Consultation Directive will fail to deliver

The EC Information and Consultation Directive is unlikely to promote dialogue and equity in the workplace unless the government is prepared to make meaningful changes to the framework of UK employment law.

According to the Institute of Employment Rights, the Directive will fail to deliver either the Government's promise of fairness at work or the TUC's vision of German-style social partnership and is in danger of ending up as a meaningless exercise.

In a report published to inform responses to the Government's consultation, the Institute warns that the Directive itself is deficient in a number of respects, not least because of the British government's campaign to dilute its contents.

"If things stay as they are, this Directive will be yet another example of a puffed-up right which raises expectations but delivers little," said Carolyn Jones, Director of the Institute.

"In the wake of the Corus disaster and others, workers look to the Government to provide rights that will protect them against arbitrary management decisions. They want to be part of the workplace process that determines their future. In its current form, this Directive will do little to prevent bad employers destroying the lives of many in their search for profits."

Two major obstacles to effective worker participation are the absence of collective bargaining at sectoral level and the exclusion of small businesses from the statutory recognition procedure.

"One of the key supports of the German social model is the institution of collective bargaining at sectoral level, where minimum standards are set,” says the report’s author, Dr Glynis Truter.

“One of the benefits of sectoral bargaining is increased collective bargaining coverage: in Germany the coverage rate is around 70 per cent, which rises to around 85 per cent when account is taken of companies basing the terms and conditions of their workers on collectively-agreed provisions.

“In the UK, on the other hand, decentralisation of collective bargaining over the past 20 years has seen the numbers of workers covered by a collective agreement drop from over 70 per cent to less than 30 per cent."

The minimalist approach that the government appears to have adopted to the implementation of the Directive and its reluctance to introduce anything more than limited changes to the Employment Relations Act, suggests that the promise of fairness and partnership at work has been abandoned, Dr Truter added.

To remedy the defects in the existing employment law framework and provide a clearly defined and coherent set of participation rights, the report suggests a 13-point agenda for change:

1. the right to consultation on economic matters and the right of joint decision-making on all other matters affecting the employment relationship that are not covered by a collective agreement;
2. the right to be provided with information on all of the matters in respect of which consultation and joint decision-making are required;
3. a requirement that the parties determine a strategy to alleviate the economic effects of structural changes;
4. in respect of the right to consultation, an obligation to consult prior to the taking of decisions;
5. in workplaces with a recognised trade union, an obligation to provide information to, and consult and engage in joint decision-making with, representatives of that trade union;
6. in workplaces without a recognised trade union, a requirement that a participation forum be established by the employer within a specified period in accordance with a prescribed procedure;
7. an obligation to convene for discussion at least once a month;
8. a requirement that resources for the participation forum be provided by the employer or that a fund sponsored by all employers be established for this purpose;
9. a provision which allows the nullification of any decisions taken in breach of the employer's duties and
10. an obligation to establish a participation forum in all workplaces in both the private and public sectors, irrespective of the size of the organisation
11. a right to be represented on company boards;
12. the removal of the threshold for the acquisition of recognition; and
13. the reconstruction of a sectoral bargaining framework which allows a degree of co-ordination between sectoral and enterprise levels and includes a mechanism for the extension of collective agreements concluded at sectoral level to non-unionised workplaces.