The Role of Specialist Legal Institutions in Bargaining Under the Employment Contracts Act 1991: Saboteurs or Saviours?

Abstract

This article examines the role of the "new" legal institutions in bargaining under the Employment Contracts Act 1991 through an analysis of case law and legal research. It provides an overview of bargaining provisions specifically addressing: choice of representatives, authorisation, recognition, rights of access, negotiation and ratification and critically analyses how the legal institutions have interpreted bargaining provisions under the Act. It argues that the free market philosophy underpinning the new regime is fundamentally flawed and that "free bargaining" has failed to deliver a workable system. Contrary to the peripheral role envisaged by the Act for the "new" legal institutions they had little option but to intervene and assume a traditional role of balancing the competing interests of employer and employees. In the absence of a statutory mandate for intervention, they find themselves in an increasing precarious position pointing to an urgent need for refornt of bargaining provisions and clarification of their role.