Winner of the SLS Peter Birks Prize for Outstanding Legal Scholarship 2010. The long ascendancy of pluralism and 'collective laissez-faire' as a guiding ideology of British labour law was emphatically shattered by the New Right ideology of Thatcher and Major. When New Labour was finally returned to power in 1997, it did not, however, attempt to resurrect the pre-Thatcher preference for pluralist non-intervention in collective industrial relations. Instead, it purported to follow a 'Third Way'. A centrepiece of this new approach was the statutory recognition provision, introduced in Schedule A1 TULRCA 1992. By breaking with the tradition of voluntarism in respect of recognition of trade unions, New Labour sought to provide a model of collective labour law which combined legal support with control through juridification. A closer study of both the history of approaches to recognition and the current provisions opens up fundamental questions as to the nature of this new model and the ones it aimed to replace. This book uses political philosophy to elucidate the character of those historical approaches and the nature of the 'Third Way' itself in relation to statutory union recognition.
In particular, it traces the progressive eclipse of civic republican values in labour law, in preference for a liberal political philosophy. The book articulates and defends a civic republican philosophy in terms of freedom as non-domination, the intrinsic value of democratic participation through deliberative democracy, and community. This can be contrasted with the rights-based individualism and State neutrality characteristic of the liberal approach. Despite the promise of civic community in the 'Third Way' rhetoric, this book demonstrates that the reality of New Labour's experiment in union recognition was an emphatic reassertion of liberalism in the sphere of workers' collective rights. This is the first monograph to offer a sustained critical analysis of legal approaches to trade union recognition. It will be of particular interest to labour lawyers, but also a wider audience of scholars in political philosophy and industrial relations.
Alan Bogg is a Fellow and Tutor in Law of Hertford College, Oxford.
Part 1: Historical Perspectives on Union Recognition and the Law 1 Reappraising Kahn-Freund: The Coherence of Collective Laissez-Faire I INTRODUCTION II CLF AND ITS CRITICS III CLF AND THE 'PLURALISTIC CONSTITUTION' A Introduction B Collective Bargaining as Industrial Democracy: The Influence of American Political Pluralism C The State and Collective Bargaining: The Influence of English Political Pluralism (i) Sovereignty and Pluralism (ii) The Real Personality of Groups and Pluralism IV CLF DEFENDED: THREE CRITIQUES OF CLF A The Abstentionist Critique B The Neutrality Critique C The Coherence Critique (i) The Legal Duty to Bargain I: The Pragmatic Objection to Direct Auxiliary Support (ii) The Legal Duty to Bargain II: The Normative Argument against Direct Auxiliary Support V CONCLUSION 2 The Rise of the Legal Duty to Bargain: The Resilience of Collective Laissez-Faire I INTRODUCTION II TWO CONCEPTIONS OF INDUSTRIAL RELATIONS PLURALISM: PLURALIST AND CIVIC VOLUNTARISM, AND THE DONOVAN COMMISSION REPORT A Flanders, Clegg and the 'Oxford School' of Industrial Relations B Flanders' Evidence to the Donovan Commission: The Proposal for Direct Auxiliary Support C Pluralist and Civic Voluntarism within the Donovan Commission (i) Criteria of Union Representativity: The Determination of Bargaining Agents (ii) The Regulation of the Collective Bargaining Process III THREE EXPERIMENTS IN DIRECT AUXILIARY INTERVENTION: THE ECLIPSE OF CLF? A The Legal Duty to Bargain I: The Commission on Industrial Relations 1969-1971 (i) Bargaining Units and Bargaining Agents: The Eclipse of Group Autonomy? (ii) The Legal Duty to Bargain: The Resilience of Group Autonomy? B The Legal Duty to Bargain II: The Industrial Relations Act 1971 and CIR II (i) Bargaining Units and Bargaining Agents: State Neutrality or State Partiality? (a) Legislative Ideology and Governmental Neutrality (b) CIR II and State Partiality (ii) The Legal Duty to Bargain: The Resilience of Group Autonomy? C The Legal Duty to Bargain III: ACAS and the 'Social Contract' Era (i) Bargaining Units and Bargaining Agents: The Eclipse of Group Autonomy? (a) ACAS and the Civic Approach to Allocating Bargaining Rights (b) The Courts and the Liberal Approach to Allocating Bargaining Rights (ii) The Legal Duty to Bargain: The Resilience of Group Autonomy? IV CONCLUSION Part 2: Two Conceptions of Third Way Labout Law: Liberals and Civic Republicans 3 The Third Way and Liberal Labour Law I INTRODUCTION II NEW LABOUR'S APPROACH TO COLLECTIVE LABOUR LAW: NEO-LIBERAL OR LIBERAL? A Varieties of Liberalism B The Role of Incompletely Theorised Agreements (i) Incompletely Theorised Agreements I: The Case of the Closed Shop (ii) Incompletely Theorised Agreements II: The Case of Internal Union Democracy C The Impossibility of Incompletely Theorised Agreement: The Case of Trade Union Recognition III NEW LABOUR'S LIBERALISM AND THE CIVIC REPUBLICAN CRITIQUE IV LIBERALISM, COMMUNITY AND LABOUR LAW: THREE LIBERAL POSITIONS A Liberal Neutrality: The State, Trade Unions and the Cultural Marketplace (i) Evaluating the Cultural Marketplace I: The Problem of Deliberative Distortion (ii) Evaluating the Cultural Marketplace II: Choosing the Time and Place of Organisational Activity B Beyond Liberal Neutrality: The State, Trade Unions and Liberal Justice C Beyond Liberal Neutrality: Autonomy, Community and Perfectionist Liberalism (i) Perfectionist Liberalism and the Compulsory Normative Effect of Collective Agreements (ii) Perfectionist Liberalism and the Problem of Union Discipline of Individual Dissentients V CONCLUSION 4 The Third Way and Republican Labour Law I INTRODUCTION II THE GOOD OF COMMUNITY A Community in Civic Republican Thought B Freedom of Association and Civic Community (i) Civic Community and the Closed Shop (ii) Civic Community and the Trade Unionist Conscientious Objector (iii) Civic Community and Secondary Industrial Action (iv) Civic Community and the Right to Organise III THE GOOD OF COLLECTIVE SELF-GOVERNMENT A Freedom as Collective Self-Government as a Political Ideal B Freedom as Collective Self-Government and Collective Bargaining (i) Pluralist and Deliberative Democracy: Allocating Bargaining Rights (ii) Pluralist and Deliberative Democracy: The Duty to Bargain (a) The Legal Duty to Bargain: Passive or Active? (b) Bargaining Structure: The Perils of Excessive Decentralisation (c) Towards a Civic Bargaining Agenda? IV THE GOOD OF NON-DOMINATION A Non-Domination as a Political Ideal B Non-Domination as a Labour Law Ideal C Freedom as Non-Domination in the Workplace: Welfare Capitalism or Collective Bargaining? D The Civic Limitations of New Labour's Conception of 'Social Partnership' (i) The Civic Limitations of Consultation (ii) The Civic Limitations of Voluntary Recognition: The Need for a Company Union Ban V CONCLUSION Part 3: Evaluating the Schedule A1 Recognising Procedure 5 The Political Theory of Union Recognition Campaigns I: Liberal Neutrality and the Cultural Marketplace I INTRODUCTION II REGULATING THE CULTURAL MARKETPLACE I: THE PROBLEM OF UNFAIR PRACTICES A The North American Model of 'Unfair Labor Practices' B Unfair Practices and Ballot Regulation under Schedule A1 (i) ERA 2004 and the Unfair Practice Regime (a) Problems of Definition (b) Problems of Interpretation (ii) The CAC's General Supervisory Jurisdiction over the Ballot Procedure (iii) Minimising Legal Delay: Regulatory and Reconstructive Conceptions of Statutory Recognition (a) Paragraph 22(4)(c) (b) Paragraph 22(4)(b) (c) Paragraph 22(4)(a) III REGULATING THE CULTURAL MARKETPLACE II: ENSURING EQUAL CAMPAIGN OPPORTUNITIES A The Sanctity of Private Property in the US Recognition Procedure (i) The Right to Private Property: Realism and Neutrality (ii) The Union's Right to Organise B Employer Property Rights and Union Organisational Access under Schedule A1 IV CONCLUSION 6 The Political Theory of Union Recognition Campaigns II: The Problem of Adaptive Preferences I INTRODUCTION II MODELS OF POLITICAL AND INDUSTRIAL DEMOCRACY: DEMOCRACY AS PREFERENCE AGGREGATION AND THE PROBLEM OF DISTORTED PREFERENCES A Adaptive Preferences and Collective Bargaining B Endowment Effects and Collective Bargaining III FIVE CIVIC STRATEGIES FOR COUNTERING DISTORTED PREFERENCES A CAC Interpretation of Admissibility Thresholds (i) Union Membership and Support for Recognition: What is the Relationship? (ii) Adaptive and Non-Adaptive Conceptions of Preference Formation (a) Non-Adaptive Preferences: Narrowing the Time Frame (b) Adaptive Preferences: Broadening the Time Frame B Preference Shaping through Deliberative Democracy C Shifting Default Arrangements through Voluntary Recognition D Shifting the Default Position through Staged Recognition (i) The Dilemma of Union Substitution (ii) The Dilemma of Union Instrumentality E The Right to Organise (i) Legal Constraints: Union Activists and Confrontational Tactics (ii) Legal Support: The Case of Bargaining Unit Determination IV CONCLUSION 7 The Political Theory of Collective Bargaining: Pluralism, Deliberation and the Duty to Bargain I INTRODUCTION II TWO CONCEPTIONS OF POLITICS: PLURALIST AND DELIBERATIVE DEMOCRACY III A DELIBERATIVE CONSTITUTION OF INDUSTRIAL DEMOCRACY: DELIBERATION DEFENDED A Consensus and Disagreement: Unitary or Pluralist? B Real Politics is about Interests and Power-Deliberation is a Sanitising Distraction C A Deliberative Conception of the Right to Strike IV THE US DUTY TO BARGAIN IN GOOD FAITH: PLURALIST OR DELIBERATIVE? A Good Faith Bargaining: The Ascendancy of Pluralist Politics B Subjects of Bargaining: The Mandatory/Permissive Distinction in the Duty to Bargain (i) Challenging 'Status Quo' Neutrality (ii) The Intrinsic Value of Deliberation C The Demands of Political Equality: Bolstering the Right to Strike V THE DUTY TO BARGAIN IN BRITISH LABOUR LAW: PLURALISM, DELIBERATION AND SOCIAL PARTNERSHIP A The Primacy of Voluntary Practices: Undermining Deliberative Democracy (i) The Nature of Voluntary Collective Bargaining (ii) The Priority of Subsisting Voluntary Recognition Arrangements B The Statutory Duty to Bargain: Pluralist or Deliberative? (i) The Legal Duty to Bargain I: Scope (ii) The Legal Duty to Bargain II: Procedural Nature VI CONCLUSION: COLLECTIVE BARGAINING IN THE DELIBERATIVE IMAGE A Constructive Mediation B Expanding the Bargaining Agenda C Expanding the Employer's Informational Duties D A Deliberative Conception of the Right to Strike E National and Sectoral Bargaining Structures F An Active Duty to Bargain?