The UK's Employment Act 2002 introduced a statutory right to time off work for trade union 'learning representatives', so that they can carry out their duties. The new provisions came into force in April 2003, as did a revised Advisory, Conciliation and Arbitration Service (Acas) code of practice which includes guidance on their practical application. This feature reviews the background, nature and potential impact of the legislation.
Since the Labour Party government came to power in 1997, it has identified lifelong learning as providing 'a new and modern role for trade unions'. From the early 1990s, individual trade unions and the Trades Union Congress (TUC) have been calling for workplace learning committees and rights for trade unions to bargain on training. Although Labour has been more open to dealing with training and development on the basis of social partnership than the previous Conservative administrations (UK9906109F), so far this approach has not been formalised.
Initially, the government adopted the approach of providing 'seedcorn funding' to trade unions for innovations in workplace learning through the Union Learning Fund (ULF) established by the Department for Education and Employment (now the Department for Education and Skills). This provided resources to trade unions to develop and build on a number of initiatives which were already under way. The ULF contributed to the development of additional roles for existing union representatives, for example, in negotiating 'learning agreements' and in providing advice and guidance to members, as well as creating new roles for union activists as advocates and enthusiasts for learning. The success of the ULF in creating demand for learning in the workplace lay behind the government’s decision to include statutory rights for 'union learning representatives' in the Employment Act 2002.
The new provisions
Where trade unions are recognised by employers, the Employment Act 2002 (UK0210103F) provides a statutory right to paid time off work for appropriately trained union learning representatives (ULRs) to carry out a range of duties, including:
- analysing members’ learning or training needs;
- advising members about learning or training matters;
- arranging learning or training;
- promoting the value of learning or training;
- consulting the employer about these issues; and
- undergoing training relevant to their functions.
Code of practice
The Act required the Advisory, Conciliation and Arbitration Service (Acas) to produce a code of practice containing practical guidance on the operation of the new provisions. Acas did so by including guidance on time off for ULRs in a revised version of its existing code of practice on time off for trade union duties and activities. Following the revised code’s approval by Parliament, the new statutory right and the code of practice came into force on 27 April 2003.
Among other matters, the revised code of practice states that many employers have in place well-established training and development programmes for their employees, and that ULRs should liaise with their employers to ensure that their respective training activities complement one another and that the scope for duplication is minimised.
In terms of meeting the condition in the Act that URLs have been or will be suitably trained for their role, the code states that this could be done by completing a training course approved by the TUC or the ULR’s own union. Alternatively, ULRs may have gained the relevant expertise and experience in areas such as teaching, training, counselling, careers advice and guidance, human resource development or 'shadowing' an experienced representative. The code states that ULRs should be able to demonstrate competence in: identifying and recording learning needs and drawing up a plan to meet them; accessing information; or providing advice and guidance.
On the provision of facilities, the code states that consideration could be given to allowing ULRs access to accommodation where they can discuss training matters with employees.
The trade union response
These new rights have been welcomed by trade unionists. Brendan Barber, the TUC general secretary elect, said in a statement: 'These new rights make it easier for unions to encourage more members to become learning reps, and will make it harder for those bosses who have previously been unwilling to make learning a workplace priority to continue to stand in the way or progress and better productivity.'
As well as providing a means of extending entitlements to learning for union members, the new legislation can also serve as an organising tool. Model agreements are being developed and events organised to raise trade union awareness and support. Issues that need to be addressed concern how to gain acceptance for the ULR role and to incorporate the learning agenda into site agreements and committee structures. Whereas the Union Learning Fund provided funding and project workers, albeit short term, the challenge now is to sustain workplace learning activities and for union organisers and officers to incorporate this issue into mainstream union campaigns.
Gaps in statutory provision
However, critics claim that there are weaknesses in the statutory provisions. There is no requirement on employers to consult with ULRs or other trade union representatives on training. A requirement to consult on training issues does apply to employers where they have been required to recognise trade unions under the statutory recognition procedures of the Employment Relations Act 1999 and the Central Arbitration Committee has specified the method by which they must conduct collective bargaining (UK0007183F). However, the number of such cases is small and no such requirement applies where trade unions are recognised on a voluntary basis. In other words, important questions concerning the resources allocated to training and development and the provision of information on employers’ training plans have not yet been addressed. Moreover, when the former education secretary, David Blunkett, announced the government’s decision to award statutory rights to learning representatives, he referred to them as 'foot soldiers' and 'workplace experts on skills'- reflecting the emphasis in the government’s consultative paper on the proposals that this role would be separate from collective bargaining and would focus more narrowly on 'increasing motivation and enthusiasm for learning among employees and employers'. However, this emphasis on the ULR’s role in raising demand for learning is not reinforced by employee entitlements to paid educational leave.
Although it has not been addressed in the provisions for the statutory recognition of ULRs, the question of entitlements to paid educational leave and rights to consultation on the employers’ training plans may be on the horizon. There is now a Campaign for Paid Educational Leave, supported by the TUC, individual trade unions and organisations such as the Open University and the National Institute for Adult and Continuing Education. In 2002, the Treasury announced six pilot schemes concerning paid educational leave, aimed at encouraging the training of workers with a low level of qualification (UK0302106F). A similar entitlement to training and personal development is available to staff without professional qualifications in the National Health Service (NHS) under the NHS Learning Accounts Scheme. Equally, the TUC is lobbying the government to include training and development as items on which consultation should take place when the the 2002 EU Directive (2002/14/EC) on national information and consultation rules (EU0204207F) is transposed into UK law.
Commentary
The creation of statutory entitlements for union learning representatives is a positive development for trade unionists. Trade union strategists see workplace learning as a mechanism for recruiting and retaining members and for engaging them in new roles as activists within workplace union structures. Union representatives’ roles are being extended to reflect a broader agenda, linked to the quality of working life. Richard Hyman, the industrial relations academic, has referred to this as the 'qualitative agenda', as opposed to the traditional bargaining agenda which is focused on wages and conditions of employment (see ‘Changing trade union identities and strategies’, in New frontiers in European industrial relations, R Hyman and A Ferner (eds), Blackwell, 1994). For the full potential of this approach to be realised, trade unions will need to develop organisational capacity in this broader arena and integrate the qualitative agenda with their mainstream bargaining concerns. Further statutory developments may contribute to embedding the ULRs’ role into union structures and strategies but, to date, the Labour government has shown a preference for weak rather than strong entitlements to workplace learning and training. (Helen Rainbird, University College Northampton)