Labour Law and the Erosion of
Worker Collectivism
John Kelly, Birkbeck
The Changing Face of Collective
Labour Law Seminar
11 Oct 2013
1
Arguing about labour law
• Labour law literature comprises debate
amongst academics as well as practitioners
and legislators.
• But how do you engage Conservative neoliberal ministers in discussion about IR
legislation and worker collectivism?
• And how to engage with New Labour?
2
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:
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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.
3
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 interunion conflict (1993).
• Little subsequent evidence for these claims.
4
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.
5
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.
6
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.
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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.
8
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”?
9
Conservatives and labour lawyers
• There is scope for reasoned debate with
politicians who:
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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?
10
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)
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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).
12
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?
13