Threat or opportunity? Unions' responses to the ICE Regulations

Although the Information and Consultation of Employees Regulations are intended to ensure workers have a stronger voice, unions appear reluctant to engage with them. We find out why.

The Information and Consultation of Employees (ICE) Regulations have been described by trade and industry secretary Patricia Hewitt as "the most important piece of legislation for years", and by the TUC as presenting significant new opportunities for trade unions to strengthen their influence in both organised and unorganised workforces. Many employers agree. Anecdotal evidence, however, suggests that unions are unenthusiastic about the legislation, seeing it as a threat to existing collective bargaining arrangements rather than a chance to gain a foothold in non-union organisations.

Unison, for example, suggests that employee forums could either compete with long-standing union-employer arrangements or confuse staff if the forums operated independently of current union consultation processes. In the worst case, Unison says, where union membership is low, there is low membership participation, or the employer is actively hostile, unions could be shut out by a different scheme of staff representation. It says there is a definite problem among voluntary organisations, in particular in housing associations. In mid-2004, a London housing association employer took advantage of the convenor leaving the organisation to give notice that it wanted to withdraw from a long-established joint negotiating committee and replace it with a staff council. It justified this step in terms of alleged obligations under the Regulations.

Perhaps as a result of these fears, employers are reporting that some unions are unwilling to cooperate in drawing up ICE agreements. David Yeandle of EEF, the manufacturers' organisation, says that "it is unfortunate that some companies which are genuinely trying to be innovative are being frustrated by union reluctance to take part in company-wide bodies consisting of both union and non-union representatives".

Since the unions have been pressing government for many years to give UK workers the same rights to information and consultation as their mainland-European counterparts, their apparent lack of appetite to engage with the new provisions may seem surprising.

Second rung on the ladder

Sarah Veale of the TUC, however, believes the Regulations offer unions new organising opportunities. She sees the right to information and consultation as the second rung on a three-rung ladder, with the first being the right to individual representation, and the final being the right to recognition. She compares the transitional opportunities offered by consultation with what happened in the finance sector in the past decade, in that while consultation is inferior to recognition, it is likely to result in recognition and increased membership of trade unions in the long run. In the finance sector the first bodies representing employees were staff associations. Although these were generally vilified by trade unions, they introduced employees to the idea of representation, and gradually assumed the characteristics of independent trade unions. Now they are mostly independent trade unions, as defined by the Certification Officer, and many of them have, through a series of mergers, become part of TUC-affiliated unions. For example, the NatWest Staff Association and Unifi, which represented staff at Barclays, merged with BIFU in 1999 to form Unifi, which itself has recently merged with Amicus.

Less theoretically, non-union employee representatives on the employee forums are likely to look to union representatives for guidance, and will appreciate their experience of negotiating with the employer and the back up they can call on in terms of expert advice available from union head office. This will allow the union, in effect, to speak for the whole workforce and to exert a more powerful influence than if it is only representing its own members. And if the union does a good job, people will join it, says Sarah Veale. Unison adds: "I&C representatives who are not in the union are likely to find themselves out of their depth and may want to join the union for support. And experience has shown that contact with union representatives demonstrates the importance of trade unions to non-members."

Getting activists elected and ensuring there is full-time officer support will make calls on union resources at a time when many are feeling the pinch financially, and this may partly explain the reluctance of some unions to get involved in this new swathe of activities. And there are questions as to whether all union representatives will be up to the task of dealing with a broader business agenda.

There is also, Sarah Veale says, a belief among some male manual workers that union representation "is not for the girls", that is, the office staff. Such a belief would make it difficult for a union member on an employee forum to take the interests of the office staff seriously, or indeed to wish to take part in an employee forum representing such workers.

There are other reasons for the lack of enthusiasm. Unions are used to consultation - over redundancies, for example - but only at the end of the process, where it represents failure. The idea of consultation may therefore be tainted in some unions' eyes by an aura of crisis management and the end of the bargaining process.

Signing new agreements

Although there is little evidence of new agreements being signed, all the unions we spoke to said they would be happy to sign such agreements, provided they have proper safeguards and facilities for representatives, and meet at least the minimum standards set out in the Regulations. Unison says its policy is not to allow the Regulations to be used to undermine the union position. But it advises its representatives, when signing a new collective agreement or extending an existing one to consider agreeing to consult non-union members on information and consultation issues. This could pre-empt an effort to set up a parallel structure and may be an opportunity to organise new areas of the organisation.

The TGWU says that it sees the ICE Regulations entirely in the context of the organising agenda. It is expecting soon to sign an agreement it regards as a model with an employer with which it has a good relationship, and will then use the framework elsewhere.

Amicus is telling representatives to take care not to sign pre-existing voluntary agreements that do not meet the standard minimum requirements that the Regulations will enforce from April 2005. It has also refrained from "pushing the boat out" on signing ICE agreements, partly because it was waiting for the final Guidance on the Regulations to be published and partly because recognition is always its top priority. But it is now working on incorporating information and consultation clauses into existing and new agreements.

Working with non-union reps

Employers' understandable desire that there should be a single employee information and consultation forum to represent all the workers in an undertaking, not just those belonging to a trade union, is at the heart of the difficulties.

The TUC says that, given the low level of union density across the UK economy, it had no alternative but to agree specific provisions for non-union members in the tripartite discussions on arrangements to implement the European Directive in the UK. Amicus will, however, organise and put up candidates for elections to ICE forums wherever they take place, and the TGWU will consider any situation where their members are standing for election as an organising opportunity.

Many unions believe these provisions are intended to marginalise them, especially since CBI director-general Digby Jones accused unions last September of becoming increasingly irrelevant and failing to respond to the challenges of the global economy. "The only protection people need in a tight labour market with skills shortages is to be so adaptable, trained and valuable that no employer would dare let them go or treat them badly", he told CBI Scotland's annual dinner. These remarks attracted a great deal of adverse comment from the trade unions at the time, and still rankle with them.

In response there have been anecdotal reports that instructions have come from the TGWU's head office that there must be no cooperation with non-union representatives. The TGWU say this is not so. The union is taking a pragmatic approach. Ideally it would like 100% union representation on information and consultation forums, but in large organisations where not all sections of the workforce are unionised, it will deal with elected non-union representatives on a case-by-case basis.

Amicus says that: "While of course we would be prepared to sit down with any non-union representatives elected to an information and consultation council, traditional bargaining matters like pay and terms and conditions would remain the sole ownership of the bargaining group. However, we see meeting non-union representatives as an opportunity for recruitment and recognition in parts of an organisation where we are not already recognised."

Direct or indirect?

Even worse, from the trade union point of view, than sitting down with non-union members is the provision in the Regulations for negotiated agreements to operate by means of direct forms of information and consultation rather than via representatives.

The TUC points out that the directive defines information and consultation as procedures taking place between employer and employee representatives. This implies that negotiated information and consultation arrangements that do not involve employee representatives may not meet the requirements of the directive. The TUC is counselling unions not to agree consultation arrangements that rely solely on direct methods.

Triggering the Regulations

Although the unions are aware of the trigger, they are saying firmly that they are only interested in it as a relatively short step to recognition and collective bargaining. Amicus says it would trigger the use of the Regulations once it had established that there was no short- to medium-term prospect of gaining recognition, and where this demonstrates an opportunity to organise and recruit members. It is training organisers to identify such opportunities. Where it has no recognition but some members, the TGWU will consider using the 10% trigger to get an ICE agreement as a staging post towards full recognition. The precise tactics to be used in any particular situation will be discussed with activists and local officers. Unison says that where organisations refuse to deal with it, it will use the Regulations locally to try to get recognition. But it would always make a distinction between information and consultation and collective bargaining.

It does not seem that unions are gearing up to use the trigger as an organising opportunity in any workforce where they have members. The trigger could be used in this way because although 10% of the workforce need to sign up to a request to start negotiations for an information and consultation agreement, a much smaller membership, say 3%, could be sufficient to run a campaign to get 10% of the workforce to sign a petition, especially since the request for information and consultation negotiations can be done anonymously to the Central Arbitration Committee (CAC), which will check the petition against employer staff lists. This could be seen as a wasted opportunity.

Content of ICE agreements

The TUC believes that the Regulations should have included the right for time off for information and consultation representatives to undergo appropriate training, in line with existing legislation on redundancies and transfers, and access to the necessary facilities, material resources and professional assistance to help ensure their effectiveness. It is likely that unions will be pressing for these provisions in negotiations for information and consultation agreements or amendments to existing agreements. While looking to follow best practice, Amicus will try to ensure that any agreements incorporate the minimum standards set out in the Regulations and that Amicus is involved in negotiating such agreements. The TGWU is currently auditing all its agreements to ensure that they meet the minimum standards of the Regulations. The TGWU will be looking for ICE agreements to cover the subject areas of pensions and training. The Pensions Act will require employers to consult staff before making significant changes to pension schemes, so the TGWU has said it is currently telling employers that they might as well start informing and consulting their staff on pensions provision now.

Confidentiality

Unions are concerned that employers will try to withhold sensitive information from their representatives on the grounds of confidentiality. The Regulations say that the employer is not required to disclose any information where its nature is such that, according to objective criteria, the disclosure of the information would seriously harm the functioning of, or would be prejudicial to, the undertaking. The CAC can declare whether or not the disclosure of the information would not be seriously harmful or prejudicial to the undertaking.

The TUC is concerned that "stock exchange rules" are frequently (and incorrectly) cited by management as a reason for not informing employees and recognised unions ahead of public announcements of, for example, planned restructuring and job losses. It says that "neither the UK listing rules, nor the City code on takeovers and mergers, nor similar US rules prevent organisations from sharing price-sensitive information with employee/union representatives in confidence, before it is publicly announced". This is explained at length in annex 2 of the DTI Guidance to the Regulations. As Acas points out, the crucial point to note is that the listing rules distinguish between employees and employee representatives. And while employees can only be informed simultaneously with the market, which will at least pre-empt them hearing about it first from the media, employee representatives can be given price-sensitive information in confidence in advance of the market.

More generally, the TUC is warning unions and union representatives who are party to information and consultation agreements not to agree to blanket confidentiality clauses that give employers more scope to restrict or withhold information than the Regulations themselves.

Improving business performance?

Information and consultation helps employees understand how the business works and the problems it faces and provides employers with a means of accessing employees' knowledge and ideas. The preamble to the 2002 ICE Directive cites the need to increase trust, make employees more aware of adaptation needs, facilitate employee training, maintain security of employment and promote employee involvement to increase the competitiveness of the organisation. "It is therefore disappointing," says David Yeandle, "that even where unions are positive about the Regulations it is only as a stepping stone to recognition, not as an opportunity to involve employees in improving business performance."