The influence of ‘soft’ fair work regulation on union recovery: A case of re‐recognition in the Scottish voluntary social care sector

• Published date: 01 May 2022
• Author: Ian Cunningham,Philip James,Alina Baluch
• Date: 01 May 2022
• DOI: http://doi.org/10.1111/irj.12362

ORIGINAL ARTICLE

The influence of ‘soft’fair work regulation on

union recovery: A case of re-recognition in the

Scottish voluntary social care sector

Ian Cunningham

1

|Philip James

2

|Alina Baluch

3

1

Department of Work, Employment and

Organisation, Strathclyde Business

School, University of Strathclyde,

Glasgow, UK

2

Middlesex University Business School,

London, UK

3

St-Andrews Management School,

University of St Andrews, St Andrews,

UK

Correspondence

Ian Cunningham, Department of Work,

Employment and Organisation,

Strathclyde Business School, University of

Strathclyde, William Duncan Building,

Rottenrow, Glasgow G1 1Q4, UK.

Email: ian.cunningham@strath.ac.uk

Abstract

This longitudinal case study contributes to debates

concerning how ‘soft’and ‘hard’forms of regulation can

interact to contribute to the advancement of worker

rights. More specifically, the article explores the contribu-

tion of Scotland's soft fair work (FW) programme and

the UK's hard statutory recognition procedure to union

re-recognition in a voluntary sector social care provider.

In combination, hard and soft regulations are found to

have added breadth to the pressures for re-recognition

exerted by the union, bringing reputational and financial

costs associated with derecognition to the employer. Con-

cerns nevertheless arose regarding the depth of impact

from this interaction due to union compromises on key

issues in the final recognition agreement. Due to the spe-

cific public service context of the study, doubts are also

expressed regarding the potential for unions in other

hard to organisesectors to achieve similar outcomes.

1|INTRODUCTION

Framed within the employment relations literature on the effects of ‘hard’and ‘soft’forms of

regulation (Howell, 2005; Stuart et al., 2011), this paper uses a longitudinal, qualitative case

study of a Scottish voluntary social care provider to analyse the impact these forms of regulation

Received: 5 September 2021Revised: 29 March 2022Accepted: 5 April 2022

DOI: 10.1111/irj.12362

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits

use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or

adaptations are made.

© 2022 The Authors. Industrial Relations Journal published by Brian Towers (BRITOW) and John Wiley & Sons Ltd.

Ind. Relat. 2022;53:261–277. wileyonlinelibrary.com/journal/irj 261

have on union recovery following a derecognition decision. The analysis contributes to debates

concerning the interaction between soft and hard regulations (Holgate et al., 2018; Johnson

et al., 2019; Moore et al., 2013) and offers scrutiny of the claims of its ability to improve labour

standards (Locke et al., 2013; Szabados, 2021).

Regulation can influence union recovery in a positive direction, because it is partly a

function of the degree of employer recognition which, in turn, is a product of how far govern-

ment encourages it (Bain & Elsheikh, 1976; Croucher & Wood, 2017). Analyses have been

undertaken of the role of hard law (e.g., the Employment Relations Act [ERA] of the UK

Government, 1999) on union recovery. The ERA's statutory recognition procedure, although

designed to create an environment where unions and management sign voluntary deals, is clas-

sified as hard law because it contains a statutory procedure that enforces recognition where the

parties cannot reach a voluntary deal (Kuruvilla & Verma, 2006). An abundance of research

shows some employer compliance with the Act (Brodtkorp, 2012; Gall, 2006,2010; Moore

et al., 2013), including examples where it has laid the groundwork for unions to achieve re-

recognition (Korczynski & Ritson, 2000).

Given the insufficiency of hard regulation on its own, however, scholars call for further

research on the influence of soft forms of regulation on unions and collective bargaining

(Howell, 2005; Marchington, 2015; Stuart et al., 2011). This links to the expectation that soft

regulation can act as a substitute for, or a complement to, its hard counterpart and when com-

bined together can compensate for their respective limitations. Soft regulations are measures

that are not enshrined in law and can only persuade rather than compel employers to imple-

ment specific practices (Kuruvilla & Verma, 2006). Research into soft regulation is topical, as

seen in a wide variety of studies exploring the cross-border employment regulation of multina-

tional corporations (Hepple, 2005; Kuruvilla & Verma, 2006; Szabados, 2021), and more recent

attention devoted to the measures adopted by the devolved governments in the

United Kingdom to promote fair work (FW) (Heery et al., 2020; Sisson, 2019). Devolved govern-

ments in Scotland and Wales have designed FW to help build ‘inclusive growth’, instead of low

wage, poor quality jobs. Soft regulation is chosen to achieve these goals because employment

law remains one of the UK government's reserved powers, so the devolved governments cannot

legislate through hard law (Heery et al., 2020; Sisson, 2019).

In Scotland, FW has five dimensions covering worker voice and explicit support for collec-

tive bargaining, as well as security, respect, opportunity and fulfilment (Fair Work Convention

[FWC], 2016). Under the Scottish Fair Work (SFW) framework, representation through trade

unions and other managerially sponsored mechanisms are seen as legitimate approaches to

allow workers to speak, be heard and contribute to debates and decision-making. Moreover,

there is a strong emphasis on ‘mutual gains’as representation and voice are seen to benefit

employers as well through improving organisational performance (FWC, 2016).

For some, these initiatives promoting FW are seen as promising alternative social demo-

cratic forms of employment relations in at least parts of the United Kingdom (Heery

et al., 2020; Sisson, 2019). Not all, however, are as optimistic. Gall (2021) in his report utilising

secondary sources, for example, offers a pessimistic assessment of these soft measures, identify-

ing no discernible impact. These opposing claims are part of three competing perspectives on

the impact of soft regulation. The first is that ‘soft regulation’provides low to zero impact due

to lack of legal standing/enforceability (Meardi, 2012; Stuart et al., 2011). The second sees soft

regulation having a positive impact on its own because it can bring a range of alternative mea-

sures for compliance where hard regulation fails, for example, through raising public awareness

and opinion, sanctions against products and the role of powerful soft intermediary bodies that

262 CUNNINGHAM ET AL.