1. seifert/ier/071 FAIRNESS NOT FAVOURS AT WORK? Institute of Employment Rights Seminar June 2007, London Professor Roger Seifert, Keele University

2. seifert/ier/072 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

3. seifert/ier/073 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’

4. seifert/ier/074 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

5. seifert/ier/075 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?

6. seifert/ier/076 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.

7. seifert/ier/077 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

8. seifert/ier/078 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

9. seifert/ier/079 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

10. seifert/ier/0710 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

11. seifert/ier/0711 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 worker- members 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

12. seifert/ier/0712 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 state- protected market place