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Employee Relations Collective and individual conflicts in five European countries

Steve Jefferys,

Article information: To cite this document: Steve Jefferys, (2011) "Collective and individual conflicts in five European countries", Employee Relations, Vol. 33 Issue: 6, pp.670-687, https://doi.org/10.1108/01425451111174139 Permanent link to this document:

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https://doi.org/10.1108/01425451111174139

Collective and individual conflicts in five European countries

Steve Jefferys Working Lives Research Institute, London Metropolitan University,

London, UK

Abstract Purpose – The purpose of this paper is to explore comparatively the relationship between the employment relations contexts and trends in collective conflicts based at the workplace and conflicts handled individually in employment tribunals outside the workplace.

Design/methodology/approach – The paper employs an international comparative approach comparing conflict data and employment relations models in Britain, France, Italy, Portugal and Poland.

Findings – Collective disputes are at lower levels in the 2000s than in earlier periods in each of the countries studied, while accessing employment courts appears to be as or more frequent than in the past. In France and Italy, conflict appears to be more systematically legitimated in defence of citizenship rights than elsewhere. Both individual and collective conflicts are more common than in Poland and Portugal where labour regulation and employee rights appear either less effectively enforced or, as in Britain, only weakly embedded.

Practical implications – Unions in France and Italy appear more successful in focusing media attention on their collective conflicts, and in securing somewhat more positive state intervention than in the other countries, while at the same time supporting individuals taking cases to the courts. In Poland and Portugal, there are very high levels of individual employment complaints taken to the courts, and little collective strike action, while in Britain unions find it difficult to mobilise action at both collective and individual levels.

Social implications – Unions will have to become more aware of the need to win public legitimacy for resistance if they are to continue to be able to defend workers’ interests both collectively and individually.

Originality/value – The paper considers whether different national institutional frameworks are presenting similar shifts from collective-based to individual-based resistance in workplace disputes.

Keywords Conflicts, Strikes, Employment courts, Institutional frameworks, State intervention, Labour regulation, Industrial relations, Britain, France, Italy, Portugal, Poland

Paper type Research paper

Introduction Employment conflicts over restructuring and associated collective redundancies are affecting many European countries as privatisation and globalisation have reduced the relative importance of the extractive, metal working and manufacturing industries that dominated their economies and their labour movements through most of the twentieth century. The impact of this process on people’s working lives and communities has been massive, and unsurprisingly, it has been resisted. The research presented here considers whether – and if so, why – different national institutional frameworks are presenting similar shifts from collective-based to individual-based resistance[1]. The article discusses this issue through a comparative focus upon European experiences in quite different industrial relations systems, namely, those of the EU member states of France, Italy, Poland, Portugal and Britain. These countries were selected for this research since they include two countries with relatively recent experiences of major

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Employee Relations Vol. 33 No. 6, 2011 pp. 670-687 q Emerald Group Publishing Limited 0142-5455 DOI 10.1108/01425451111174139

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systemic change from quite different kinds of state-controlled economic structures to different forms of neo-liberalism (Portugal and Poland), along with two countries identified with a “statist market economy” (France and Italy), and one country (Britain) identified with a “liberal market economy” (Visser et al., 2009).

The selected countries also have quite different employment relations arrangements. Britain has an industrial relations system rooted in voluntary agreements between workers’ unions and their employers where, until the reforms of the 1980s and 1990s, the law had very little to say about how industrial conflicts should be conducted. Under conditions of full employment and union confidence conflicts often went public quite quickly and were resolved through direct tests of strength between the local units of capital and labour. Over the last two decades a stronger framework of individual employment rights has been introduced, while collective forms of representation and influence have become much weaker. Hyman (2001) sees union ideology within Britain as largely shaped by the dual pressures of market and class. Three of the countries (France, Italy and Portugal) have industrial relations systems that are essentially built upon codified legal frameworks that prescribe more or less detailed procedures for the employer-employee interface, and assume a major role for the courts in monitoring and enforcing the law. Yet, the weight of these codes and the role of the state in their enforcement is, nonetheless, quite different. The French labour code has an almost continuous history dating back in conciliation to the early nineteenth century, although a full recognition of social partnership and collective employee rights effectively only appeared in the aftermath of May 1968. The Italian social partner employment framework dates back to the end of the Second World War and it too only took on real significance after the “hot autumn” of 1969. Hyman classifies Italian union ideologies as being framed by the competing influences of “societal integration” and class, and with some qualifications, this analysis may also be applied to France (Jefferys, 2003). The Portuguese social dialogue framework is even more recent, emerging only four or five years after the 1974 democratic revolution. It has had relatively little time to become embedded and to earn employer buy-in. Yet while Portugal also shares the French and Italian legacies of a strong radical (Communist or Socialist) workers’ political tradition, it has not had the time necessary to impose anything like the same hegemony of the concept of “societal integration”. Poland is also an “exception”, difficult to classify under existing typologies – Visser et al. (2009) simply list it as “transitional”. In the 1990s, Poland created a new legal employment relations framework based on several elements favouring trade unionism and social integration, but this impetus was overtaken by an economic and political context in which the newly-independent Polish state saw its role primarily in terms of supporting managerial prerogatives promoting the free market. The country also shares with Portugal an important agricultural sector.

The research methodology underpinning the study involved local experts in each of the five countries assembling existing data on recent trends in individual and collective conflicts. We confined ourselves primarily to the decade since 1995 since it was then that data for Poland first became available, and because our focus was on how conflict is presently manifesting itself – although a brief contrast is made with earlier periods to enable longer-term trends to be assessed. These data were then reviewed and contextualised in national workshops with academics, union officials, employment lawyers, government or arms-length agency officials involved in conciliation and

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mediation, and representatives of the employers. Representatives of each of the five national advisory working groups then met together to discuss what was, and what was not common between the different countries[2]. This article first considers the recent visible levels of collective conflict in the five countries as revealed through the available striker-day data and compares these with more historic data. It then considers the numbers of individual employment actions appearing in the courts. In its concluding section, the article discusses the inter-relationship of collective and individual conflicts to the employment relations ideologies that frame them.

Collective employment conflicts Collective or individual conflict over the terms of employee subordination is always present at work since employers cannot fix in advance all the precise requirements of any particular job. An employer contracts for labour power at a certain price, and then must negotiate or impose their actual requirements on the employee or group of employees. Once the initial terms of subordination are accepted, they are generally not challenged until external or internal changes occur, although conflicts do regularly occur over interpretations of requirements and over managerial behaviours. Conflicts may be visible to the outside world, or remain invisible to all but those directly involved. When they involve a strike (or more rarely a lock-out), the employer or a government official usually reports its start date and the numbers of workers involved to a government agency. The agency responsible for collecting the data will normally produce national data based on these reports and submit reports to the International Labour Organization (ILO) and Eurostat. If the conflicts lead to an individual (generally the employee) taking court action against their employer (most commonly after the employee has left or been dismissed), then in most countries the numbers of these “individual” cases concerning employment situations tend to be counted and reported separately within the country’s justice system.

What do the official data tell us about collective conflicts in the five countries? There are many criticisms of the strike data collection process that suggest there is quite widespread under-reporting (Lyddon, 2007). In France, a country that has seen a massive series of strikes in the 2000s – with huge levels of worker mobilisation in 2003, 2005 and 2010 – many of these strikes are not reported at all – either because they are considered not “local”, or because they take place in parts of the public sector like the education sector where strike data may be collected but are never or only irregularly reported on to the Labour Ministry statistics department which sends the data to the ILO and Eurostat (see also Contrepois, 2011). Indeed, in 2003 the French Ministry of Labour specifically excluded the transport sector, French electricity, the Post Office and France Télécom from all striker day statistics. Equally, as with Britain, a great deal depends on the vigilance with which government officials tasked with monitoring strike action in their areas through local newspapers or other media carry out this function, and faithfully record the start date and end date of a strike – a process which in turn depends on pressures of work and varying degrees of political interest (Béroud et al., 2008; Contrepois, 2010).

Official data are not necessarily very helpful, then, in comparing absolute conflict levels over time or between countries. However, if we can make the assumption that the criteria by which national data are chosen for input and reported to the ILO for each country only show little variations over shorter periods of time, it is possible to assume

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that the same sort of strike activity is being reported more or less consistently, and that the variations over time shown by the data actually reflect real variations in the visibility of conflict. The data may help to establish whether overall levels of conflict manifesting itself in strike action are stable, rising or falling in the recent past. From the three measures (numbers of strikes, numbers of workers involved and numbers of days lost) the rate of strike days lost per 1,000 employees is, arguably, the most artificial (created by multiplying the two other sets of data together, and then dividing the total by the numbers of employees in the country (or sector) and then multiplying the result up by 1,000. However, as a result of these arithmetic processes combining the numbers of strikes and the measure of workers involved, it is likely to produce results that are more effective for international comparative purposes. Lyddon (2007, p. 32) cites Edwards’ (1981, p. 286) view that despite its problems striker days per 1,000 employees is the best indicator for these purposes[3].

The most recent revised ILO statistics partially cover the 15-year period since 1994. They illustrate considerable variations between the experiences of the countries for which this admittedly only loosely comparable data exists. In Table I, they are ranked from the lowest average levels of reported strikes per 1,000 workers over this period (in Poland, 14 days per year) up to the highest average level (in France, 91, and Italy, 86 days per year). Britain and Portugal both averaged 24 days strike activity per 1,000 workers over this period. From 1994 to the start of the 2008 financial crisis these averages suggest the presence of three groups of countries – with very low, low, and high levels of reported days lost per 1,000 workers.

Figure 1, which illustrates this 15-year data series, suggests there is no discernible common trend at least up to 2004, and thereafter, the picture is of stability at a slightly lower level. Nor does the graphed data suggest any consistent harmonisation in the strike peaks between these EU candidate (Poland up to 2004) and member countries, with the possible exception of 2002. In that year, both Portugal and Britain recorded strike participation levels close to or slightly above their 15-year highs, while Italy experienced a genuine strike peak and French data, although not provided by the ILO because of the problems of the volume of general one day strike actions that took place that year in the French market sector nationalised companies, was also very high. Thus, with no clear synchronised pattern, we can tentatively conclude that the levels of visible collective conflict in these five countries do not appear to depend on any common external or cyclical driver, at least in this most recent 15-year period.

Yet examining detailed and longer-term data for the five countries does still suggest the presence of common trends. First, most of the collective conflicts remain concentrated in a relatively small number of economic sectors, and collective action in the 2000s appears to take place predominantly or increasingly by comparison with earlier experiences in the public services (particularly public transport, administration, education and healthcare). This argument is evidenced by a European Foundation study (Carley, 2008) of industrial conflicts in the mid-2000s whose results for these five countries are summarised in Table II.

The largely publicly-owned or subsidised transport and communications sector appears among the most consistently highly conflictual sectors in Poland, Portugal, Britain and in France, where the railways are a nationalised industry, and it is also among the regularly highly conflictual sectors in Italy. Public administration is also

Collective and individual conflicts

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Y ea r

C ou n tr y

19 94

19 95

19 96

19 97

19 98

19 99

20 00

20 01

20 02

20 03

20 04

20 05

20 06

20 07

20 08

P ol an d

58 6

8 3

4 11

8 0

0 1

1 0

0 2

28 P or tu g al

n /a

20 17

36 44

31 19

18 44

22 18

11 16

10 n /a

B ri ta in

12 18

55 10

11 10

19 20

51 19

34 6

28 38

28 It al y

n /a

65 13 3

81 39

61 58

66 30 5

12 2

43 55

33 53

n /a

F ra n ce

39 30 1

57 42

51 64

11 4

82 n /a

20 1

33 15 1

11 6

n /a

10 7

N o te : W h er e a fi g u re

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F ra n ce

in 20 02

th e n u m b er s of

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in th e p ri v at e se ct or

w er e v er y si m il ar

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(s u cc es sf u l) st ri k e ac ti on

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of th e n u m b er s of d ay s lo st p er 1, 00 0 w or k er s co u ld

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S o u rc e s : IL O , L ab ou r S ta ti st ic s D at ab as e, ex tr ac te d 9. 5. 11 ; B ea rd sm

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fo r P or tu g al

19 95 -1 99 6; an d fo r It al y in

19 95 ; D al -R é (2 00 8)

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20 01 -2 00 2; C ar le y (2 00 8)

fo r F ra n ce

20 03 -2 00 4

Table I. Striker days per 1,000 employees, 1994-2008

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consistently highly conflictual in Britain and Italy, as is education in Britain and healthcare in Poland, where education is also occasionally highly conflictual.

A second common trend between the five countries is identified when considering a longer term than the last 15 years. If comparisons are made between the most recent strike levels and those three decades earlier in France, Italy, Portugal and Britain, or with collective conflict levels two decades ago in Poland (immediately after the 1989 transition from a command economy), it is clear that all measures of recorded strike action have shown a significant decline. In Britain, for example, the average number of days lost per year in the late 1970s and early 1980s stood at around 7 million working days in official records, or 300 days per 1,000 employees. By the second half of the 1990s and early years of the twenty-first century, days lost to officially-recorded stoppages had fallen to around 0.5 million per annum or just 20 days per 1,000 employees and in 2005 there was a record low of just six strike days per 1,000 employees. In France, where strike waves of public sector and nationalised industry

Figure 1. Trends in striker days per

1,000 workers in five countries, 1994-2008

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workers remain very important, although far below the levels of 1968-1975, private sector strikes have fallen almost continuously for 30 years from the mid-1970s. From 1985 to 2000, there was an annual average of 1,519 market sector strikes, compared to 3,245 a year between 1969 and 1984 and 1,857 a year between 1952 and 1967. There were market sector strike peaks in the election year of 1995 and, associated with the introduction of the 35-hour week, for the three years after 1998 when there were just 353,000 private sector strike days. But by 2003, the downward trend had resumed and French private sector strikes involved just 15 days per 1,000 employees, although when the national picture is broadened to include the public sector and nationalised industries, with teacher and transport strikes in particular, there is still a comparatively high level of visible conflict.

In Poland, high levels of strikes in the 1970s were partly curbed by martial law in 1981, and then took off again in 1989 before declining sharply from the mid-1990s after striking was made illegal if the workers had not first gone to formal legal conciliation (Unterschütz, 2010). Over the five years 1990-1994, there were annual averages of 836,000 striker days involving 333,000 workers; but from 1997 to 2001, the five year averages fell to 57,000 days a year and to just 13,500 workers, and between 2001 and 2003 they averaged still less, 6,300 days a year involving just 1,500 workers. There was an upturn in strike numbers since unemployment fell considerably from 2005, but with the rising job losses flowing from the global finance crisis since 2008, it is likely that the official strike measures have fallen back again. In Portugal, after a high level of political strikes during its democratic transition in the mid-1970s and an average of 581 strikes a year between 1981 and 1985, there was a dramatic fall in industrial conflict in the second half of the 1980s down to just 181 recorded strikes in 1988. This trough was

Category

Country Consistently highly conflictual Regularly highly conflictual

Occasionally highly conflictual

France Industry/services/ construction

Italy Metalworking/public administration

Transport and communications/services and other social activities

Construction

Poland Healthcare/transport, warehouse management and communications

Industrial processing Clothing/mining/education/ real estate and services for companies/postal services

Portugal Transport and communications/ manufacturing

Financial services/real estates and services for companies

Britain Public administration/ education/transport and communications

Notes: Sector 1=sector present in top three sectors for conflicts in three or more years out of the five years, 2003-2007; Sector 2= sector present in top three for two years; Sector 3=sector present in top three in one year out of the five Source: Adapted from: Carley (2008, Annex 1)

Table II. Prominent strike sectors in five EU member states, 2003-2007

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followed by a rise in the early 1990s associated with failures in national-level negotiations and then a new decline from 1994 when 300 strikes were recorded to 156 in 2006 and 99 in 2007. Since then the numbers of workers involved has continued to fall.

In Italy, strike action also declined from very high levels of the 1970s and 1980s. Whereas in the five years, 1981-1985, strikes took an annual average of 78m hours, by 1996-2000 they averaged only 7.7m hours, ten times less. Strikes in Italy remained, however, above the levels of the four countries described above, with 1.8m striker days a year occurring between 2000 and 2004. Over the most recent period of 2003-2007, the 37 striker-days per thousand employees are only slightly above the EU average of 31, although since 2004 the Italian figures exclude political protest strikes of which there have been several significant ones over the past decade (not only against the government’s economic or social policies, but also protests against the Mafia and acts of terrorism). The year 2006, with 586 strikes reported, involving only just over 450,000 workers with a total of just below 500,000 working days lost through strike action, was among the lowest recorded for the whole of the post-war period.

One common explanation for the decline in visible collective strike levels in from the higher levels of 1970s and 1980s (or early 1990s in Poland) has been the weakening of union organisation. In France, average membership of 4.5ms in the 1970s fell to average 2.1 million through the 1990s, where it has more or less stabilised in the 2000s. Paradoxically, the 1980s and 1990s were years in which legislation strengthened the collective rights of French unions. In Britain, where a similar proportional decline took place, membership fell from a post-war peak of 13 million in 1979 to just 7 million by 1997, a level it has remained close to since. In Britain, the period witnessed the introduction of many laws making union recruitment and mobilisation in strikes and other forms of industrial action much more difficult and membership was just 28 per cent of all employees in 2006.

In Italy, the numbers of union members of the three major confederations in work fell from 6.2 million in 1986 to 5.7 million in 1999. In Portugal, membership fell dramatically in the 1980s but remained at around 1.1 million over the 1990s, although this includes retired workers, while density declined somewhat. Finally, in the much more exceptional circumstances of Poland, where one of the two major unions, Solidarnosc, played a leading role in triggering the major transition processes of 1989-1991 and for a short period became a national institution both in and out of government in the 1990s, union membership decline has been exceptionally dramatic. Today, while still the largest union, it counts only just over four per cent of employees as members compared with estimates nearly ten times greater at its height.

This common downward trend in union membership reflected a changing balance of forces in favour of the employer. Industrial restructuring, privatisations, combinations of higher levels of unemployment, smaller workplace sizes and more sophisticated human resource management techniques, and the shift towards the service sector in which – outside the public sector - there were generally much weaker traditions of union organisation, all played a part in this trend decline. Yet accompanying this decline in the strength of collective organisation, individuals increasingly accessed employment courts to voice their grievances in conflicts with their employers.

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Individual employment conflicts The second area in which employment conflicts become visible outside the workplace is when individual claims are taken either to special employment law courts or to the employment specialist services of the regular justice system, or in some countries, to both. These courts provide a pressure valve available to convey explosions of anger about unfairness within work to a “neutral” site outside the workplace. In all the five countries researched here, this pressure valve operated through the parts of the national legal court system that specialise in employment cases. Besides allowing expressions of employee voice to be heard outside the workplace, these employment courts reach decisions that tend to reinforce country norms of good employment practice. Where the employment courts do find that an employer has violated a country’s employment rules, regulations and practices, they will award (usually quite limited) damages to the claimant. But only exceptionally will they require the employer to take the worker back, or keep an employee who has raised a grievance.

In Britain as the areas of protected employment rights increased and as union capacity to resolve conflicts at workplace level in the employees’ interests weakened, there was very considerable growth in the numbers of cases being taken. A dedicated tribunal system was first established in 1964 to deal with employment issues separately from the civil courts. The numbers of tribunal applications went up from just over 40,000 in 1990 to 70,000 in 1993 and then up again to average over 110,000 a year through the 2000s, when many of the applications were multiple ones covering many employees of the same employer (Dix et al., 2009). The long-term trend in applications to employment tribunals is shown in Figure 2.

In France, where a separate employment tribunal system dates back to the early nineteenth century, and where most sector collective bargaining agreements in the post-Second World War period were extended by the government and given the force of law, the areas of substantive and procedural employment rights that could be taken

Figure 2. Employment Tribunal applications registered in Britain, 1972-2006

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to court were already substantial (Jefferys, 2003). The number of claims being made was already 194,000 in 1990 and this number then rose dramatically to 224,000 in 1993. For the next ten years the numbers remained stable, but then started to decline after 2003, averaging 198,000 in 2007-2008 (Serverin, 2009; Contrepois, 2010), as shown in Figure 3.

In Portugal, unlike the separate tribunals that exist in both Britain and France, labour courts are fully integrated into the legal system. The numbers of disputes they dealt with rose to a peak in 2003, before falling after that date. The courts cover claims on health and safety issues as well as (primarily) non-payment of salary and other grievances. As shown in Figure 4 the data for 2006-2007 suggest the numbers of cases is still over 60,000 – just above the levels of the 1990s.

In Poland, where employment cases are also dealt within the central legal system, the district courts (that deal with employment cases in the first instance) saw an increase from 191,435 in 1999 to 298,040 in 2003 in the number of applications employment cases tried. However, with the recovery of the Polish economy at that point, Unterschütz (2010) showed the numbers then slipped back to 257,130 in 2005, a level still above that of the 1990s. Over the ten years from 1995, over 80 per cent of the cases before the district courts concerned underpayment or non-payment of salaries, and while there was an annual average of 32,600 cases brought concerning termination of contract, only 4.4 per cent of these found that the employee had not committed a fault. Figure 5 graphs the numbers of cases concluded in selected years from 1995 to 2005.

In Italy, employment courts are also fully integrated into the civil court system, and there is a legal requirement for individuals to undergo conciliation before suing their (often, former) employer. As elsewhere, the numbers of cases on employment issues was historically at very high levels in the early 2000s, but then fell somewhat in the second half of that decade, as shown by the partial data graphed in Figure 6.

We can, thus, see that recourse to the courts as a result of individual employment conflicts is widespread in all the five countries researched and varies over time. There

Figure 3. French Employment

Tribunal applications and injunctions, 2000-2008

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are several reasons for these variations: increases can be explained by the possibility that over time the courts have become more or less accessible to ordinary workers, or because as unions have become less capable of resolving problems locally, they may have become more encouraging of their members’ claims in this area; increases may also flow from the multiplication in several countries (particularly in Britain) of the number of employment rights issues on which claims can be made to the courts[4]. Decreases in individuals taking legal action against their employers can be explained by the growing awareness of the length of the process of claiming, the rising potential

Figure 4. Individual employment cases in Portugal, 1992-2007

Figure 5. Polish Employment Court case outcomes, 1995-2005

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costs of requiring legal representation, and the reality that the process is everywhere very long and drawn-out. In some countries legal amendments have also made successful outcomes less likely.

Although each of the five countries researched witnessed rises in the 1990s in the levels of claims being pursued, and despite the introduction of EU directives providing the right not to be discriminated against in 2000, the evidence since then is that accessing employment tribunals appears to have reached a plateau as a proportion of the growing workforces. Table III uses the data provided above to compare the numbers of applications (France and Britain), of cases (Portugal and Italy) and of case outcomes (in Poland) per 1,000 employees for two years, 2000-2001 and 2005-2006 in four countries, and for just 2005 in Poland.

There is a slight fall in the averages from the 2000-2001 to 2005-2006. In both periods, however, the numbers of outcomes resolved or cases heard by the courts are significantly higher in the two countries that have made the most recent transitions towards a “free” market economy. Poland and Portugal are also the countries where unions play a more limited role in shaping workplace regulation and in articulating employee voice and where as we have seen above there are comparatively low levels of

Figure 6. Italian Employment Court

cases or compulsory conciliations initiated,

1999-2007

2000-2001 2005-2006

Polish outcomes 15.5 15.5 Portuguese cases 16.4 15.9 French applications 9.6 8.8 Italian cases or conciliations 9.2 7.7 UK applications 5.0 4.9

Sources: Case data as for Figures 2-6; employment data from EU KLEMS Database (November 2009)

Table III. Employment Court actions per 1,000

employees, 2000-2001 and 2005-2006 in five

European countries

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collective conflict. Average firm size is low and very basic health and safety and wages issues are often dealt with in the courts in the absence of any workplace representation. In France and Italy, where individual employment rights have historically been codified in law, the recourse to employment courts appears to be much stronger than in Britain. In Britain, the significance of individual employment rights grew very considerably in the 1990s but accessing employment tribunals remained relatively complex and was more often undertaken when an employee had left a firm than as a means of resolving grievances while still at work.

Nonetheless, in all five countries the levels of grievance illustrated by the numbers taking action to the courts are clearly high – particularly when the procedural difficulties of taking grievances, the risks of losing and the often lengthy period of time taken to get a result are taken into account. Italian employment court processes were overall the longest, with considerable variations in the efficiency of employment “justice” between north and south. In northern Italy, the average time taken to get to the initial court hearing is 12 months, while in southern Italy it is 31 months. Other disincentives to using court remedies are the low levels of reinstatement in those cases where workers were dismissed, and the low levels of fines that often fail to deter employers from repeating the same illegal employment acts.

However, particularly in Britain, but also in France, Italy and Poland there is also evidence in the last decade of collective conflicts being made visible through employment courts, with the instigation or union coordination of joint, multiple individual claims. To understand why the recourse to the employment courts should be a more significant feature of visible employment conflict in the early twenty-first century than it was in the 1970s and 1980s, we need to consider the nature of such conflicts, and how they may change form in response to the experience of new power balances within the workplace as well as the role of employment relations institutions.

Employment conflicts in context What is the overall picture of visible employment conflict in the five countries? Figure 7 presents the averages for the four years, 2000-2001 and 2005-2006, across both the data on striker days and employment court actions. The actual numbers per 1,000 workers are in italics for employment court actions and in bold for striker days, and for the four years averaged here they are mapped into four different quadrants.

What this juxtaposition of the two sets of data presented in the two opening sections of this article suggests is that there are two countries (France and Italy) where employment conflict is systematically visible both at the collective and the individual level; two countries (Portugal and Poland) where it is visible largely only in individual court actions; and one country, Britain, where employment conflict is nearly invisible. The differences reflect the different ways in which national institutional frameworks interpret and perceive employment conflict. In France and Italy, conflict is legitimated largely as occurring in defence of basic citizenship rights and of the rules and regulations that flow from them. In Portugal and Poland, in contrast, citizen rights are less embedded. Collective conflict is presented as generally illegitimate, as challenging property rights, with conflict largely only tolerated when it comes to claiming underpaid wages or compensating for industrial injuries (other forms of property). In Britain, too, since the defeat of the miners’ strike of 1984-1985 collective conflict is also seen as largely illegitimate while individual rights have only recently been extended

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under the impetus of EU directives. These are, however, often weak and unfamiliar and, in any case, are contested by many employers, and access to them usually only becomes an option after an individual’s employment has terminated. Hence, only a low level of individual grievances get voiced through the tribunals – although the trade unions have made use of multiple individual grievances in the 2000s, in particular to ensure the back payment of wages in equal pay cases.

The discussion of visible employment conflict in these five countries also needs to be framed by the different degree of state interest in employment relations, and, hence, by the kind of intervention it is likely to undertake and the kinds of visibility it will give in relation to collective and individual conflicts. The state’s wider interest in employment regulations in European business and industrial systems was analysed by Marginson and Sisson (2006, pp. 43-6) as being capable of being viewed along three transversal themes: first, in terms of the degree of direct influence the state has over wage bargaining; second, in terms of the status of collective agreements, meaning both the strength of any explicit or implicit “peace obligation” and the presence or absence of extension arrangements; and third, in relation to the nature (whether based on trade unions or employees) and legal basis for employee workplace representation.

Figure 8 attempts to capture the ideological outcomes of state intervention in a two-dimensional model that seeks to present the extent to which labour legislation in the five countries has become embedded as a body of rights or “norms” to which workers and unions ordinarily make reference in relation to their employment conditions. The model’s vertical axis describes the strength of embedded legitimacy of employment rights, and the degree of protection afforded to workers. It attempts to capture the extent to which labour is socially integrated (in Hyman’s (2001) sense) within the country’s norms of employment relations behaviours. The degree of embeddedness may be stronger or weaker, depending on the length of time since the body of legislation has been enacted, its scope and the extent of its visibility. The argument is that the longer the experience of stronger collective and individual rights through embedded labour regulation, the greater the sense of grievance when these rights are ignored. On this vertical embedded rights axis, France is scored more

Figure 7. Striker days and

employment court actions in five countries, averages

for 2000-2001 and 2005-2006 per 1,000

employees

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strongly in terms of the legitimacy of its labour code (in the eyes of the state, the employers and the unions), followed by Italy (with collective agreements that also carry the force of law), and then, weakly by Britain (having only transposed and largely implemented EU individual employment rights, while no longer enabling real collective rights), and by Portugal and even more weakly by Poland (where implementation is only partial).

The horizontal axis tries to capture the extent to which the state has created institutions that allocate workers and unions a clear space and processes through which to act in the enforcement of labour regulations. This dimension seeks to describe the extent to which the national state exercises control over employment relations and employment law is enforced through effective state machinery. A country’s degree of centralisation on this dimension can be considered as greater or lesser. The lower the level of state capacity to enforce employment rights, the less likely it is that workers will demand state intervention when those rights are ignored. On the horizontal access we show France as having the most centralised capacity to act followed by Britain[5]. Italy, Portugal and Poland, are scored as having weaker forms of direct state intervention over employment relations.

Comparing this model with Figure 7 allows for three tentative conclusions. First, there appears to be a relationship between the extent of embeddedness of labour codes in employment practice and the readiness of workers to mobilise both collectively and individually. France and Italy both have stronger traditions of labour regulation than in the three other countries, and these are the two countries that recorded both high levels of collective action and significant levels of individual court action. In these two countries, there remains a significant inter-play between strikes and court actions. Often there is the use of both collective and court actions to create the basis for a successful mobilisation. With the sense that “right” is on their side, the unions can and do mobilise effectively in both these two arenas, but also in relation to the media. Increasingly a prime objective in these conflicts is to secure “public” support to put pressure on the employer to make concessions – and this usually involves accessing an already present “rights” discourse. A second conclusion is that the countries with more weakly embedded labour regulation and a weaker presence (or tradition) of central state institutions of industrial relations also appear to have higher levels of individual recourse to the justice system. In Portugal and Poland, neither unions nor

Figure 8. A model of labour regulation and state centralisation in five European countries

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the state can guarantee that employers systematically and automatically remunerate employees properly. Workers are thus forced to access local civil courts in large numbers to secure the most basic justice. This is not about a tactical choice being made between collective or individual mobilisation. Individual court action is often the only realistic way of resolving an employment conflict where management appears to have nearly complete control within the workplace. Particularly in Poland, the use of the justice system reflects the absence of any possible alternative. Third, where there is both weakly embedded labour regulation and a strong institutional state capacity to implement and police a one-sided balance of forces, there appear both low levels of visible collective and individual action. Neither of these responses appears fully legitimate within the current British context – especially as the state uses its institutionalised powers to limit opposition, both collective and individual. This situation is increasingly forcing Britain unions too, to consider externalising strategies aimed at influencing public opinion rather than merely focusing on trying to mobilise their internal members[6].

What then can be concluded about the contemporary manifestations of resistance in these very different countries? Despite a clear common longer-term decline in visible and measurable strikes, in all the quite different industrial relations systems of France, Italy, Poland, Portugal and Britain employment conflicts persist in both visible and invisible forms. Most resistance has always been “invisible”: under-counted when strikes last just 15 minutes, or when absenteeism suddenly increases, or when workers quit without taking their employer to court. Yet the numbers of former employees who apply to the courts to seek redress for what they consider the poor treatment they have received from their employer are at or close to historically high levels. The expert and practitioner exchanges held to discuss this evidence focused on three main points. First, on how the terrain of conflict is changing. The development of globalisation and the financialisation of much of the world’s economy have meant that a larger proportion of “national” capital has become increasingly remote from its “nationally-based” employees. Not only are transnational companies more present than before, but many more “national” companies are now effectively owned by shareholders based in other parts of the EU or elsewhere in the world. Second, despite the constraint of having a less directly accessible local key decision-maker, unions and workers do still frequently take actions against restructuring. Third, their actions appear to involve accessing a wider range of different institutional and organisational possibilities than in the past, possibilities that in some contexts have always been present, but in others, are of fairly recent origin.

In all five countries, the form of resistance is evolving. In part, it has been individuated, with many workers forced to challenge their employer outside the workplace in the courts rather than collectively within the workplace. In part “internal” forms of resistance such as go-slows, work-to-rules, petitions, meetings, internal manifestations of resistance (such as leafleting and badge wearing), demonstrations and strike ballots, as well as very short work stoppages are more frequent. “External” forms of visible mobilisation have also increasingly focused on winning public arguments about the failure of the company or organisation to meet societal norms of behaviour in relation to restructuring, relocation and job losses. Unions are beginning to advance their arguments through more regular and extensive use of press releases and interviews in the media, and special web pages, as well as through high-profile

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protests at company premises or shareholder meetings. It is not that collective action has disappeared, it is that in response to the greater difficulties in mobilising against increasingly distant employers, a combination of internal and external forms of resistance have been encouraged. While there has been some shift in union and employee resistance mobilisation from collective to individual, particularly in the countries where employment regulations began by being less embedded, this should not be exaggerated. The visibility of different forms of employment conflict appears to vary both with the extent to which employment rights are embedded and with the active and institutionalised role of the state. Understanding the interplay of these two dimensions at the national level helps explain both differences and common trends between countries in the ways workers resist restructuring.

Notes

1. The research was funded by the EU’s DG Employment, 2008-10, under the title “Social Dialogue and the Changing Role of Conciliation, Arbitration and Mediation Services in Europe” (CAMS). The national case studies and reports were written by: Sylvie Contrepois (France), Volker Telljohann (Italy), Joanna Unterschutz (Poland), Marinus Pires de Lima (Portugal) and Nick Clark, Gill Dix and Fiona Neathey (UK). See www.industrial conflictconciliation.eu.

2. While this article is informed by these discussions and the contributions made by the national experts, any error is entirely the responsibility of the author. The author must also thank the two anonymous reviewers for making extremely helpful criticisms of the first draft of this paper.

3. There is a chance that the errors in the first factor or multiplicand are reduced by the errors in the second, while the process of dividing the result by a very large number and then multiplying it up to 1,000, helps smooth out year on year differences.

4. One of the reviewers of the paper makes the interesting point that in Britain and Poland the emergence of “no win, no fee” legal advice alongside trade union advice may have played a role in influencing trends in accessing employment courts.

5. This “strong” scoring of Britain on the horizontal access reflects the employment laws in Britain that breach ILO conventions in denying many basic trade union rights, the centralised control over public sector employment relations, and the presence of a dedicated central employment tribunal system.

6. For example, as in the massive mobilisation against public sector cuts on 26 March 2011.

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