16 October 2013

By Roger Jeary

On Friday 11th October, a glittering array of lawyers and academics representing the best of UK employment law society gathered to celebrate the work of Bob Simpson in a symposium which addressed the changing face of collective labour law.

Download the conference papers for free by clicking here

Since I am neither an academic nor lawyer it would be foolish for me to attempt to summarise the ten academic papers which were presented on the day. However, outlines of the presentations accompany this paper and a fuller report from the main organisers of the day – Tonia Novitz, Alan Bogg and Ruth Dukes – is likely to appear in a future edition of the Industrial Law Journal. Instead, as a regular blogger for the IER (a co-supporter of the event which was sponsored by the Modern Law Review) I offer some thoughts.

Professor Paul Davies

It was clear from the start that Bob's work has provided a backbone to academic research in the field of industrial relations and labour law and this was reflected upon by Paul Davies from Oxford University and Roy Lewis QC, a fellow undergraduate, from Old Square Chambers. Bob's focus was on the National Minimum Wage and collective labour law (the title of the symposium was taken from Bob's paper in 2001). The fact that a whole day was now being spent discussing collective labour law in the current climate was in itself something of a coup.

Roy Lewis QC

Bob of course is well known to the IER for his support and contributions and I continue to marvel at his recollection ability whilst ruminating on the Publications Sub Committee at the latest piece of work about to be published. This was similarly recalled by Paul Davies who said that Bob's contributions to the Industrial Law Journal have exceeded 30 and he is one of the most read authors in the publication, illustrating his enormous contribution to labour law over the years.

Professor Keith Ewing

As the symposium progressed to the presentation of papers, it was Professor Keith Ewing who kicked off with a paper on where trade union recognition and collective bargaining is now heading. His reflections on the failure of the statutory recognition procedure was to some extent countered by some optimism that the potential to move to sectoral bargaining was starting to be discussed, (he reminded us that this was in fact part of the infamous Warwick Agreement in 2004 which never materialised) and spoken about in Labour Conference speeches, albeit with no direct reference to trade unions. Professor John Kelly, from Birkbeck College, enlarged the discussion to look at the erosion of worker collectivism. He posed the genuine question of how do you engage today's politicians in active collectivism and industrial relations? Conservative reactionaries see vulnerable workers as "good, acceptable" workers willing to be flexible and accept low wages. Even now the message from Labour shows a preference for individual legal rights and limited tri-partitism.

Professor John Kelly

The third contribution under the heading of collective bargaining lamented the missed opportunity of the Information and Consultation Regulations. Whilst recognising the weaknesses in the Regulations, Pascale Lorber of Leicester University posed the thought that they could have provided a wider voice for workers and unions. However they lacked a strong legal framework, were limited by triggers and thresholds and enforcement was complex. Even Bob Simpson had argued that the Regulations were worth rescuing to avoid a collective voice remaining 'in a state of flux'. Notwithstanding this, she felt the chances of a resurrection of this tool unlikely, particularly given the period of austerity currently being experienced and the diminution of social dialogue here and across the EU.

Professor Alan Bogg

The importance of collectivism was clearly expounded upon in the final contribution before lunch by Professor Alan Bogg from Oxford University. He argued that individual wellbeing benefits from collectivism despite labour law existing not to promote the collective but to protect the rights of individuals within the collective. This was illustrated by the fact that collectivism can attach to remedies for individual rights claims such as the individual right not to be discriminated against for being a member of a trade union member, which is a collective.

Dr Ruth Dukes

During the afternoon session, the discussion lamented the absence of any significant movement in labour law but held up the hope of better days ahead. Dr Ruth Dukes of the University of Glasgow addressed the challenge posed to labour law scholars by the turn to neoliberalism. Over the past 20 years or so, governments of the centre left as well as the centre right have been increasingly willing to accept the neoliberal classification of labour rights and labour standards as barriers to economic growth. If scholars are to avoid the charge of being irrelevant or anachronistic, how can they most effectively frame arguments in favour of labour standards and collective bargaining?

In an interesting discourse, David Mangan from Leicester University presented his paper No Longer; Not Yet: The Promise of Labour Law. He suggested that the demise in labour law had been due in part to the perceived (albeit inaccurate, in my view) undue influence of trade unions by way of industrial action. Motivation for the reforms is based on allegations of low productivity and economic redress – leading to tribunal reforms, and the ghastly fees and costs systems, which are a powerful disincentive even according to Lord Underhill. The reliance at present upon the SME community as a basis for forming employment legislation is, he claimed, a nonsense. Many SMEs when questioned do not know what employment laws are, yet regularly describe them as intolerable. He correctly pointed out that so little of labour law is developed on an evidence base, but rather through dogma, and concluded by arguing that the promise of delivering labour law in the future rests upon claimants' lawyers and academics. (He subsequently accepted an addition from my trade union colleague in the audience that trade unions also had a role in delivering the promise of labour laws in the future).

Professor Tonia Novitz

Looking at the impact of austerity on collective labour law was the penultimate subject of the day, and in this session Professor Tonia Novitz and Professor Charlotte Villiers, both from Bristol University, presented a European perspective and a discussion of the impact on trade unionism. The European dimension focussed on the worrying decline in the social model of Europe and posed the question of the future of social dialogue in some parts of Europe. Those states that had been subject to austerity bail outs have experienced changing legislation without consultation and the dismantling of consultative institutions. I particularly liked the analysis that the direction was one of: if you cannot devalue the currency, devalue labour. It is important to understand the non-legal effects that legislation often has and that laws which do damage to the social fabric cannot be easily fixed through subsequent legislation.

Professor Charlotte Villiers

In a passionate address on trade unionism and her continued faith in its ability to redress the wrongs that society has wrought upon it, Charlotte Villiers reminded us all of the need to humanise the debate and consider those directly affected by austerity measures. She pointed to the apathy of the public towards trade unions and the resultant problems with trade union density as indicators of what need to be addressed. She suggested that the use of social media and the opening of doors to trade unionism for the unemployed and precarious workers are elements to be considered in what she described as fighting back against restrictive labour laws.

The Symposium concluded rightly with a contribution from Bob Simpson. The event had given him and his colleague Jane Elgar the opportunity to revisit their earlier work on The Impact of the Law on Industrial Disputes and to offer a new perspective on developments over the last two decades. His erudite summation of his previous work demonstrated his insight into collective labour law and his careful and thoughtful analysis of the evidence since then with references to recent case decisions that have created an incoherent body of law on the subject of strike ballots. He criticised the lost opportunity of the past Labour Government to rectify the inequities of the laws on balloting, and pointed to Lord Wedderburn's conclusion that the one change it had implemented (that of removing the requirement for unions to provide a list of names of those taking action) had probably made it more difficult for unions to comply.

Whilst the thanks rang round the hall to all those concerned with organising this excellent tribute to Bob Simpson, I contemplated the thought that what if the Labour opposition or its advisors took the time to read some of the papers discussed and developed their future labour law ideas based on the evidence collated – then I woke up.