THERE are three alarming global trends in work and employment under the now dominant neoliberal version of capitalism. 

First, the increasing ability of employers to act unilaterally, aided by the state. Second, falling levels of union membership and, thus, declining union influence. And as a result, third, increasing levels of exploitation of labour by capital, best epitomised by the working poor on benefits and minimum wages, on the one hand, and sky-high company profits and executive salaries on the other.

Here in Britain and as a response, the Institute of Employment Rights published a Manifesto for Labour Law in 2016 as a programme for government on employment relations for the next Labour government led by Jeremy Corbyn and John McDonnell. 

The manifesto underpinned Labour’s commitments on employment issues in its own 2017 general election manifesto and will do so again in any future manifesto for a general election.

The Manifesto for Labour Law envisages fundamental changes in the structure and processes of employment relations, with individual rights transformed into collective rights in order to tackle the growth of inequalities in wealth and power at work. 

Among its key components are the statutory right to sectoral collective bargaining, a much stronger statutory procedure for gaining union recognition and increased access and support for unions to recruit workers.

Such components are necessary but not in themselves sufficient to turn the tide on employer dominance and neoliberalism in the workplace. 

This is not because of the argument that it is simply then up to unions — through organising and mobilising — to take advantage of the new laws that would enshrine these components. 

Even with these new rights, unions will still be hamstrung in their battles with employers. Let’s take the examples of the right to sectoral bargaining and a stronger statutory union recognition procedure.

Sectoral bargaining, to set sector-wide pay and conditions, is essential to take wages out of competition between employers and stop the race to the bottom. 

Accessing the right to sectoral bargaining will require passing some kind of union membership and/or worker support threshold. 
Surpassing this and getting good results from the process of bargaining requires unions to recruit and retain members at high levels of density. Employers will be resistant to this.   

Even when the right to gain union recognition from recalcitrant employers is strengthened, it is unlikely to prevent employers from defending their “right” to remain “union-free.” 

The battleground they will fight on is the lowest level and the smallest unit of their employing organisations so that workers and their unions cannot aggregate their resources and power. 

The background is that employers have formally decentralised and fragmented their systems for determining employment relations in order to disaggregate the potential of workers while simultaneously maintaining their own centralised processes and structures.     

Obstacles to gaining union recognition with individual employers (or any of their subunits) will hamper the ability to gain sectoral bargaining. 

Even if having union recognition among the various individual employers was not a requirement for sectoral bargaining, unions would in all likelihood only be strong and organised among a minority of all the employers in the sector (as was the case when such bargaining existed prior to the 1980s).  

So how to square these circles? Myself and a number of academic colleagues have, as Baldrick from Blackadder would say, a cunning plan. It’s called a union default system. 

In all countries around the world, including Britain, the de facto system is a non-union default. Workers have to expressly choose to join — and can be dissuaded from doing so by employers and governments. 

Under a union default, all workers are defaulted into membership of the appropriate union. This is not compulsory membership, a contravention of individual liberty or the return of the closed shop by the backdoor because workers will have the right to opt out of membership. 

The right to be the default union to which workers are defaulted into in any workplace will be gained by the union passing a low support threshold. 

This will bring with it the right to bargain over pay and conditions. By law, employers would have no role to play in choosing the union.

We believe most workers would not choose to exercise the opt-out unless they were in a country like the US where there is often deep ideological antipathy to unions. 

This is because elsewhere there is evidence of high levels of unmet demand for union representation and because workers would quickly see the tangible collective benefits of membership on their pay and conditions. 

The default system would lead unions to be stronger and better resourced as well as enabling the more difficult to organise sectors to be organised.  

Only this union default system is capable of creating a level playing field for unions to operate on in their bargaining relations with employers. 

Otherwise, unions will always be at a major disadvantage of having insufficient resources and reach to organise the vast majority of workers who are now non-union. 

We have seen that trying to organise one employer at a time before moving onto the next does not work. Neither does trying to organise multiple employers at the same time.  

Without the union default, the great ideas contained in the Manifesto for Labour Law will end up being like a house built on sand. 

The union default can be the complementary and necessary foundation for making sure these ideas deliver what they intend to. 

Gregor Gall is an affiliate research associate at the University of Glasgow. The paper was published in the Industrial Law Journal. Contact [email protected] for copies.