CIPD - Workplace representatives: a review of their facilities and facility time

Public policy

CIPD response to the DTI consultation

General comments

With 127,000 members, the Chartered Institute of Personnel and Development (CIPD) is the largest organisation in Europe concerned with the management and development of people. We have consulted our branches across the United Kingdom in order to provide a balanced and objective response to the consultation document that is based on current workplace experience.

CIPD members who have regular contacts with workplace representatives recognise the contribution they can make to effective management, including giving greater legitimacy to management messages. There is specific support for representatives’ role in relation to health and safety. Where organisations adopt a partnership approach, trade union representatives can work with management to encourage good practice and help employees to be realistic.

While recognising the potential benefits of representation to employers, we are doubtful how much weight should be placed on the estimates of costs and benefits in Annex B to the consultation document. The value of workplace representation will be heavily influenced by the quality of working relationships established between managers and representatives, and the extent to which both sides are adopting a “partnership” model.

We see no need for amending legislation in relation to workplace representation. We understand the time pressures on representatives, which largely reflect the pressures affecting employees generally in balancing their different roles and responsibilities. But legislation cannot in practice take away from representatives and line managers the job of deciding what is a reasonable amount of time to spend on trade union activities in the circumstances of the individual workplace. In order to continue doing a useful job, representatives need management support and understanding of their role and this is unlikely to be enhanced by any statutory redefinition or extension of their rights.

We would support updating the Acas Code of Practice on “Time off for trade union duties and activities”, to ensure that it reflects current workplace realities. It might be useful however to consider issuing similar guidance on the use of non-union representatives: an exclusive focus on the role of trade union representatives might give the impression that the Government does not value the activities of non-union representatives.

The consultation paper notes that trade union representatives get more training than non-union representatives. One reason for this is surely that there is no official funding for non-union training. It seems indefensible that financial support for training representatives should be delivered wholly through trade union channels.

We set out below some comments from CIPD branches and members on specific questions raised in the consultation document.

Q 2a. What is the future of workplace representation and the expression of employee voice on unchanged policies?

Several branches suggest that it is increasingly difficult to find employees who are willing to act as workplace representatives, and that the system of representation is under serious stress. A member in Devon and Cornwall comments: “Our trade union have difficulty in finding members to stand for Branch Council due to work pressure and time available. This is also reflected in other areas such as our Diversity Council reps –limited people come forward and then time is limited for activity.”

A representative in the South East agrees that it is becoming increasingly difficult to get good people to act as Staff Representatives, either as a TU Member or not. His view is that younger people do not understand the value of the representative to the organisation and this may explain why the average age of reps is 46. “It's only those who have this sort of thing in their blood who take an interest.” There is also the possible stigma that the Staff Representative is seen as a trouble maker and “they never get on it their career because the management think they are a necessary waste of space.”

Our Northamptonshire Branch comments: “From experience of public sector organisations in local government and universities, trade unions are finding it increasingly difficult to find employees who are willing to act as representatives. Reasons given to the respective trade unions were not about clarity of role or lack of training or guidance but about the volume of work in an increasingly litigious country. Concerns were raised about the increasing complexity of case law and the long term nature of stressful cases (grievance, disciplinary, harassment etc). Often this resulted in more “militant” members of staff volunteering and whilst this provided continuity of representation it often led to clashes with management”.

Our Gloucestershire Branch comments:

“The view from a trade union representative centres around concern at the lack of training for workplace representatives, which can lead to the volunteer soon withdrawing from the role through feeling out of their depth when dealing with better informed management or trade union representatives. There is also concern that in a litigious society, no win – no fee solicitors taking on trade unions can leave the representative with little protection or incentive to take an active role. There is also evidence of it becoming increasingly difficult to find a sufficient number of representatives, which places a heavy burden on the dedicated few who are always there but also having to cope with the growing pace and pressure of the workplace.

On balance, however, the view is that the need for formal representation is diminishing through changes to both management and employee attitudes. The future seems to focus more on direct communications with all staff plus the ICE-type of bodies. Today’s independent-minded employee – typically engaged upon work which is now more flexible and technology-driven - is more than capable of fighting their corner, or leaving the firm. This may be tested if we enter a period of more difficult economic and employment circumstances. Recent evidence shows that an undercurrent towards employment disputes remains just below the surface.”

A member in Devon and Cornwall comments: “From an HR perspective I find that both staff and managers have a limited understanding of the role of employee representatives or the function of employee representation and consultation. This leads to reluctance on behalf of managers and employees to initiate such representation systems. The issues are particularly strong in SMEs, where staff are rarely consulted.”

Q 2c What benefits does workplace representation bring and how can these benefits be realised more fully? Do the estimates in Annex B provide a broadly acceptable basis for quantifying the existing benefits?

There is support for the positive role that trade union representatives can play. One member comments: “My view is that the staff representative plays an important part in any organisation of a reasonable size - say 1000 staff or more. It's a perfect way for managers to communicate with staff and essential where there are collective bargaining arrangements. Even without such arrangements, it's an advantage to be able to funnel ideas through a few representatives about issues such as change management.”

Annex B suggests that the annual benefits from employee representation amount to almost £0.5 billion. The biggest contributors to this sum are said to be:

indirect health and safety representatives reduce injury rate by 10-15%; and
representation reduces dismissal rate by 10-15% (plus a similar reduction in voluntary exits).

We feel it is difficult to comment on such large and broad numbers and probably better to avoid using gross estimates in what is inevitably a somewhat subjective area. We feel that an evidence-based assessment of the costs and benefits of representation can possibly only be attempted in relation to individual workplaces. The difficulties in reaching any overall conclusion are highlighted by the comment from one of our members, who notes:

“My observations from working in a unionised environment as a manager were that well trained union and safety reps were essential to maintain a safe environment and to ensure that senior management didn't start taking short cuts in time of crises such as redundancy. [However] I also noted that some operative or semi-skilled level TU reps enjoyed their representation work so much that they produced hardly any work output and indeed one manager went so far as to say that they were starting to forget what they were coming to work for. “

Another member comments: “I agree with the figure regarding health and safety for large public sector organisations but would contend that this is unlikely to be the case with SMEs who often have less formalised health and safety representative activities, if any, and are unable due to their size to be able to facilitate any number of representatives or to accommodate much time off for such duties. Within large public sector organisations the representatives often have a very active and proactive role. As the number of representatives has increased and they have more active and formal meetings/ committees with management, the number of accidents has decreased. “

The same member quoted an instance in relation to a disciplinary issue where the representative had facilitated a voluntary exit which was beneficial to the organisation:

“A night worker was clearly recorded by the security CCTV camera, dragging a bed into an office to sleep, rather than undertake their night duties. [He] resigned voluntarily in negotiation with the representative before a disciplinary investigation commenced. Such scenarios can result in shorter processes being followed and agreements being reached which prevent adverse publicity or subsequent claims and save the organisation time and money.”

More generally, the Devon and Cornwall Branch comments that: H&S representatives may be useful in enforcing customs and practices which may otherwise be ignored by employees. “Staff representatives can be brought on-side/understand that supporting poor performing employees is not a service to the rest of those they represent and can be useful in giving the message to a wayward employee about what are the just expectations by the employer.”

But there is a contrary view from another member: “I probably agree that representatives reduce dismissal rates but I would ask whether this is a good thing. Strong trade unions certainly make it difficult to dismiss troublesome employees - especially in the public sector (NHS and the railways notably) and this has to be bad for business.” A recent CIPD survey provides evidence that in organisations where trade unions are recognised there are more grievances but fewer disciplinary cases.

Our Gloucester Branch comments that “the role of workplace representative is seen as an important and useful tool in the communications toolbox where it provides a direct and more personal approach alongside the written/electronic versions. Firms who genuinely see that workforce co-operation is essential for profit do their utmost to ensure that terms and conditions are good and that communications are two-way. Increasingly, this is directly with all staff and the ICE committees currently seem to be literally ‘tea and toilets’. Nevertheless, where joint attitudes and respect are good, major change e.g. including difficult redundancies can be achieved. We hear less of the word ‘partnership’ today but this seems to reflect ready acceptance of it as the way forward rather than its having fallen out of fashion.”

Northamptonshire Branch also believes that representatives can be effective in bringing to management attention issues that might otherwise have been ignored or neglected: “In organisations where formal and informal meetings of a genuinely constructive partnership nature took place with workplace representatives this was extremely effective and added value. It afforded a real opportunity for discussion of identified issues and potential hot spots; enabling them to be addressed/ resolved before they evolved into major industrial relations issues for individuals and or groups or the organisation. This saved time and money and improved a feeling of joint ownership of some problems and also improved staff satisfaction and goodwill and therefore morale and productivity. This was especially productive when departmental/ middle managers met with trade union/staff representatives informally, often on a one-to-one basis. It resulted in off-the-record discussions where “potential issues” were flagged and solutions found before situations escalated.”

Some members feel however that representatives tend to reinforce issues that management are already aware of. One says: “I'm not convinced that representatives play an important part in bringing management attention to issues that might otherwise have been ignored. I'm not sure that's what they should be expected to do in a modern, well-managed business. The only exception might be in the area of health and safety where I agree they have made a tremendous difference over the years.”

Q 3b Do the estimates in Annex B provide a broadly acceptable basis for quantifying the existing costs to employers and representatives of time allocated at work and at home on the duties of representatives?

The consultation document says that 75% of the assumed costs are time off for representatives. Since these estimates are based on the mid-point of WERS 2004 data, they can presumably be taken as reliable. However they take no account of the wider costs and benefits of representation, which are contingent and harder to measure but liable to have a more significant impact on employers’ business in the long run.

A Scottish member comments that line managers see it as their job to manage the employment relationship and can perceive representatives as disruptive to employee relations and productivity. Time off for representatives can also cause resentment from other employees. Taking a rather wider view of the impact of union representation, he suggests that it “may delay /prevent modernisation of the public sector” and that this is probably resented by employees in the private sector in terms of its impact on pensions, salaries and job protection.

A member in Devon and Cornwall says: “I think that the current low number of representatives increases the burden on those that there are (particularly in the public sector), therefore impacting on their ability to do their “day job” and increasing the costs. A more reasonable spread of representation may not have the same costs as there would be less need to backfill the time. I think that unionised representatives exacerbate the issue where they discourage non-union representatives. In most organisations a healthy mix of both union and non-union representatives increases the numbers of volunteers that should reduce the costs.”

Q 4e Do consultees consider that the absence of training of non-union representatives constitutes a problem and, if so, what are its principal causes and what ought to be done to alleviate the problem?

Training for non-union representatives should include joint union/management courses in a partnership context. Members are aware of several examples of joint training in the public sector of courses facilitated by ACAS which have resulted in more effective and real partnership working. While employers typically pay for the training of non-union representatives, this may actually be a positive factor in encouraging joint learning events with managers.

Branch opinion is generally supportive of the value of training for non-union representatives. One branch suggests that “where training is poor/absent, it is no wonder that ‘management end up with the trouble-makers’. “ Another branch suggests that as SMEs often lack the financial resources to fund training (and struggle to afford time off for individuals to attend the courses), the Government should contribute to such training and offer incentives to employers to ensure individuals are released.

Devon and Cornwall Branch suggests that “A lack of understanding can cause significant employee relations issues. Managers tend to rely on the knowledge and understanding of employee reps and if that is missing – whole organisations (particularly SMEs) can fail to fulfil their employment duties appropriately. There can also be inertia due to the lack of confidence to take decisions.”

A CIPD member in the South-East of Scotland writes: “For a period of five years I was a representative in a non-union organisation. I guess we were very lucky as we were strongly encouraged to elect workplace representatives by the MD. These representatives were an essential part of our communications system. Team briefing downwards took place without fail in the first week of every month and the corresponding feedback upwards took place in the middle of the month ….. I found the system worked extremely well. We had basic training on listening/ interviewing /presenting, but nothing on negotiation as this was not part of our role. However in addition to giving feedback on the briefings we could also raise brand new issues that would then be passed on to the senior management team for consideration. The benefits are obvious but one of the greatest was that this system killed the rumour grapevine stone dead as communications became pretty transparent. I believe the solution lies not in throwing huge amounts of money at training but encouraging MDs to tell the workforce that they really do want to hear from them, and that it will enhance career prospects rather than damage them - this was the initial fear when the system was set up.”

Q 6a: Do you think the Acas Code of Practice needs to be updated to reflect modern circumstances?

Members feel it is important to ensure that Acas guidance is made consistent with the requirements of the Information and Consultation regulations.

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