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Workplace Representation

There is no common structure for employee representation in the UK and in many workplaces it does not exist. Unions are the most common way that employees are represented and they can now legally compel the employer to deal with them, but only if they have sufficient support. Most non-union workplaces have no employee representation, and the regulations implementing the EU directive on information and consultation have not changed this.

There is no formal legal mechanism providing for on-going workplace representation in the UK. In contrast to some EU countries there is no structure of works councils elected by all employees, and there is also no legislation or system of legally binding collective agreements which give wide ranging powers to local union organisations to represent all employees.

This means that the structure and influence of employee workplace representation is very varied. The position has not been changed by the legislation, implementing the EU information and consultation directive, which came into effect for organisations with more than 50 employees in April 2008 (larger organisations were affected earlier), as it also does not set out a structure for employee representation (see below).

A major official survey of workplace employment relations carried out in 2011 and 2012 (WERS 2011), looking at all workplaces with five or more employees identified four potentially overlapping forms of employee representation in the UK. These were: a “recognised union” – a union with which the employed had agreed to negotiate – an on-site representative of a non-recognised union, a joint consultative committee – a committee made up of managers and employees concerned with consultation rather than negotiation – and stand alone non-union representation.

Early results from the survey found that just under two-thirds (64%) of all employees were in workplaces (35% of the total) with any of these structures for employee representation, although some were in workplaces with more than one. Just over half (52%) of employees were in workplaces (23% of the total) with some union members present, and something under half (46%) of employees were in workplaces (21% of the total) where there was at least one recognised union.1 These figures are in line with the Labour Force Survey figures which cover all employees, not just those in workplaces with five or more employees, and show that in 2012, 44.6% of employees were in workplaces where a union was present.2

The early results of WERS 2011 do not provide details of the number of employees covered by the other two forms of employee representation identified, joint consultative committees and stand-alone non-union representation; they only give the number of workplaces covered. They show that only 7% of workplaces have a joint consultative committee and that in over a quarter of these cases (28%) union representatives were part of the employee delegation on this joint consultative committee. Stand alone non-union representation is also relatively rare, present in only 7% of workplaces. There are, however, a larger number of workplaces, 18% of the total, which are covered by some form of higher level consultative committee, although there is not one at the workplace itself.

These figures make it clear that the most common form of employee representation at the workplace is through the union, with union recognition found in three times as many workplaces (21%) as stand-alone non-union representation (7%).

The key to effective trade union representation is union recognition by the employer. This means that the employer has agreed to consult or negotiate with the union or unions over issues affecting the workforce. (This normally means that the employer will negotiate with the union on pay and conditions but there are some cases where unions are only recognised by the employer for individual grievance and disciplinary cases.) In addition, if the union is recognised it has certain rights (see below).

Legislation passed in 1999 provides for the first time a legal mechanism to compel employers to recognise unions. Unions must prove to an independent body, the Central Arbitration Committee (CAC) that a majority of employees in a “bargaining unit”, which can be a workplace, several workplaces, or part of a workplace, want a union to represent them. They can do this either by showing that more than half the employees are union members, or by winning the support for recognition of a majority of employees in a ballot, although this must also be equivalent to at least 40% of all employees in the bargaining unit. The legislation only applies to employers with 21 or more employees.

In practice, once the legal process is under way, most cases involve a ballot of employees. However, in the majority of cases where unions sought recognition and had substantial membership they were able to achieve it on a voluntary basis, as the employer was aware that the legal avenue is open to the union if recognition is refused. Figures compiled for the TUC, the British union confederation, show that from November 2000, when the legislation began to bite, to October 2005 the unions won recognition in more than 1,110 employers. This is many times the number of cases where recognition was granted as a result of a decision by the CAC.3 More recent research suggests unions are making less use of the statutory recognition procedure, with a decline in the number of application from an average of 89 applications a year in the first five years, to 54 in the five years to 2010-11.4

Where there are no unions, there is no general right or requirement to have employee representatives, although there are EU directives which require employee representatives to be informed or consulted, as on redundancies, business transfers, health and safety and in some cases working time. In workplaces without unions, UK legislation implements these directives by requiring the employer either to inform and consult existing employee representatives, if these are present, or to inform and consult representatives specially elected for that purpose. It is important to emphasise that in none of these cases are there any precise rules in the legislation as to how this representation should be structured.

In practice, as already noted, such permanent representative bodies without union involvement are relatively rare, with the WERS 2011 survey showing that 7% of workplaces have joint consultative committees and 7% have stand-alone non-union representation.

This is despite the fact that regulations implementing the EU information and consultation directive came into effect in April 2005, and now give employees in undertakings with more than 50 employees the right to be informed and consulted on developments in the business in particular in relation to employment.

However, the regulations do not require employers to establish a structure for information and consultation if one does not exist. The process must be either initiated by the employer or by a request of 10% of the workforce. Once this has happened, the employer and employee representatives are required to start negotiations on an agreement on information and consultation, with fallback arrangements on setting up a committee if no agreement is reached. But if neither the employer nor 10% of the workforce ask for an information and consultation mechanism to be set up, then there is no need for further action.

The evidence so far is that the regulations have not produced major changes in quantitative terms in employee representation at the workplace. The WERS 2011 survey does not show an increase in either joint consultative committees or stand-alone non-union representation, although the proportion of workplaces in larger private sector employees (those with 250 or more employees) more than doubled, from 6% to 13% between 2004 and 2011.

However, a survey on the impact of the regulations, found that the “limited evidence available … indicated some growth in the period immediately before and after the initial commencement of the [information and consultation] regulations. However, evidence … suggests that this may not have been sustained”.5

Where unions are recognised there is some evidence that they have used the regulations to improve their access to information and their consultation rights.

A survey of largely union-organised workplaces by the Labour Research Department in April 2006, found that, out of 150 responses, 49 (33%) had reviewed, amended or drawn up new information and consultation arrangements in the light of the regulations, although only 22 had set up new formal arrangements. Of these 15 had been initiated by the employer and seven by the union. In some cases the result had been the creation of new staff councils, involving both union and non-union members although generally the unions did not feel their position had been weakened.6

Where unions are not recognised, it is likely that new structures will only be set up where the employer initiates the process, as employees will find it difficult to reach the 10% threshold to ask for an agreement, or, perhaps more likely, will not know that they have this right, or wish to exercise it.

Numbers and structure

There are no legal rules or guidance on the number of union representatives, who are sometimes known as shop stewards. The information and consultation regulations suggest that, as a fallback where an agreement has not been reached, there should be one representative for every 50 employees or part thereof on an information and consultation committee. As the threshold for this right is 50, every committee set up on this basis will have at least two members.

In larger workplaces union representatives/shop stewards will probably come together as a shop stewards' committee (SSC) and elect a spokesperson, often known as a convenor or senior shop steward. Where there is more than one union at the workplace (see below) stewards from different unions will often come together to form a joint committee. This is sometimes known as a joint shop stewards' committee (JSSC) but also has many other names such as office or works committee. The structures are informal and can vary greatly from workplace to workplace.

There may also be a joint committee with the employer, which, as already noted, is often called a joint consultative committee. This can exist both in workplaces where unions are recognised and those where they are not. However, where there is such a body, there are no rules or guidance as to its size.

Tasks and rights

In organisations where unions are recognised, local trade union representatives, whether they are called shop stewards or have some other name, combine a variety of roles.

A key task for trade union representatives in many workplaces in the private sector is to negotiate on pay and conditions, as in the private sector the most important level of collective bargaining, where it continues to exist, is that of the company or individual workplace (see section on collective bargaining). Local union representatives are less likely to be involved in bargaining in the public sector. In workplaces where unions are recognised, union representatives have the right to information from their employer which is needed for collective bargaining, typically details of pay rates and pay structures.

The importance of questions of pay and conditions for the work of union representatives at the workplace is indicated by the WERS 2011 survey. It found that 62% of union representatives had spent time on rates of pay in the previous 12 months.

However, pay was not at the top of the list in terms of the proportion of union representatives, who had spent time on it. This was representing individual union members in dealing with the employer. The shop steward or union representative will normally be the first port of call for a union member facing problems at work. They are usually responsible for pursuing grievances and complaints on behalf of members of the union. They will also act as an advocate for members who are facing disciplinary action by the employer, although often, if they are unsuccessful, the employer’s procedures will allow for the involvement of a full-time officer of the union. The WERS 2011 survey found that more than three-quarters (77%) of union representatives had spent time on this issue in the previous 12 months. The next most common item on the list is health and safety at 66%.

The UNISON rulebook defines the duties of shop stewards as being to “establish and maintain union organisation in their work group including the convening of workplace meetings”. And representing the union to the members is another key task. The shop steward is often responsible for recruiting new members and is a key figure in ensuring that the members know about the union's latest policies and campaigns. He or she may also collect union subscriptions, although this is now fairly rare as subscriptions are in most cases deducted by the employer or paid through the bank.

The obligations of union representatives end with union members and they have no responsibility for other employees.

In addition, recognised unions also have rights to be consulted on redundancies and the transfer of undertakings. Union safety representatives have the right to be consulted on health and safety issues and since 2002, there has been the possibility of having a new union representative at the workplace – a union learning rep – with a right to time off to establish the workplace’s learning and training needs and to help to meet them.

In workplaces where unions are not recognised, there will normally be no employee representation. However, where this does exist, the tasks and rights of the representatives will be as decided by the employer, although non-union representatives do have rights to be consulted on redundancies and transfers, where they occur; they may have more general information and consultation rights, if an agreement has been reached with the employer on this (see above); and the employer can also choose to consult with non-union safety representatives on health and safety issues.

In practice, the WERS 2011 survey found that rates of pay was the issue on which the largest number of non-union representatives were involved – 60% said they had spent time on this in the previous year. This was followed by training (59%) and health and safety (57%). Non-union representatives were much less likely to have been involved in representing individuals than union representatives. Only 43% of non-union representatives had spent time on this in the previous 12 months, compared with 77% of union representatives.

Election and term of office

The methods for electing union representatives, who, of course, must be union members, vary from union to union but normally involve a show of hands rather than a secret ballot. Shop stewards or union representatives are normally chosen for a particular office or workshop, and where there is shift working there may be different shop stewards for different shifts. They are usually elected by the members in the area in which they work rather than by the workforce as a whole. Elections typically take place every year. In practice individuals may hold office for long periods.

Legally shop stewards are officials of the union and in some unions the choice of the membership at the workplace has to be endorsed by a higher level in the union.

The method for choosing non-union representatives will normally be decided by the employer. But where they are being chosen for the purposes of information and consultation, under the information and consultation regulations implementing the EU directive, the fallback arrangements state that they should be elected by a ballot of all employees, with an independent ballot supervisor being appointed to ensure that the ballot is fair.

Protection against dismissal

Dismissal and other forms of victimisation for trade union membership or activity are unlawful. But union representatives have no specific protection against dismissal although a code of practice from the government's conciliation and arbitration body ACAS recommends that employers should take particular care in taking disciplinary action against trade union representatives.

Non-union representatives are also protected against dismissal and victimisation, but only in as far as they are acting in relation to specific statutory rights – such as in cases of redundancy or transfer or under the regulations on information and consultation.

Time off and other resources

Union representatives where unions are recognised have a legal right to “reasonable” paid time off to carry out their duties as representatives and to receive appropriate training. The law does not specify what is considered “reasonable” and the employer may refuse time off either if it is considered too frequent or too inconvenient at the time of the particular request. In some large workplaces the senior union figure may be released from other duties for all or part of their working hours but this has become less frequent in recent years.

In workplaces with no union recognition there is no legal right to time off either for duties or for training, except in relation to specific statutory rights – such as in cases of redundancy or transfer or under the regulations on information and consultation.

In practice figures from the WERS 2011 survey found that on average 17% of senior union representatives were fully freed from their normally duties and that on average union representatives spent 13 hours a week on their role, although around half (51%) spent less than five hours a week. Non-union representatives spent an average of three hours a week on their duties.

The right of access to other facilities, both for union and non-union representatives, is limited to specific circumstances – dealing with health and safety, redundancy and business transfers. Union representatives have no general right to facilities to enable them to do their work and depend on reaching agreement with the employer for any facilities they have. However, an ACAS guide suggests that “employers should, where practical, make available to union representatives the facilities necessary for them to perform their duties efficiently and to communicate effectively with their members, other representatives and full time officers.” Where resources permit the code states that these should include: accommodation for meetings, access to a telephone and other communication media used or permitted in the workplace such as e-mail, intranet and internet, the use of notice boards, the use of dedicated office space (where this is justified by the volume of the work), confidential space where an employee can meet their representative to discuss confidential matters, access to members who work at a different location, and access to e-learning tools.7

Representation at group level

Just as there is no statutory structure for employee representation at workplace level so there is no structure at group level. Meetings of employee representatives at group level are on a voluntary basis at the initiative either of the union or the employer. In some cases the union may bring its representatives in the company together and sometimes the company itself may wish to do so.

L. Fulton (2013) Worker representation in Europe. Labour Research Department and ETUI. Produced with the assistance of the SEEurope Network, online publication available at http://www.worker-participation.eu/National-Industrial-Relations.