FAIRNESS NOT FAVOURS AT
WORK?
Institute of Employment Rights Seminar
June 2007, London
Professor Roger Seifert, Keele University
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BEGIN AT THE BEGINNING
• Social inequality before the labour market, and
power inequality within the market
• Therefore the employment relation is uneven: a
market exchange of work for wages becomes
legalised as the contract of employment
• Managers have the right to manage that
relationship through authority based on ownership,
law, ideology, and state power
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THE LOADED GUN –
MANAGEMENT’S RIGHT TO MANAGE
• A right derived from ownership of private property -exclusive control against all comers
• The economic reality within the Principal-Agent problem
becomes a legal reality with the 1831 Truck Act when
managers can contract and therefore discipline workers
• So unhappy workers are ‘free’ to leave their jobs and
therefore do not need rights and representation … but free
as in ‘you are free to leave the room but I will shoot you if
you do’
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MORE BEGINNINGS
• Workers, those being managed, have rights to oppose and
resist based on trade union power and institutional support:
collective bargaining and state power
• The state as controlled by the elected government
represents the ‘national’ interest in the ‘common good’
• and therefore laws, related institutions (ACAS, EAT etc)
and employers seek to impose both the idea of and the
practice of ‘good’ industrial relations on workers and their
organizations
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NEW LABOUR AND THE TRADES
UNIONS: Fable of the Beaver
•
•
•
•
Subordinate to the neo-liberal ‘business case’ of …
Higher labour productivity (the labour problem)
More flexible and deregulated labour markets
In pursuit of the 3Es … economy, efficiency and
effectiveness
• Replacing conflict with partnership
• The Beaver’s balls: what kind of deal between
representatives of labour and the Labour government?
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REALITIES
• At work everyone functions through rules set by managers for the
employer: what are they? Who makes them? How are they made? Who
enforces them?
• This becomes job regulation of both task and conditions under which
the task is undertaken
• Breaches of rules are therefore seen as an attack on the purpose and
nature of the business itself and therefore a threat to the objective of
labour management: higher productivity through the maximum
utilisation of labour
• Methods of stopping breaches: control through fear and control
through the market, and control through regulation
• Rights at work become part of the problem, because elements such as a
hearing, being accompanied, having a meeting form the basis for
‘decoupling’ of trade union representation from the world of the
worker.
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DEREGULATION AND THE
ROOTS OF ‘ROUTES’
• ‘Routes to Resolution’ (DTI, July 2001) survey formed the
basis for an evidence-based change to ET functions and
workplace impasse resolution mechanisms (2002 Act and
2004 regulations)
• IF TRUE, then
• we would have expected a surge in cases out of line with
other indicators
• it would be evidence of the so-called compensation culture
• it would be evidence of the need to impose the 3Es of New
Public Management on litigation processes
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WHY DID THEY NOT LISTEN AT THE
TIME?
• IF FALSE, then
• there will be no surge but steady rise caused by changes in the labour force
(more women and more discrimination), changes in labour markets (more
volatile), changes in ET jurisdiction and lawyers’ behaviour, changes in
union membership (less representation).
• cannot always settle at the workplace level and therefore justified claims will
not be resolved leading to
• quitting/turnover; absenteeism; more pressure on union workplace reps; less
justice for individuals at ET level; perversion of ET function; more work
elsewhere in the system e.g. ACAS; further worker disillusion; and finally
• no benefit as alleged for SMEs; larger employers will rush to the bottom;
greater employer controls over employees and the employment relationship
to deliver flexible and cheaper labour costs
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FAIRNESS NOT FAVOURS?
• Define a grievance …
• Key issues in the substance and handling of grievances and
discipline cases: recent studies from ACAS, DTI and IRS
show little or no impact (positive or negative) from the law
and regulation despite the three-fold shining path
• It is worse for those in small businesses, non-unionised
workplaces, and sectors with a high proportion of low paid
and low skilled workers especially for women, BME
groups, and the young --- where there is little regulation
and weak labour markets
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EXAMINATION OF GRIEVANCE
RECOMMENDATION NO 130, ILO 1967
• The grounds for a grievance may be any measure or
situation which concerns the relations between employer
and worker or which affects or may affect the conditions of
employment of one or several workers in the undertaking
when that measure or situation appears contrary to
provisions of an applicable collective agreement or of an
individual contract of employment, to work rules, to laws
and regulations or to custom or usage of the occupation,
branch of economic activity or country, regard being had to
principles of good faith
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THE INDIVIDUAL IS THE
COLLECTIVE
• The nature of collective bargaining: a bargain between two sets of
collectives (abstract forms of Labour and Capital)
• Both trade unions and management represent a collective: of workermembers and of shareholder-owners
• Accompany, represent and negotiate … within procedures since the
just application of unjust rules may be all that is available at the
workplace
• The micro-politics of the workplace -- the impact on others; the impact
on systems and procedures; and the impact on management-staff/union
relationships … fight to win but also fight to be seen to fight
• How natural is justice?
• Labour market impact on grievance and disciplinary outcomes
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CONCLUSIONS: WHERE ARE WE
HEADING?
•
•
•
•
Better regulation which produced Gibbons combines old labour (early and
effective resolution of disputes) with new labour (deregulation disguised as
sensible simplification)
Enforced proceduralisation (Donovan tradition) being replaced by a market in
representational skills and knowledge with lawyers competing with ACAS,
unions, the CAB and other private suppliers to provide somebody at work with
quasi-advocacy training to give the appearance (but rarely the reality) of a
better regulated and fairer system
Blair: ‘the three pillars of our industrial policy are the pursuit of strong
markets, modern companies and the creation of an enterprise economy
And this is to be based on the subjugation of the individual in the stateprotected market place
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