Should a Trade Union Be Default?

Labour leader Jeremy Corbyn placed trade unions at the top of the news agenda this week by suggesting workers' rights and union principles be taught in schools. Gregor Gall, editor of Scottish Left Review, proposes the single most important thing a Labour government can do to resuscitate unions is by assigning every worker a union by default...

Under capitalism in Britain and elsewhere, capital is necessarily organised. Elites and productive forces employ executives and managers to run their businesses to further their own interests, namely, the pursuit of profit resulting from the exploitation of our labour. On the flip side, workers are not necessarily organised. And if labour is organised through its own self-will and effort, it has to do so with its own resources and in its own time in addition to performing the act of day-in-day out labouring. In this sense, workers face a double hurdle to get organised to advance and defend collective interests in the face of capital. By contrast, being organised is in the DNA of capital.

This has been the case since the beginning of capitalism over two hundred years ago. Today, however, the hegemony of the neo-liberal form of capitalism has re-calibrated this fundamental aspect of the capital-labour relationship. Under neo-liberalism, the state has been captured by capital to roll back the gains that labour has made through organising. Workers have time and again sought to use the state to level the playing field in its battle with the forces of capital. Now, these gains have been rolled as the state has engaged in widespread deregulation at the behest of neo-liberal governments.

What does this mean? Trade unions are now weaker than they have ever been in the post-war period. The signs of this are evident and everywhere, be that the increasing ability of employers to act unilaterally, aided by the state; falling levels of union membership and, thus, declining union influence; and 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.

It's for this reason that myself and a number of academic colleagues have just put forward a far-reaching and innovative proposal to reverse this power imbalance in the Industrial Law Journal. Our proposal is 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. We desperately want to change this.

Under a union default, all workers would be automatically assigned into membership of the appropriate union. This isn't compulsory membership, a contravention of individual liberty or the return of the closed shop by the backdoor – workers will have the right to opt out of membership. How would this be done? The right to be the default union to which workers are defaulted into in any workplace would be gained by the union passing a low minimum support threshold. This would 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 wouldn't choose to exercise the opt-out unless they were in a country like the USA, 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 a system like this is capable of creating a level playing field for unions to operate on in their bargaining relations with employers. Currently, unions are at a major disadvantage of having insufficient resources and reach to organise the vast majority of workers who are now non-union in almost all countries. 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. This proposal can be the complimentary and necessary foundation for making sure these ideas deliver what they intend to.

The Manifesto for Labour Law was published by the Institute of Employment Rights in 2016 as a programme for government on employment relations for the next Labour government in Britain led by Jeremy Corbyn and John McDonnell (below). In essence, it underpinned the party's commitments on employment issues in its own 2017 general election manifesto and will naturally do so again in any future manifesto for a general election.

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This manifesto 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. Amongst 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 neo-liberalism in the workplace. This isn't because of the argument that it's 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. One only has to look at examples of the right to sectoral bargaining and a stronger statutory union recognition procedure to see this.

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 naturally always be resistant to this.

Even when the right to gain union recognition from non-compliant employers is strengthened, it's unlikely to prevent said 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 can't 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 sub-units) will hamper the ability to gain sectoral bargaining. Even if having union recognition amongst the various individual employers wasn't a requirement for sectoral bargaining, unions would in all likelihood only be strong and organised amongst a minority of all the employers in the sector (as was the case when such bargaining existed prior to the 1980s).

It's why we're so convinced that the union default system is a necessary and vital compliment to the manifesto. If Labour ultimately is elected to office under the leadership of Corbyn and McDonnell, proposals like this will allow good intentions to be turned into good results. This can only be of benefit to working people up and down this country.

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