Second thoughts on labour relations discipline
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by John Darker, AMBIM
MANAGEMENT conferences today almost invariably include iabaur relations topics, and when other subjects are discussed the implicit importance of labour relations is usually close to the surface of the debate.
The constraints upon management in terms of their power to discipline employees are more exacting today than ever before. A knowledge of the law is a vital element in the manager's stock of knowledge ; however expert he is at traffic management, office organisation, customer relations, fleet maintenance, cost control and forward budgeting, if he is unskilled at the arts of man—and woman —management he will not make a senior executive. Indeed, at all levels of management, skill in handling people is called for as never before.
The problem would be less serious if the legal framework was static—if the law governing labour relations matters was decided on a permanent: basis.
Onerous legislation
In fact, the monumental Industrial Relations Act of 1971 has been largely swept away by fresh legislation, and a lot more onerous legislation, such as the Employment Protection Bill is likely soon to be on the Statute Book.
But managers face a great and unnecessary burden in learning new legal requirements, codes of conduct, etc, in labour relations matters if with every change of government the law is substantially altered. What is desperately needed is some finality—at least stability for 10 years—so that both sides in industry can get a feeling for the new ground rules and learn to apply them with restraint and common sense.
It is not many months since the dissolution of the National
Industrial Relations Court, unkindly known as ' NIRK." Sir John Donaldson, its President, was frequently in the news as the man who was enabled by
the law—whatever his personal view may have been—to hand out massive fines to trade unions guilty of contempt of Court.
The consequences are well
known ; the majority of employers tried hard to avoid getting entangled in labour relations legislation and virtually all trade unionists became passionate opponents of the Industrial Relations Act and its wellmeaning sponsors.
In a recent speech, not widely reported in the media but extensively reproduced in Industrial Relations Review and Report Sir John Donaldson affirms that the demise of the NIRC should not be seen as the end of the role of courts in Industrial Relations, He believes " passionately that the courts have an enormous potential as a social lubricant and that this has not yet begun to be realised."
In his conduct of the NIRC Sir John was notably informal, wearing no judge's wig and gown. The pomp and mystique of an ordinary law court was absent ; but for the fact that it was clearly a national institution whose decisions could affect a great many people, the NIRC was no more awesome than a traffic court presided over by a Licensing Authority or—since NIRC had three members—Traffic Commissioners.
Sir John does not anticipate any re-enactment of the 1971 Act but he looks for a radically new approach, "an evolutionary process starting with a change in the work of the Industrial Tribunals. Their jurisdiction will expand taking in new problems in the field of equal pay, sex discrimination and health, safety and welfare in the workplace. And I hope that they will also take over the whole jurisdiction to deal with complaints by union members of breaches of the unions' rules—a jurisdiction at present shared between the County Court and the High Court" Sir John sees Industrial Tribunals—which are already familiar to many road transport employers and employees—developing into Industrial County Courts or local Labour Courts. "As such they would be part of the regular system of courts, but they would retain their expert and bipartisan character—employer, trade unionist and independent chairman—and their simple and effective procedures. Last but by no means least, I should hope to see a strengthening of their links with the Conciliation and Arbitration Service."
The NIRC failed largely because it was ostracised by the trade union movement; no prominent trade union national official would serve as a member of the court. Trade union hostility killed off the Commission on Industrial Relations though its top man, Sir Len Neal, had once been a full-time trade union official.
Rethinking
Sir John says there are a mass of industrial disputes, large and small, which do not fit into the categories mentioned. The resolution of these disputes without costly strikes and confrontations is the great challenge of our time. Radical rethinking is called for.
For over a century, he argues, Parliament has tried to preserve a balance of power between unions and management. Different governments have had different ideas as to where the proper balance lay, but all accepted this the right approach. Given two evenly matched adversaries a fair compromise could be reached, but often at huge cost. In this setup the role of the courts is only to act as linesman. "If the players go outside the permitted field of play, the courts have to push them back again."
Sir John continues: "Unfortunately the temptation to break the rules is, much greater for unions than for employers. It is
they who have to make the running in most disputes. The employer's strongest weapon is just to do nothing. In the nature of things the courts are therefore more likely to Clash with the unions than with the employers. This is unfortunate, because it gives the courts a false reputation for being antiunion.
"The 1971 Act maintained the same system, but laid down unusually elaborate rules. And once again the court had to enforce them. Surely there must be a better system."
Sir John suggests that the 1971 Act should have adopted a different approach. It would have been better had it been called the Trades Unions, Workers and Employers Rights Act concentrating on the factors giving rise to industrial disputes and not on the industrial action which results. "How different the last three years might have been," Sir John declares. He should know; he was in the middle of the greatest industrial relations battle of our times.
Strike reasons
Most industrial disputes fall into well defined categories, The Department of Employment Gazette analyses the reasons attributed to strikes in every issue. Sir John argues that few union leaders in dispute with an employer start off by saying "My members want . . . or else," They give reasons and the employers give reasons for resisting the claim. It is only later that the real reasons get forgotten and industrial warfare breaks Out.
What is Sir John's solution? He thinks the Conciliation and Arbitration Service should analyse the reasons put forward by both sides in current disputes. "Could not this lead to agreed guidelines not particularly in the field of pay, but in all aspects of industrial relations? With such guidelines, the courts could be given their traditional role of
investigating the merits of disputes and helping the party who is right. And this would be the trade unions at least as often as the employers. But the advantages would not stop there."
Sir John continued : "How often do we hear the comment: 'I really do not know which side to believe; it is impossible to find out who is right'? The public suffers from every industrial dispute. Ought they not not know who is right? Adopting this new approach, they would know, for the court which investigated the dispute would tell them. Those who suffered injustice would then be supported by the courts. Better still they would be supported by public opinion which is the ultimate foundation of all law."
Sir John recognised not only that an amicable settlement was of vital importance but that speed was essential in resolving the dispute. Hence the court's procedure must be designed to reduce and not increase the hostility between the parties, and the public must be considered one of those parties.
The 1971 Act "only allowed the court to intervene if someone who was immediately affected chose to complain." But often "the public which is indirectly affected has to put up with the consequences of the dispute," therefore "consideration should be given to allowing those who are indirectly affected by the industrial action to apply to the court."
Investigating branch
One solution would be for the court to have its own investigating branch or it could use the services of the Conciliation and Arbitration Service. "When the court is involved, the conciliators can stress the rights of the parties and point out that the court is likely to lean heavily on anyone who is behaving unlawfully or even unreasonably. Outside court the conciliators have none of the authority which this gives them.
They are the servants of the parties and the most that they can do is to point out the industrial consequences of any particular course of action. In the one case the negotiations for a settlement turn on right in the other on might."
Sir John Donaldson's views are hardly likely to be given much attention by a Government that came to power, in part, because of the 1971 Industrial Relations Act. But he has learned from experience. Transport managers have more reasons than most people to want to see a workable formula worked out for the speedy settlement of disputes.