Collective bargaining is the process through which workers negotiate, as a group, with their employer; this can occur at various levels (enterprise, industry/sector, national). Traditionally, the subjects of the negotiation are wages, benefits, working conditions and fair treatment. However, collective bargaining can also address issues that do not directly affect the workers employed in the enterprise, such as increased old-age pensions for workers already retired. Less often, collective bargaining addresses issues that reach well beyond the workplace, such as protection of the external environment.
In a very small enterprise, it is possible for all the workers to negotiate as a body with their employer. This kind of informal collective bargaining has existed for centuries. Today, however, most collective bargaining is carried out by workers’ organizations, or unions.
The definition used in the ILO Convention concerning the promotion of collective bargaining, 1981 (No.154), Article 2, is broad:
...the term... extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more workers’ organizations, on the other, for –
(a) determining working conditions and terms of employment; and/or
(b) regulating relations between employers and workers; and/or
(c) regulating relations between employers or their organizations and a workers’ organization or workers’ organizations.
Collective bargaining is an important tool for raising living standards and improving working conditions. Even though safety and health is addressed in the national law of almost all countries, collective bargaining often provides the mechanism through which the law is implemented in the workplace. For example, the law may mandate joint safety and health committees or works councils, but leave the details to be negotiated between the employer and the workers’ organization.
Unfortunately, collective bargaining is under attack by authoritarian employers and repressive governments, both in developed and developing countries. It rarely exists in the informal sector or in small, traditional enterprises. As a result, the majority of the world’s workers do not yet enjoy the benefits of effective collective bargaining under a framework of worker rights guaranteed by law.
History of Union Action for Safety and Health
There is a long history of workers’ organizations taking collective action for safety and health. In 1775, Percival Pott, an English surgeon, made the first known report of occupational cancer – skin cancer in London chimney sweeps (Lehman 1977). Two years later the Danish Chimney Sweepers Guild, in what was the first known response by a workers’ organization to the threat of occupational cancer, ordered that apprentices be given the means for a daily bath.
The Labour Agreement between the Bethlehem Steel Corporation and the United Steelworkers of America
The agreement between Bethlehem Steel and the United Steelworkers of America is typical of company-wide agreements in large unionized manufacturing enterprises in the United States. Steel industry labour agreements have contained safety and health articles for more than 50 years. Many provisions negotiated in the past gave workers and the union rights that were later guaranteed by law. Despite this redundancy, the provisions still appear in the contract as a hedge against changes in the law, and to allow the union the option of taking violations to impartial arbitration rather than the courts.
The Bethlehem agreement runs from 1 August 1993 to 1 August 1999. It covers 17,000 workers in six plants. The full agreement is 275 pages long; 17 pages are devoted to safety and health.
Section 1 of the safety and health article pledges the company and the union to cooperate in the objective of eliminating accidents and health hazards. It obligates the company to provide safe and healthful workplaces, obey federal and state law, provide employees with the necessary protective equipment free of charge, provide chemical safety information to the union and inform workers of the hazards and controls for toxic substances. It grants the union’s central safety and health department the right to any information in the company’s possession that is “relevant and material” to an understanding of potential hazards. It requires the company to make air sampling tests and environmental investigations at the request of the union co-chairperson of the plant’s safety and health committee.
Section 2 sets up joint union-management safety and health committees at the plant and national levels, prescribes the rules under which they operate, mandates training for committee members, gives members of the committee access to all parts of the plant to facilitate the committee’s work and specifies the applicable rates of pay for committee members on committee business. The section also specifies how disputes over protective equipment are to be resolved, requires the company to notify the union of all potentially disabling accidents, sets up a system of joint accident investigation, requires the company to gather and supply to the union certain safety and health statistics, and establishes an extensive safety and health training programme for all employees.
Section 3 gives workers the right to remove themselves from work involving hazards beyond those “inherent in the operation” and provides an arbitration mechanism through which disputes over such work refusals can be resolved. Under this provision, a worker cannot be disciplined for acting in good faith and on the basis of objective evidence, even if a subsequent investigation shows that the hazard did not in fact exist.
Section 4 specifies that the committee’s role is advisory, and that committee members and officers of the union acting in their official capacity are not to be held liable for injuries or illnesses.
Section 5 states that alcoholism and drug abuse are treatable conditions, and sets up a programme of rehabilitation.
Section 6 establishes an extensive programme for controlling carbon monoxide, a serious hazard in primary steel production.
Section 7 provides workers with vouchers for the purchase of safety shoes.
Section 8 requires the company to keep individual medical records confidential except in certain limited circumstances. However, workers have access to their own medical records, and may release them to the union or to a personal physician. In addition, physicians for the company are required to notify workers of adverse medical findings.
Section 9 establishes a medical surveillance programme.
Section 10 establishes a programme for investigating and controlling the hazards of video display terminals.
Section 11 establishes full-time safety representatives in each plant, chosen by the union but paid by the company.
In addition, an appendix to the agreement commits the company and the union to review each plant’s safety programme for mobile equipment operating on rails. (Fixed rail equipment is the leading cause of death by traumatic injury in the American steel industry.)
However, safety and health seldom was an explicit issue in early labour struggles. Workers in dangerous jobs were overwhelmed by more pressing problems, such as low wages, crushing hours of work and the arbitrary power of factory and mine owners. Safety hazards were obvious in the daily toll of injury and death, but occupational health was not well understood. Workers’ organizations were weak and under constant attack by owners and governments. Simple survival was the primary goal of workers’ organizations. As a result, the grievances of nineteenth-century workers rarely manifested themselves in campaigns for safer conditions (Corn 1978).
However, safety and health sometimes joined other issues in early labour struggles. In the late 1820s, workers in the textile industry in the United States began to agitate for shorter working hours. Many of the workers were women, as were the leaders of such rudimentary unions as the female labour reform associations of New England. The proposed 10-hour day was seen mostly as an issue of general welfare. But in testimony before the Massachusetts legislature, workers also decried the effects of 12- and 14-hour days in badly ventilated mills, describing a “wasting sickness” they attributed to cotton dust and bad ventilation, in what are now recognized as some of the first reports of byssinosis. They had little success in winning recognition from the mill owners, or action from the legislature (Foner 1977).
Other union actions dealt more with the effects of occupational hazards than with their prevention. Many nineteenth-century unions adopted welfare programmes for their members, including disability payments to the injured and benefits for survivors. US and Canadian mining unions went one step further, establishing hospitals, clinics and even cemeteries for their members (Derickson 1988). While unions attempted to negotiate better conditions with employers, most agitation for safety and health in North America was in mines aimed at state and provincial legislatures (Fox 1990).
In Europe, the situation began to change around the turn of the century with the rise of stronger workers’ organizations. In 1903, the German and French painters’ unions began a campaign against the hazards of lead paint. The Factory Workers Union of Germany had an active industrial hygiene programme by 1911, published education materials on chemical hazards and began a campaign for safeguards against chromate-induced lung cancer, ultimately leading to a change in the production method. Trade unions in the United Kingdom represented their members in workers’ compensation cases and fought for better laws and regulations. Their work showed the interplay between collective bargaining for safety and health and the factory inspection system. In 1905, for example, trade unions filed 268 complaints with the British factory inspectorate (Teleky 1948). As early as 1942, the Swedish Employers’ Confederation and the Swedish Confederation of Trade Unions reached a nationwide Working Environment Agreement regarding local safety and health services. The agreement has been revised and extended several times; in 1976 the original parties were joined by the Federation of Salaried Employees (Joint Industrial Safety Council of Sweden 1988).
North America lagged behind. Formal corporate safety programmes were instituted by some large employers around the turn of the century (for a description of such programmes in the steel industry see Brody (1960), or the self-congratulatory Year Book of the American Iron and Steel Institute for 1914 (AISI 1915)). The programmes were highly paternalistic, relied more on discipline than education and often were based on the premise that workers themselves were largely to blame for industrial accidents. Major disasters such as New York’s 1911 Triangle Shirtwaist Fire, which killed 146 workers, led to union campaigns for improvement and ultimately to improved fire safety laws. However, safety and health as a widespread labour issue came only with the rise of strong unions in the 1930s and 1940s. In 1942, for example, the founding Constitution of the United Steelworkers of America required every local union to establish a safety and health committee. By the mid-1950s, joint labour-management safety and health committees had been established in most unionized mines and manufacturing plants and in many other workplaces in the construction and service sector; most union contracts included a section on safety and health.
Process of Collective Bargaining
It is common to think of collective bargaining as a formal process that occurs at regular intervals and which results in a written agreement between the workers’ organization and the employer or employers. This kind of bargaining presupposes a succession of demands or proposals, counterproposals and extended deliberations. The process can produce a variety of results: a collective bargaining contract, letters of understanding, joint declarations or mutually agreed codes of practice.
However, collective bargaining can also be understood as a continuous process for solving problems as they arise. This kind of collective bargaining occurs every time a shop steward meets with an area supervisor to settle a dispute or grievance, every time a joint safety and health committee meets to discuss problems in the plant, every time a joint union-management team considers a new company programme.
It is this flexibility of collective bargaining which helps ensure its continued viability. There is, however, one precondition for formal or informal bargaining: for negotiations to be a success, the representatives of both sides must have the authority to bargain and to strike a deal that is meant to be honoured.
Collective bargaining is sometimes seen as a test of strength, in which a gain for one side is a loss for the other. A wage increase, for example, is seen as a threat to profits. A no-layoff agreement is seen as limiting management’s flexibility. If bargaining is seen as a contest, it follows that the most important determinant of the final outcome is the relative power of the parties. For the workers’ organization, this means the ability to halt production through a strike, organize a boycott of the employer’s product or service or bring some other form of pressure to bear, while maintaining the loyalty of the organization’s members. For an employer, power means the ability to resist such pressures, replace the striking workers in countries where this is permitted or hold out until hardship forces workers back to the job under management’s conditions.
Of course, the vast majority of labour negotiations end successfully, without a work stoppage. Nevertheless, it is the threat of one that leads both sides to seek a settlement. This kind of negotiation is sometimes called positional bargaining, because it begins with each side taking a position, after which both sides move by increments until a compromise is reached, based on their relative strengths.
A second model of collective bargaining describes it as a mutual search for an optimum solution (Fisher and Ury 1981). This kind of bargaining assumes that a proper agreement can lead to gains for both parties. A wage increase, for example, can be offset by greater productivity. A no-layoff agreement can encourage workers to improve efficiency, since their jobs will not be threatened as a result. Such bargaining is sometimes called “mutual gains” or “win-win” bargaining. What is most important is the ability of each side to understand the interests of the other and to find solutions that maximize both. Occupational safety and health is frequently seen as an ideal subject for mutual gains bargaining, since both sides are interested in avoiding occupational accidents and disease.
In practice, these models of bargaining are not mutually exclusive and both are important. Skilled bargainers will always seek to understand their counterparts and search for areas where both sides can benefit from a wise agreement. However, it is unlikely that a party without power will accomplish its objectives. There will always remain areas where the parties perceive their interests to be different. Good faith negotiation works best when both sides fear the alternative.
Power is important even in negotiations over safety and health. An enterprise may be less interested in reducing the accident rate if it can externalize the cost of the accidents. If injured workers can be replaced easily and cheaply, without substantial compensation, management may be tempted to avoid expensive safety improvements. This is especially true in the case of occupational diseases with long latency periods, where cost of controls is paid when the controls are installed, while the benefits may not accrue for many years. As a result, a workers’ organization is more likely to succeed if workers have the power to stop production or to call a government inspector if the parties fail to negotiate a solution.
Legal Framework
ILO Conventions on freedom of association, on protection of the rights to organize and to engage in collective bargaining and the ILO Conventions and Recommendations on occupational safety and health recognize the role of workers’ organizations. While these instruments provide an international framework, workers’ rights can be assured only through national law and regulation.
Of course, the legal basis for collective bargaining, the level at which bargaining occurs and even the process of bargaining all vary by country. The legislation of most industrialized countries includes a system for regulating collective bargaining. Even within Europe, the degree of regulation can differ widely, from a minimal approach in Germany to a much more developed one in France. The legal effect of a collective agreement also varies. In most countries an agreement is legally enforceable; in the United Kingdom, however, agreements are seen as informal, to be applied by virtue of the parties’ good faith backed up by the threat of a work stoppage. It is expected that this variability within Europe will diminish as a result of greater European unification.
The level of bargaining also varies. The United States, Japan and most Latin American countries feature bargaining at the level of the individual enterprise, although unions often attempt to negotiate “pattern” agreements with all the major employers in a given sector. At the other extreme, Austria, Belgium and the Nordic countries tend to have highly centralized bargaining in which most workplaces are subject to a framework agreement negotiated between national federations representing unions and employers. Sectoral agreements covering particular industries or occupations are common in some countries such as Germany and France.
French-speaking African countries tend to follow the example of France and bargain by industry. Some English-speaking developing countries also bargain by industry. In others, multiple trade unions bargain on behalf of different groups of workers in a single enterprise.
The level of bargaining partially determines the coverage of collective agreements. In France and Germany, for example, collective agreements are usually extended to cover everyone coming within the scope of the occupation or industry to which the agreement applies. On the other hand, in the United States and other countries with enterprise-level bargaining, collective agreements cover only those workplaces where the union has been recognized as the bargaining agent.
An even more important factor in determining the coverage of collective bargaining is whether national law facilitates or impedes unionization and collective bargaining. For example, public sector employees are not permitted to bargain collectively in some countries. In others, public sector unions are growing rapidly. As a result of such factors, the percentage of workers covered by collective agreements varies from a high of almost 90 per cent in Germany and the Nordic countries to under 10 per cent in many developing countries.
The legal framework also affects how collective bargaining applies to occupational safety and health. For example, the United States Occupational Safety and Health Act gives workers’ organizations the right to information on dangerous chemicals and other hazards in the plant, the right to accompany a workplace inspector and a limited right to participate in legal cases brought by the Government against an employer for a violation of standards.
Many countries go further. Most industrialized countries require most enterprises to establish joint safety and health committees. The Canadian Province of Ontario requires that certified safety and health representatives be chosen by the workers in most workplaces and given a standard course of training at employer expense. The Swedish Work Environment Act requires the appointment of safety delegates by the local trade union organization. Swedish safety delegates have broad rights to information and consultation. Most important, they have the power to suspend dangerous work pending a review by the Swedish Labour Inspectorate.
These laws strengthen the collective bargaining process on issues of safety and health. Mandatory joint safety committees provide a routine mechanism for negotiation. Training gives union representatives the knowledge they need to participate effectively. The right to suspend dangerous work helps keep both parties focused on eliminating the source of danger.
Contract and Labour Law Enforcement
Of course, labour agreements are of limited value without an enforcement mechanism. A strike is one method by which a workers’ organization can respond to an alleged violation by the employer; conversely, the employer can engage in a lockout, denying employment to members of the workers’ organization until the dispute is resolved. However, most labour agreements in developed countries rely on less disruptive methods of enforcement. In fact, many labour agreements bar strikes or lockouts during the life of the agreement (no-strike clauses or peace obligations). Some restrict them to a limited set of circumstances; for example, the contracts negotiated in the United States between the United Automobile Workers and the major auto companies allow strikes over unsafe working conditions, but not over wages or benefits during the term of the agreement.
A common enforcement mechanism in developed countries is a system of arbitration, in which disputes are referred to an impartial referee chosen jointly by the employer and the workers’ organization. In some cases, disputes may be resolved by the judicial system, either in the regular courts or in special labour courts or boards. In the United States, for example, a dispute over contract interpretation usually will go to arbitration. However, if the losing side refuses to abide by the arbitrator’s decision, the winning side can seek to have the decision enforced by the courts. A quasi-judicial body in the United States, the National Labor Relations Board, hears complaints concerning unfair labour practices, such as the failure of one side to bargain in good faith. In many other countries, labour courts fulfil this role.
Collective Bargaining Today
Collective bargaining is a dynamic process in all industrial relations systems where it is practised. The situation in Europe is changing rapidly. The Nordic countries are characterized by comprehensive working environment agreements negotiated on a national basis, integrated with highly developed national laws. Unionization is very high; labour agreements and the law establish joint committees and worker safety representatives in most workplaces. Collective bargaining mechanisms for safety and health and unionization rates, are less extensive in other European countries. Member States of the European Union face the task of harmonizing national laws under the Single European Act and the Framework Directive on safety and health (Hecker 1993). European trade unions are seeking to coordinate their efforts, primarily through the European Trade Union Confederation. There are some signs that national bargaining ultimately will be replaced or, more likely, supplemented by agreements at the European level, although employer resistance to this is high. The first example of such Europe-wide bargaining was over parental leave. In the area of safety and health, the GMB union in the United Kingdom has proposed an ambitious Europe-wide Work Environment Fund, based on similar funds in the Nordic Countries.
Central and Eastern Europe and the countries of the former Soviet Union, are changing even more rapidly. Safety and health regulations were extensive under Communism, but rarely enforced. Trade unions existed, but only under the control of the Communist Party. At the enterprise level, unions functioned as workplace labour relations departments, under the control of management, without any sort of bipartite negotiation. Newly formed independent unions helped precipitate the fall of Communism; sometimes their issues concerned working conditions or such basic sanitary measures as the provision of soap in coal mine wash houses. Today, the old unions are gone or are struggling to reconstitute themselves. The new independent unions are attempting to change from political organizations confronting the government, to collective bargaining organizations representing their members in the workplace. Bad and often deteriorating working conditions will continue to be an important issue.
The Japanese system of worker participation, continuous improvement and extensive training effectively promotes safety and health, but only where safety and health are explicit goals of the enterprise. Most Japanese unions exist only at the enterprise level; negotiations take place through a system of continuous joint consultation (Inohara 1990). Joint safety and health committees are established by the Labour Safety and Sanitation Law of 1972, as amended.
Labour agreements in the United States contain relatively extensive safety and health articles for two reasons. First, safety and health is an important issue for North American unions, as it is for workers’ organizations in all industrialized countries. However, safety and health laws in the United States lack many of the provisions found in the laws of other countries, forcing unions to bargain for rights and protections guaranteed elsewhere by law. For example, joint union-management safety and health committees are generally recognized as an important mechanism for day-to-day cooperation and negotiation between workers and employers. However, there is no requirement in the US Occupational Safety and Health Act for such committees. As a result, unions must bargain for them. And since the rate of unionization is low in the United States, most workers do not have access to joint committees. Many unions in the United States also have negotiated contract clauses barring retaliation against workers who refuse to work under abnormally hazardous conditions, since legal protections are weak and uncertain.
Canadian law varies from province to province, although it is generally stronger than in the United States. For example, unions in Canada do not need to negotiate for the existence of safety and health committees, although they may negotiate for larger ones, with more powers. Safety and health committees are also required under Mexican law.
The situation in developing countries is mixed. Workers’ organizations in developing countries like India, Brazil and Zimbabwe place a growing emphasis on safety and health through agitation for improved laws and through collective bargaining. For example, the Zimbabwe Congress of Trade Unions has fought to extend the national labour code, including its safety and health provisions, to the country’s export processing zones (see box). But trade unions are severely restricted or suppressed in many parts of the world and the vast majority of workers in developing countries do not belong to any workers’ organization or benefit from collective bargaining.
Trade Union Action in Zimbabwe
The Zimbabwe Congress of Trade Unions (ZCTU), has launched a National Campaign for the Rights of Injured Workers, which combines national level and shop floor action to seek amended laws and improved collective agreements.
Zimbabwean law has since 1990 provided for safety committees, health and safety representatives and health and safety supervisors at all workplaces. The Zimbabwe Congress of Trade Unions has insisted that worker health and safety representatives must be elected by workers. Its National Campaign covers these demands:
- Safe work. This involves identification of workplace hazards through surveys and accident investigation, as well as negotiating to improve conditions.
- Worker and union participation in workers’ health issues. This includes the rights of workers to elect their own health and safety representatives, to obtain information such as safety data sheets and factory inspector’s reports, and jointly to investigate and report accidents and injuries (as in Sweden).
- Adequate compensation and care for injured workers. This extends to a review of compensation levels.
- Job security for injured workers. Trade union representatives have negotiated a right to return to work and be assisted in placement.
For the ZCTU, a key step in accident prevention has been its training programme to increase effective worker participation in health and safety at the shop floor level. The training for worker representatives has been in carrying out walk-through surveys at workplaces and in reporting on any hazards identified - first to workers and then to management for discussion. Once in operation, union health and safety representatives have been involved in inspections and in ensuring that injuries are reported. This is particularly important in sectors that would otherwise be inaccessible, such as agriculture.
The ZCTU has also demanded an increase in penalties that may be imposed on employers found to have infringed health and safety laws.
by Chapter Editor (excerpted from Loewenson 1992).
The Future of Collective Bargaining
Workers’ organizations and collective bargaining face difficult challenges in the years ahead. Virtually all collective bargaining takes place at the enterprise, industry or national level. In contrast, the economy is increasingly global. Apart from Europe, however, workers’ organizations have yet to develop effective mechanisms for bargaining across national boundaries. Such bargaining is a top priority for international labour federations. It can best be promoted through stronger and more effective international union structures, strong social clauses in world trade agreements and appropriate international instruments, such as those of the International Labour Organization. For example, the ILO Tripartite Declaration on Multinational Enterprises refers specifically to both collective bargaining and occupational safety and health. Many unions are developing direct links with their counterparts in other countries in order to coordinate their bargaining and provide mutual assistance. One example is the relationship between mining unions in the United States and Colombia (Zinn 1995).
Rapid changes in technology and work organization can overwhelm existing labour agreements. Workers’ organizations are attempting to develop a form of continuous bargaining to respond to workplace change. Workers’ organizations have long recognized the links between the working environment and the external environment. Some unions have begun to address issues of the external environment in their collective bargaining agreements and in their membership education programmes. An example is the Model Environment Agreement proposed by the Manufacturing-Science-Finance (MSF) Union in the United Kingdom.
A fundamental purpose of trade unions is to take human rights and human welfare out of economic competition – to prevent an enterprise or a nation from seeking a competitive advantage by impoverishing its workers and forcing them to work under dangerous conditions. Collective bargaining is vital to safety and health. However, workers’ organizations are essential to collective bargaining and workers’ organizations are under attack in many developed and developing countries. The survival and growth of workers’ organizations will largely determine whether most workers enjoy rising living standards and improved working conditions, or face a deteriorating cycle of poverty, injury and disease.