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Switching sides

Peter Crush

As a former trade union agitator and famous for his outspoken opinions, Brendan Barber wasn’t the first name to spring to our minds as the new chair of the Advisory Conciliation and Arbitration Service (ACAS). Peter Crush meets him to talk peace, pensions and preventing strikes

On the tenth floor of Euston Tower, NW1, you can literally hear a pin-drop. Gone is the hubbub from London's Euston Road below, and in its place is an oasis of tranquillity, a place of calm, and soft whispers. Its no surprise at all that this is the home of ACAS the Advisory Conciliation and Arbitration Service (ACAS). Its the place where at-odds bosses and employees, trades unionists and officials come to meet, to reflect and to make peace. If its always done in surroundings like this, its hard to imagine voices being even slightly raised.

Maybe that's' the aim though. For not since the body was first formed in 1896 has the importance of ACAS been so great. In May this year the much-anticipated Early Conciliation Rules of Procedure regulations finally came into force rules that require all at-work disputes to go through ACAS first. The aim is to iron-out misunderstandings early, to see if settlements can be brokered before things escalate to full-scale tribunals. It follows legislation introduced in 2013, which for the fist time forced staff wishing to bring a tribunal against their employer to pay an upfront fee (of up to 1,200) first.

Both changes have been introduced to protect employers from what government saw as the rise in vexatious 'try-it-on' claimers. Figures showed that only 10% of tribunals ever rule in employees favour, but ease of bringing them meant firms were facing an average of 8,500 in legal fees alone to defend each one. While critics have claimed poorer employees will be priced out of justice, the subtext around both employment law changes is clear that its better for staff and bosses to actually talk; that constructive intervention is better for all, to nip simple disagreement in the bud before things get irretrievable nasty.

An odd fit?

That's the theory, and as just-released figures show, its already caused an 80% reduction in sex-discrimination claims. But if conciliation is the new employee engagement, people might be scratching their heads when they look at who the latest chair of ACAS is none other than Brendan Barber, former secretary general (until 2013) of the TUC a union that has walked away from ACAS on numerous occasions, preferring to bring employees to their knees through strike action and militancy. In 2011, at the TUC, Barber was instrumental in planning the UKs largest protest rally since the anti-Iraq one in 2003, including hiring 578 buses to move 250,000 public sector workers to London to march about pay cuts and pension reforms. Later that year, strikes closed 60% of schools and 6,000 hospital operations were cancelled as up to 2 million public sector workers went on strike. Here, talking did no good at all. Talks were things that broke down. Striking was the most effective way to make a point. So has Barber gone soft; has the poacher become gamekeeper, or should leaders embrace partnership rather than protests?

"ACAS is an organisation I knew very well I had many dealings with it," says an avuncular Barber, who joined in the New Year. He is aware comparisons do, and will continue to get drawn about how 40-years of unionism seemingly jars with the approach of ACAS. After all it was Barber himself, as TUC leader, who in 2012 branded tribunal fees as a profoundly regressive step that gives a green light for unscrupulous employers to discriminate at will. Why shouldn't aggrieved employees get their day in court? Why should they bow down to dialogue when there are wrongs at play?

"I don't disagree that many people were surprised at the sheer level of the fees," accepts Barber. "And yes the TUC was, and is still worried it will deny access to justice." But, he adds, by the same token, some complaints can be quite small in the grand scale of things like late wages or unpaid holiday. What were saying is that does it really make sense to take an employer though a legal process, if the matter can be probably be dealt with by bringing people together? He says: "We're not adjudicators; we can't throw cases out, and if people are still determined to go to court, they can. But what we want to say is that we tried, and that if you still need us, we'll still be here."

Taking a different tone

Its certainly a different tone from the man who only two years ago promised civil disobedience, warned employers to prepare for swathes of marauding staff, and declared to the government that their phony war [over pay and conditions for public sector workers] was over.

"Ah, the notion the TUC was always combative that this is was the only way to change employment conditions; it still mystifies me," he says, when asked if he now concedes old-style agitation no longer works. The cut and thrust of strike action always made good headlines but the real story is much different, he says." I like to think that at the TUC, I was actually someone employers thought they could do business with. There were many disputes where employers actually knocked on our door and said, quietly, could we help them? Not many really know about this side. Even at our most militant moments, we were still trying to keep doors open between employers and ministers. More often, the TUC was actually playing a conciliatory role."

Its a robust defence to those who think he has sold out, or at least dropped his old union principles. But actually, Barbers formal relationship with ACAS is not entirely new. He's already been a council member, which overlapped when he was head of the TUC (from 1995 to 2004). It didn't seem to do him any harm then. "Its entirely my experience at the TUC that makes me crucial to this role," he says. "I still have relationships with all the main union bosses, as well as many employers. These will be invaluable to call on as ACAS moves forward. People may think I'm a leftie, but actually I understand how the modern industrial relations landscape works."

ACAS's new role is, he argues, all about putting the onus on discovering what problems are. He says: "The labour market is changing really rapidly. Its quite clear employers and employees need guidance on things like zero hours contracts; the fact work is getting more part-time; and shifting from the office to the home with recent changes to flexible working." With all these pressures, he says the workplace is, once again, much more prone to conflict, and so its more important than ever that dialogue not disagreement is what drives relationships.

The question employers need to be asking is whether they have the right working relations to create economic success, he says, broadening the debate out to a wider business perspective. "As a nation we still have poor productivity. The way work gets organised is the only way well change this. ACASs ambition is to increase our impact on dispute prevention by getting best practice into workplaces in the first place."

Flexible working under fire

ACAS has, over the summer, already produced guidance for employers on areas like the right staff have to request flexible working a change that some groups (such as Working Families) claim will actually create more disagreements, as some staff are likely to be granted flexibility, while others (doing the same job) wont if they need to cover those who asked for flexibility first. Says Barber: "We still need to get the message out to leaders that regulation only gives staff the right to request. Flexibility itself a not a right; businesses can still say no to it, and I suspect tricky decisions are having to be made about how to accommodate it."

On the subject of the broader picture, ACAS clearly wasn't able to prevent more strike action in July this year, where a fifth of schools closed and tens of thousands of local government officers also refused to go to work. And the biggest irony in this, perhaps, is that the coordination for these strikes was partly done by Brendan's own successor at the TUC Frances O'Grady. Having once been allies to a common cause, the cynic might suggest Barber and O'Grady are now head-to-head, one still wedded to creating disruption, the other wanting to avoid it.

"Ha, I see your point," he replies. "The truth is, if Frances called her members to strike, I wouldn't think of it in such antagonistic terms. There may well be more disputes down the track, and the TUC will support their members, but that doesn't mean we cant still work together. ACAS still has an active role to play," he says.

Successful succession planning

As handing over the reigns go, Barbers support for O'Grady was actually noted as being a textbook example of excellent succession planning. He positioned her as his successor over many years, giving her and the organisation time to get used to each other. I'm very confident I've left the leadership of the TUC in very capable hands," he says, clearly anticipating that the days of heated exchanges between unions, the government and employers are not entirely consigned to history. So perhaps the ultimate question is this: whether he feels hell achieve more employment relations success as the leader of ACAS than he ever did in all his years bashing it, employers and government in his union days.

"Oh, you're being devious now!" retorts Barber playfully. He thinks for a moment to consider his reply. "I think they're very different roles," he says finally. "The key function of the TUC is to give employees a voice. Its hugely important that workers still have a facility to fight unfairness in the workplace. Unfairness at work can blight peoples experience of work, and that's what the TUC was, and is still about."

Its in this (albeit light-hearted) exchange that sceptics will see that union blood still flows strongly in Barber, and that any hint unions are a 19th century concept desperately clinging to principles that cant cope well with progress is far from his mind. Yes, striking still has part to play its fundamental to a free society, he says perhaps referring obliquely to David Cameron's recent pledge to examine the thresholds public sector bodies will need to reach before they are able to go on strike (the NUT went on strike in 2012 with only a 27% turnout). But he tempers it slightly, adding: "Even when I was at the TUC, I always resisted those who measured union success by the number of strikes we had. The success of the unions has been much more about the agreements they have brokered, not the strikes they occasionally supported."

And of course, while government may want more employer-employee conciliation, at the end of the day, even Barber himself accepts that for this to happen, both parties have to actually want it: Conciliation has to be a voluntary thing both parties need to want to talk, he says. Until this condition is met, progress cant easily to be made. And, ultimately he adds, employers and employees have to take some proactive action of their own.

Businesses can't expect wrongs to be made right just by working with ACAS, he concedes. Good workplaces need to get on with good practice themselves. Its far better there are workplaces that don't give rise to disputes in the first place. "If the TUC stands for anything its really is about promoting positive values, being respectful and making a contribution to policy debates," he says.

Its good to talk

Its crystal clear Barber relishes from the other side of the table perhaps the latest contribution he is making to improving workplaces and providing better employer-to-employee relations. And perhaps he agrees friendlier dialogue is the way to make the biggest difference to more workplaces.

But, his union colleagues know that the fight is not yet over when it comes to staff having to pay a fee to lodge a tribunal. Earlier this year Unison lost a High Court challenge to have such upfront costs declared illegal. But what it did win was a commitment from judges that they would look at it again if it were proved that the predicted fall in claims had in fact happened. That there has been a huge drop in tribunals is evidence claims the union, that chequebook justice is at play, rather than employers suddenly becoming great employers. If the High Court does reverse its original decision, employees could soon shun having a cosy chat with their manager and return to fighting their disputes in the courtroom. That would be a blow to ACASs new cause. But one way or another, one suspects Barber will no longer be advocating huge employer-employee stand-offs. Oh, and he wants to make one thing clear too: members certainly made things difficult for employees, but I'm not sure the TUC ever brought the country down he says wanting to correct a popular perception of unionism. He adds: "No, not that; I think it was more like occasionally holding it to ransom!" Said with a smile and a very knowing wink he's certainly good at this friendly-talking stuff now.

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