Labour Law and the Erosion of Worker Collectivism

1. Labour Law and the Erosion of Worker Collectivism John Kelly, Birkbeck The Changing Face of Collective Labour Law Seminar 11 Oct 2013

2. Arguing about labour law • Labour law literature comprises debate amongst academics as well as practitioners and legislators. • But how do you engage Conservative neo-liberal ministers in discussion about IR legislation and worker collectivism? • And how to engage with New Labour?

3. Arguing against reactionary policies • Hirschman (1991) The Rhetoric of Reaction claimed there were three types of conservative arguments against leftist policies: perversity, futility, jeopardy. • Can adapt and add to these to depict overall structure of BS arguments: • Perversity: law will have opposite effects to those intended. • Futility: law will have little, if any effect. • Jeopardy: law will damage other policy goals. • Illegitimacy: law is unfair. • Unreality: law is not based on a realistic appraisal of IR . • Ambiguity: some laws and Codes are convoluted and unclear.

4. Perversity • Strike ballots could prolong or complicate disputes rather than resolving or avoiding them (1969; Lewis & Simpson 1981). • Regulation of pickets could lead to disorder as strikers seek to avoid the responsibilities, and legal liabilities, attached to being a ‘picket organizer’ (Lewis & Simpson 1981). • Unlimited right to join any union could lead to inter-union conflict (1993). • Little subsequent evidence for these claims.

5. Futility • Restricting access to ITs won’t eliminate weak claims because many are already weeded out in preliminary hearings (Lewis & Simpson 1981). • Ballots haven’t deposed ‘militant’ union leaders or led to widespread rejection of strikes (1991, 2001). • Cutting worker rights in small firms won’t increase labour demand and cut unemployment as survey evidence shows labour law restrictions are not a problem for most of them (Lewis & Simpson 1981). • True, but govt responds with other measures such as workfare to drive up labour supply or new ballot rules.

6. Jeopardy • Workers in small firms already vulnerable so restricting their rights will make their problems worse (Lewis and Simpson 1981). • Right to dissociate will undermine orderly industrial relations based on closed shops (Lewis & Simpson 1981). • Not clear govt is concerned about vulnerable workers or committed to union-based order.

7. Illegitimacy • Codes of Practice increasingly used to extend legal regulation, not simply explain it - “unconstitutional legislation” (1990). • Even the IPM (now CIPD), and many employers, highly critical of early Conservative laws (1982; Lewis & Simpson 1981). • Post-1984 strike ballot amendments show the government’s aim is to promote union weakness not union democracy (Elgar & Simpson 1996). • Secondary action restrictions are unfair because there are no equivalent restrictions on employers (Lewis & Simpson 1981). • “Developments since 1980 have made the law almost incomprehensible to anyone except legal experts.” (1992: 7) • Tricky arguments given parliamentary majorities and absence of meaningful tripartism.

8. Unreality • “Labour policy versus the facts” (Lewis & Simpson 1981). • Ballots not always practicable e.g. dispersed workforces such as seafarers (1982). • Picketing often peaceful and orderly contrary to claims of violence and disorder (1982). • Judges often overlook day-to-day realities of industrial relations (2002). • True: statute law often based on unusual or atypical cases.

9. Ambiguity • Codes of Practice on closed shops, picketing and ballots vague, unclear and excessively detailed (1990; Lewis & Simpson 1981). • ‘Deeply held personal convictions’ clause in closed shop legislation extremely vague. • Aren’t many legal terms vague e.g. “reasonable”?

10. Conservatives and labour lawyers • There is scope for reasoned debate with politicians who: • are pragmatic • have weak or diffuse values • respect academics • respect serious evidence • But how to engage zealots, with strong values, low respect for academics (another vested interest group) and who treat anecdote and opinion as serious forms of evidence?

11. New Labour • “The turn of the century thus sees British collective labour law as a somewhat incoherent mix of suppression and regulation of organized labour while encouraging workers’ pursuit of a collective voice, but not necessarily through trade unions and where it is through trade unions the voice is to be rather muted.” (2000: 221) • “Unions have the right to organize industrial action only where they have taken extensive steps to minimise its impact.” (2005: 337)

12. Progressive labour legislation • “The first lesson from the 1970s is that unless the general climate is right any new procedure on recognition, whether or not it includes any legal sanctions, is likely to have only a limited impact.” (1991: 9) • ‘General climate’ derived from government policy but New Labour adaptation to neo-liberalism means trade unions and collective bargaining no longer seen as key mechanisms for social justice. • Labour preference now for mix of exhortation, individual legal rights and limited tripartism (Low Pay Commission).

13. Conclusions • How far should academic labour lawyers continue to focus on trade union legal rights? • Should we think more about indirect routes to worker rights and collectivism e.g. through labour standards, contract compliance, corporate governance etc?