directive, the Temporary Workers Directive, the Agency Workers Directive and the European proposals for the extension of protection against discrimination. Work is also being done on proposed amendments to the TUPE Regulations and the Working Time Regulations as well as the thorny issue of employment status and entitlement to statutory employment rights.
Such activity suggests that employment law is high up the political agenda. But is the work hitting the target? Has the government delivered 'fairness at work'? Has the past and proposed legislation moved us on from the position where workers complain that they work the longest hours, for the lowest pay with the fewest rights and the shortest holidays in Western Europe? Current disputes suggest not.
Will the possible amendments to existing legislation bring us in compliance with our international obligations? One would hope so. Britain's trade union laws have been repeatedly found to be in breach of those obligations, most recently by the ILO in June 2002 and the European Court of Human Rights in July. Recent suggestions, however, that the Government might consider a further layer of anti-strike legislation in response to the firefighters claim for fair pay will do nothing to simplify our laws. Such a move would no doubt attract yet more condemnation from the ILO for the complex nature of our strike laws and our failure to protect basic rights of freedom of association.
Individual and collective rights at work
In a timely and authoritative report, the Institute of Employment Rights considers some of these issues in a 176-page book entitled A Charter of Workers' Rights. As the title suggests, the book promotes regulation of the employment relationship as the most effective way of delivering fairness at work, economic efficiency and social justice. The idea that we can rely on management prerogative delivering a 'trickle-down' concept of fairness is rejected. Rather the book promotes new or improved rights on issues including working-time, training, health and safety, all aspects of equality (race, sex, disability, sexuality, religion and age) transfer rights, protections for those facing redundancy or unfair dismissal and a section on pensions.
But the emphasis of the work is on collective rights and the role of trade unions in the workplace. In a modern society, it is argued, there should be no questioning or resentment towards workers fully participating in rule-making processes. Indeed workers should be positively encouraged to get actively involved in decisions which significantly impact on their lives. It is the workers who best understand how sites and services operate to maximum performance. Whether it is in health, education, transport or the fireservice - the best way to modernise a service is to ask those at the front-line of delivery how the service could best be improved. One of the main objectives of the Charter is therefore to consider how to promote effective procedures for collective bargaining at local, sectoral and national levels.
The Charter discusses proposals for extending rights of representation both individually and collectively. It suggests methods of simplifying and improving the recognition procedures and suggests the introduction of an unfair labour practices clause. It looks at the duties of ACAS and the role of contract compliance measures in promoting collective bargaining structures.
Similarly the Charter highlights the need for wider freedoms for workers to act together for mutual support as a prime means by which the imbalance of power between worker and employer can be addressed. To this end, the Charter makes a number of recommendations including simplifying and extending the right to strike, suspending the contract of employment during disputes (a practice common throughout Europe), simplification of the balloting provisions, the right to take solidarity action and to peaceful assembly at any workplace and the removal of the use of injunctions without full trial.
International standards
The Charter and more particularly the summary which accompanies it clearly identifies those many international human rights treaties, principles and standards which the UK has voluntarily ratified (and in some cases recently reaffirmed) but which we increasingly breach. The book argues that these laws should be implemented into domestic law in a similar way as the European Convention on Human Rights was transposed into UK law through the Human Rights Act, 1998. In that way workers can enjoy their protection and enforce them against employers who seek to gain competitive advantage by intensification of work rather than through investment and innovation.
A charter of workers' rights
1 Dignity and fair terms Every worker has the right to dignity at work, to a fair wage and to just conditions of work.
2 Health and safety Every worker has the right to a safe and healthy working environment.
3 Non-discrimination Every worker has the right not to be discriminated against and to be treated with equality in equivalent circumstances.
4 Job security Every worker has the right to security of employment (whether in relation to closures, redundancies, transfers or otherwise).
5 Income security Every worker has the right to fair income security in retirement, sickness and unemployment.
6 Union membership Every worker has the right to form and join a trade union for the protection of his or her occupational, social and economic interests, and not to be discriminated against on grounds of union membership, participating in union activities, or union representation.
7 Union autonomy Every trade union has the right to uphold its own rule-book, to spend its funds and to conduct its activities including industrial action in accordance with its rules, free from employer and state interference.
8 Industrial action Every worker has the right to take industrial action for the protection of his or her occupational, social and economic interests (or those of any other worker) without being in breach of contract, and without threat of dismissal or discrimination.
9 Union representation Every worker has the right of individual and collective representation by a trade union, including the right to collective bargaining and to participate in decisions at work.
10 Effective remedies Every worker has the right, from the outset of his or her employment, to effective remedies to enforce his or her rights, including adequate rights for workers' representatives to inspect and to obtain information.