EMPLOYMENT PROTECTION AT 1 .
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This will cost employers a packet
by John Darker, AMBIM
THE Employment Protection Act, which received the Royal Assent on November 12, is seen by its sponsor, Mr Michael Foot, the Employment Secretary, as epoch-making. It is 150 years since the passing of the Combination Laws Repeal Amendment Act of 1825, an Act which enabled "trade unions to exist. No one needs any Persuading that the unions today are at the centre of national life, for good or ill.
The new Act owes a lot to the intense disgruntlement aroused in British trade unions during the troubled life of the Industrial Relations Act, 1971. Mr Foot hopes the new Act will "establish permanently a basis of labour practice and law that is sensible enough and strong enough not only to meet today's changing industrial needs but to serve as the basis for generations to come."
There are two dominant themes in the new Act: E It strengthens collective bargaining and encourages employee participation in a shared control of the decisions directly impinging on their lives and the lives of their families.
It creates a series of new rights which will bring to employees paid "on the clock" the type of conditions of service for long taken for granted by most white-collar workers.
2,000 disputes resolved
The Advisory, Conciliation and Arbitration Service (ACAS) which has functioned effectively in the past year or so is given a statutory basis in the new legislation. ACAS has helped to resolve more than 2,000 disputes in its short life and its workload is said to be increasing— some evidence that both sides of industry are prepared to seek help from ACAS when in difficulty.
The new Act will give to all workers laid off or put on shorttime the right to be legally paid, At present, about two million workers get no such protection. Also for the first time there will be a statutory right for a woman having a baby not to be dismissed, to get maternity pay and, if she wishes, to get her job back later. Here again, this new right
will benefit millions of women without such rights; it hardly needs to be said that it will make the job of employers considerably more difficult when they face the practical problems occasioned by maternity leave. It seems likely that a new regiment of women temporary staff will be needed to fill the jobs of women producing their families.
The general duty of ACAS is to improve industrial relations and encourage collective bargaining. It can conduct inquiries, offer advice and provide conciliation and arbitration services.
The Central Arbitration Committee (CAC) takes over the functions of the defunct Industrial Relations Board. The CAC will deal with complaints under recognition and disclosure of information procedures laid down in the Act. It will also arbitrate in disputes referred to it.
A certification officer will be responsible for certifying trade unions as independent; only unions which are certified qualify for certain rights and privileges under the Act.
Trade union recognition
A trade union having difficulty in obtaining recognition from an employer may ask ACAS to examine its case and make a recommendation for recognition. If ACAS cannot settle the matter by agreement with the employer or if its recommendation is not complied with, the trade union may cornplain to the CAC and seek an enforceable award of terms and conditions.
A controversial feature of the new Act is that employers will be required to disclose to trade unions information needed for collective, bargaining purposes. ACAS is working on a Code of Practice to establish guidelines. A complaint of failure to disclose may, if necessary, be taken to " the CAC for an enforceable award of terms and conditions.
Wages Councils—which many trade unionists hoped would be abolished—are given extended powers. They will be able to make their own wages orders on all terms and conditions of service and to progress towards free collective bargaining through use of a "halfway house"—the Statutory Joint Industrial Council.
In road haulage, the wide disparity of earnings between employees of companies sticking closely to Wages Council scales, ie under £25 basic, and drivers working for well-established, prosperous, companies, needs no emphasis. JICs should make a contribution in levelling up the sub-standard wages and conditions obtaining in a large section of the industry though—if Mr Alan Law manages to preserve free collective bargaining in the Midlands—there will be nothing tc stop the richer companies from out-bidding weaker competitors when and if wage controls are lifted.
Guarantee payments
All employers will be concerned with the new rules calling for a guarantee payment to workers not provided with work on a normal day. A guarantee payment will not be payable if the employer cannot provide work because of a trade dispute involving other employees of the same employer or of an associated employer. And an employee will not be entitled to guaranteed pay if he has been offered suitable alternative work which he has refused.
The amount of pay is based on the employee's normal daily earnings but is subject to a maximum of £6 a day. An employee is entitled to be paid for up to five days in any quarter beginning February 1, May 1, August 1 and November 1. A contractual right to guaranteed pay may be offset against the statutory right.
It is not yet clear how this new provision will affect road transport employers, in general. Probably most employees' conditions of service are already more generous than the new mandatory requirement. But failure of an employer to make a guarantee payment gives an employee the right to protest to an industrial tribunal, which would be empowered to order the employer to pay up. All the parties to a collective agreement providing for guaranteed pay may apply to the Secretary of State to be exempted from the statutory requirements.
An employee who is suspended from work by his employer on medical grounds will be entitled to be paid for a period not exceeding 26 weeks. Suspension could be due to a requirement imposed by statutory provision or under a recommendation in a code of practice, such as under the Health and Safety at Work etc Act 1974.
'Assessing the cost
Here, again, it is difficult to assess the cost of the new burden on employers though some sectors in road haulage handling hazardous products may be at greater risk than other sectors. Employees suspended on medical grounds will not be entitled to pay if an offer of suitable alternative work is refused. Failure by an employer to pay could be reversed on the employee's appeal to an industrial tribunal.
Temporary staff hired to fill gaps caused by such things as maternity teave or medical suspension will not be able to claim that dismissal was unfair if this occurs on the return of the established employee. The need for temporary replacement staff brought about by legal requirements imposed on employers may be welcomed by staff employment agencies. What will be interesting is the rate for the job in a market situation.
The proportion of women employed in road transport rose from 14.6 per cent to 15.7 per cent between 1970 and 1974. This latter percentage does not compare with the 40 per cent of female employment in British industry as a whole. But he numbers of women working in road transport may be expected to increase under the new Sex Equality legislation. In April 1974 there were around 133,000 women employed in the road transport industry and the new law on maternity benefit leave will clearly affect many more, employers than previously.
Dismissal on grounds of pregnancy will be unfair unless at the effective date of termination the woman is, or has become as a result of her . pregnancy, "incapable of adequately doing the. work which she is employed to do." Additionally, dismissal may be lawful if continued employment would contravene a duty or restriction imposed on (either by the woman or her employer) of a duty or restriction imposed by statute.
The detailed regulations governing the rights and responsibilities of women and employers in cases of maternity benefit claims cannot be briefly summarised. In broad terms maternity pay is payable for the first six weeks of absence provided this begins after the 11th week before the baby is due. The weekly amount of maternity benefit will be 9/10ths of a week's pay less the amount of the standard rate of maternity allowance, whether or not the employee receives this.
Defaulting employers
A Maternity Pay Fund is set up under the new Act which is to be financed by an 0,05 per cent addition to employers' social security contributions. An employer will be able to claim a rebate from the Fund to cover the full amount of maternity pay required by the Act. Should an employer who is liable to pay be unable to do so, then the Department of Employment makes a direct payment to an employee, recovering the amount paid from the defaulting employer where possible.
The new Act encourages trade union membership, and responsible activities, while protecting the small minority of employees who will not join a trade union because of religious belief.
An employee may complain to an industrial tribunal if his rights are contravened. If conciliation fails, tribunals have power to award compensation.
ACAS will shortly be publishing a Code of Practice giving guidance to employers and trade unionists on the section of the Act entitling officials of independent recognised trade unions to reasonable time off work, with pay, to carry out industrial relations work relevant to the employer and the employees they represent. Trade union officials will also be entitled to time off for training to help them to be more proficient in carrying out their duties.
Many large employers already give time off to employees who are members of local authorities, or magistrates, etc. The Act requires reasonable time off to be given for such public work subject to certain safeguards such as "the circumstances of the employer's business and the effect of the employee's absence on the running of the business."