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HRM 40 - Employee Relations and Employment Law
Consultant Report
Collective Consultation
Submission Date May 00
Cheap College Papers on Employee Consultation
Contents
1.INTRODUCTION
.THE EMPLOYMENT RELATIONS ACT (1)
.THE INFORMATION AND CONSULTATION DIRECTIVE4
4.TRADE UNIONS6
5.WHAT EFFECT WILL THE REGULATIONS AND LEGISLATIONS HAVE?7
6.CONCLUSIONS
7.RECOMMENDATIONS10
8.BIBLIOGRAPHY14
1.Introduction
1.1As Employee Relation Consultants, the purpose of this report is to advise Healthcare Professionals Ltd, a body representing employers in the health sector, of the result of changes to law relating to the collective consultation of employees.For this reason, the implications of the Employment Relations Act (1) and the Information and Consultation Directive will be discussed.
1.For the purposes of this report, the industry being advised is the Health Service, which at present recognizes many Trade Unions locally varying on the type of service being covered.The report discusses the relevant items from the legislation and regulations that will affect the Health Service.
.The Employment Relations Act (1)
.1The majority of the requirements of this Act form part of a group of reforms to employment law and trade union law outlined in the Governments White Paper, Fairness at Work, published in May 18.With regards to employee consultation the Act details new statutory procedures for the recognition and derecognition of trade unions for collective bargaining. This applies when unions and employers are unable to reach agreement voluntarily.
A large part of the Act consists of amendments to the Trade Unions and Labour Relations (Consolidation) Act 1 and the Employment Rights Act 166.
.The Act was last reviewed in February 00, with no major changes for employers. The review focused largely on the statutory trade union recognition procedures introduced by the Act and concluded that these are operating smoothly and there is no case for reforming the central features of the legislation. The review does however propose a number of amendments, including providing earlier access rights to unions in recognition cases.
The statutory trade union recognition process was found to have been remarkably successful with approximately about three times as many voluntary union recognition agreements as statutory claims. This is, perhaps, unsurprising since the statutory process is tilted in favour of recognition.
.The Information and Consultation Directive
.1OnMarch 00, the Information and Consultation Directive (Directive 00/14/EC), was approved.The Directive establishes a framework for national information and consultation arrangements and will apply to all UK undertakings with at least 150 employees or establishments with at least 100 employees.The Directive gives new rights to employees to be informed and consulted about a range of business and employment issues.The UK Government has until March 005 to translate this into UK law.
By March 005, legislation to comply with the Information and Consultation Directive comes into force. The proposed Information and Consultation Directive, which establishes a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the European Community, comes into force.
.For the purpose of the directive the following definitions are provided
•Information - the transmission by the employer to the employees representatives of data in order to enable them to acquaint themselves with the subject-matter and to examine it and
•Consultation - the exchange of views and establishment of dialogue between the employees representatives and the employer.
.The Directive should ensure that employees are consulted prior to decisions that seriously affect them. The courts will be likely to take a very dim view for instance of closure decisions announced to the press in advance of consultation with the workforce. The Directive will require employers to facilitate wide-ranging disclosure of information and consultation with employee representatives with a view to reaching agreement on changes in terms and conditions of employment and work organisation. Consultation will no longer be a cosmetic exercise, as it has been for some employers in the past, and must be carried out in such a way as to allow representatives to influence managements decision.
.4The Information and Consultation Directive brings about increased employee rights on various issues thus prevent employers from announcing changes that left their employees severely disadvantaged due to lack of prior consultation even with the presence of recognised Trade Unions.Recent high profile organizations who have left their staff in such a position include Corus Streel, Marks and Spencer, Rover and Royal Mail.
.5The Commission will, in consultation with the member states and the social partners at Community level, review the application of the Directive with a view to proposing any necessary amendments no later thanMarch 007.
4.Trade Unions
4.1The Employment Relations Act represents and attempts to find a middle way between the extreme action in the 170's and the then government's anti-union policies.The Act has a major impact on two areas the right to strike and trade union recognition. 'Trade union recognition' means the recognition of the union by an employer for the purposed of collective bargaining.Trade unions were first given a legal right to recognition in 171, in legislation, which was rejected by the unions.The second attempt was the Employment Protection Act 175, which created a cumbersome procedure whereby ACAS would ultimately decide whether a union should be recognised or not.Following a number of bitter recognition disputes, this right was abolished by the Conservative government in 180.
4.From 180 to 1, trade unions had the right to be recognised but where it was, it had limited rights as a result.A union is recognised where they have been given the right to negotiate on terms and conditions of employment, physical working conditions, hiring, firing and suspension, discipline, trade union membership or trade union facilities.
As is the norm in British employee relations (Farnham 17), multi-union recognition is the common in the National Health Service which recognises and works very closely with trade unions when making changes that will affect its employees.
5.What effect will the regulations and legislations have?
5.1The Employment Relations Act sets out a procedure whereby a trade union can obtain compulsory recognition.This applies to all employers with at least 1 workers.Where a union is seeking recognition the Act focuses on the 'bargaining unit', which is the workers who will be considered in relation to recognition.The Act sets out a procedure for the bargaining unit to be agreed between the employer and the union.Failing that, the Central Arbitration Committee (CAC), a body with members appointed by the Secretary of State from both side of industry, will decide.The bargaining unit will include workers in different locations, i.e. various hospitals and clinics and of different characteristics, grades and levels of management (i.e. nursing, ancillary, admin and clerical staff etc) and will clearly have an effect on the support a union can obtain and the results of any ballot.
Once the bargaining unit is agreed, the trade union has the opportunity to show that more than 50% of the bargaining unit are members and, if so, will automatically gain recognition, unless the CAC think that it is in the interests of good industrial relations, or for certain other limited reasons, to have a ballot.In any case other than automatic recognition, the CAC must decide whether the union has membership of at least 10% of the bargaining, at which point it will appoint an independent person to run a secret ballot.If recognition is to be gained the ballot must result in the union being supported by the majority of workers voting of whom at least 40% are workers in the bargaining unit.If unsuccessful, the union cannot make another application recognition for a further three years.
If the union achieves recognition, it can then agree with the employer the method by which they will conduct collective bargaining, if they cannot agree, the CAC will specify the method by which the parties must do so.Hence compulsory recognition has been criticised as toothless, the only remedy available to the trade union being a court order for specific performance.
5.The implementation of the Information and Consultation Directive provides trade unions with an opportunity to establish stake in workplaces, and if implemented carefully, could compliment the trade union recognition procedures and thereby give unions a stronger voice.The UK has until January 005 to implement the directive for organisations with more than 150 employees; until 007 for those with more than 100; and until 008 for those with 50 or more.The Directive will require the introduction of legislation whereby employers will be required to provide information about the business's activities, and consult on any measures which will threaten employment, and about decisions likely to lead to substantial changes in work organisation or contractual relations.Failure to comply with these obligations should be met by sanctions that are 'effective, proportionate and dissuasive'.These are minimum standards that can be improved upon and adapted to the British experience. But they need not be implemented in a grudging and minimalist way.The legislation should specify the purposes for which information and consultation must take place.
There are nevertheless a number of concerns, which will have to be overcome if the full value of the Directive is to be realised in the British context.The assumption is that it is to be an effective channel for the communication of information to workers' representatives, and an effective channel for worker consultation.
6.Conclusions
6.1In the 180's the NHS went through a period of major change in its consultative and negotiating arrangements below national level from which a number of developments are clearly recognizable.The 150 concept of a standard formula for the NHS has gone, and it has been increasingly recognised that individual Health Trusts and Authorities have developed ways appropriate to their own circumstances.
It is already clear that these ways involve considerable variation in structure, in operation and, more importantly, in the degree to which they formally extend and develop the role of staff side representatives.Genuine collective bargaining has now been recognised and established within the NHS at operational level.
6.The complexities of the Employment Relations Act create a legal minefield for unions to negotiate to achieve recognition.It was such complexities that led to the breakdown of the previous legislation on recognition, whereas the government's intent in their Fairness at Work White Paper was to create a procedure that was 'simple, clear and quick', but whether this has been achieved is open to question.Nevertheless there is little doubt that the Employment Relations Act 1 contributed to the increase in trade unions seeking recognition as employers worked out they would be worse off if the union pursued a statutory claim.Therefore have many employers have done voluntary deals in the hope of getting a collective bargaining process they can live with.
6.Effectively the Information and Consultation Directive will mean that in all forms of business activity from day to day decisions to situations such as redundancy and closure, employers will be increasingly obliged to inform and consult with employee representatives with a view to reaching an agreement.
In future, employees will have the right to be
ɨInformed about the business's economic situation;
ɨInformed and consulted about employment prospects; and
ɨInformed and consulted about decisions likely to lead to substantial changes in work organisation or contractual relations, including redundancies and transfers.
There are three possible stages to the requirement to inform and consult.Firstly, 'information' must include and cover the recent developments of the business and economic situation.There must secondly be both information and consultation on any measures that are envisaged, especially when this will result in significant changes to the work organisation on in contractual relations.Finally in matters such as sale or redundancy, consultation must be conducted with a view to coming to some agreement.
7.Recommendations
7.1In order to make the transition from current state to compliance with the Information and Consultation Directive as smooth as possible, initiatives, precautions and possible practices to ensure adherence to the current legislation and law in force should be taken. It is strongly advisable that employee participation and employee voice schemes should be actively encouraged to take place over the next few years.
The following recommendations are split into two parts.The first part seeks to advise on how to comply with the legislation with regards to collective consultation, and the second suggests ways in which to improve the communication channels across the Health Trusts.In the second section ways to inform employees are discussed.These are particularly important in non-unionised organisations.
7.1.1Redundancies
If a Health Trust is planning on making more than 0 people redundant within 0 days, it is likely that there is a need to collectively consult.0 days consultation is required is the workforce is to be reduced by more than 100, however asking for voluntary redundancy will not speed up the process even in cases where all redundancies are taken voluntarily.
The staff being made redundant will need to be from the same establishment for collective consultation to apply.Deciding on what an establishment is can be difficult as there are not firm rules.This may mean a particular clinic, hospital or site.
In some Health Trusts, various services may be shared across neighbouring Trusts but located in only one.Collective consultation also only applies if the redundant staff are employed by the same employer.Where there are different employers putting forward plans of redundancies, each one must propose to make more than 0 redundancies for the collective consultation obligation to stand.
It is possible to avoid collective consultation by making staff redundant in groups of less than 0, however, this is not looked upon favourably by tribunals.
7.1.Costs
As costs in the NHS are always an issue, with budgets tight and funding limited, a Trust may find it more cost effect to start consultation and give the employee their dismissal notice after about a week, as consultation can take place during the notice period.The notice can be retracted if the consultation determines that an employee will not be made redundant after all.
7.1.Who to consult
The NHS currently recognises many trade unions already therefore, when redundancies are planned, the concerned Trust should simply consult these recognised trade unions so that consultation may begin immediately.In the rare instances where no trade union is recognised, some other form of employee consultation should be consulted with.In such cases it is important to look at the suitability of the forum and the reason as to why it was initially set up as well as the staff it represents.In cases where this representation is not appropriate, the Trust should seek to elect staff representatives.In the instances where a group of employees are only partially represented by a trade union, the Trust should take steps to consult with the employee representative also.
Once collective consultation is completed, the Trust should then seek to consult individually with each employee affected.
7.1.4What to consult on
Consultation should be held with a view to reaching an agreement, even though this may not happen.Items to be covered should include whether redundancies can be avoided (if this is the subject matter), if the number of people affected can be reduced, the selection procedure to be adopted and in appropriate circumstances, how much compensation will be received by employees.
7.1.5How to consult
Employee representatives should be provided with the information required in a form that enables them to give it adequate consideration.The Health Trust should then allow the representative to put forward a response to its proposals in sufficient time to allow for dialogue in relation to the process.
7..1Communication
With the NHS Plan coming into to action in 001, the Health Service has been very efficient and active in communicating with its employees.This will be key when the directive comes into force and below are some further suggestions of how communications channels can be maintained.These are vitally important to non-unionised organisations in particular.
Notice boardsThis is a cost effective way of instantly getting messages across to employees.It is important to remember that although email is wide spread throughout the Trusts, there are many people who either do not have access to it or are not able to use email. This method is however ineffective if placed in a bad position and is cluttered and not maintained.
Letters to employeesThis method is useful in transferring information to employees on a single important topic.Circulation is either internal, by attachment to payslips or by posting it directly to the employees home.
Newsletters, Bulletins and Briefing notesThis is a good way of keeping employees up to date with changes happening in the Trust.Many Trusts have newsletters in circulation already keeping their staff up to date and informed of important matters and staff open meetings that are occurring.
7..Interactive Communication
MeetingsThere should be regular departmental and Directorate meetings held, allowing information to flow bottom-up as well as top-down.Meetings are a basic way of communicating and passing on information to staff.They can provide a forum for staff to raise issues of immediate concern to them.
Briefing/Discussion GroupsThe advantage of briefing groups is that they enable supervisors to take on the role of workgroup communicators.They also provide staff with a 'safe' environment amongst people they know to allow genuine two-way communication.
Conferences/SeminarsThese are meetings of selected employees who come together to discuss a particular issue/problem. The emphasis of these is placed on questioning and group discussion.
Quality CirclesConsisting of a group of people within an organisation, a quality circle is where the objective is to identify, analyse and solve problems on quality, productivity and other aspects of everyday working life.
No one way of communication will be sufficient to accommodate for anyone organisation, nor will all be necessary to implement.Each organisation is different as will the culture be, and this will be reflected in the communication channels chosen to use.
8.Bibliography
Books
•Bosanquet, N. (17) Industrial Relations in the NHSa search for a system. Pitman Press Bath
•Ewing, K. D. & Hendy J. (Editors) (00) A Charter of Workers' Rights.The Institute of Employment Rights, London
•Farham, D. (17) Employee Relations in Context. Institute of Personnel and Development, London
•Hollinshead, G., Nicholls, P. & Tailby, S (00) Employee Relations (nd Ed) Prentice Hall, Financial Times. Essex
•Mailly, R., Dimmock, S. J. & Sethi, A. S. (18) Industrial Relations in the Public Services. Routledge.London
Publications
•Personnel Today. "Legal Questions and Answers Collective Redundancies" by Sarah Howlett. 5th February 00
•Health Law Bulletin Number 58 (April 1) Beachcroft Stanleys Solicitors
Websites
•www.dti.gov.uk/er/erareview.htm- Review of the Employment Relations Act. February 00.
•www.legal500.com - "Information and Consultation Directive Published" Freshfields Bruckhaus Deringer. April 00
•http//www.partnership-at-work.com/eunat1.html (April 00)
•http//www.peoplemanagement.co.uk/archiveitem.asp?id=86(April 00)
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