Trade Union Bill Committee

Written evidence submitted by Dr Charles Umney (TUB 01)

1. I am a lecturer in employment relations at Leeds University Business School who has conducted and published various pieces of academic research on trade unionism and industrial disputes. I am submitting these remarks for consideration in relation to the Trades Union Bill.

2. Before continuing to address specific elements of the Bill in further detail, I would like to express concern over the consultation process. Various other observers have noted the short period for consultation. However, more fundamental than this was its restrictive nature , which frequently seems intended to shut down any scope for criticisms of the general thrust of the proposals as a whole. For instance, the respondent to the consultation is told about the proposals on turnout thresholds , and then prompted to suggest any additional groups they should be applied to, rather than seeking comments on whether they should be applied at all. This is evidently a problem because it suggests that the government has no real interest in understanding the nature of the issues involved in contemporary industrial disputes; only in pushing through its own agenda which, for various reasons discussed below , appears to be ill-founded and partial.

3. The overall tone of the Bill and the surrounding discussion is deeply worrying. The underlying assumption appears to be that strikes are simply a problem that must be minimised to the benefit of everyone. However, for many workers the right to strike is a critical last resort in their efforts to preserve jobs or working conditions, which may be under unprecedented pressure given current economic conditions. Even if in the, vast majority of cases, this last resort is rarely used, the existence of this right is likely to be an important factor in mitigating more severe downward pressure on wages and working conditions.

4. The point here is that while the government wishes us to believe that this legislation is targeted at counteracting only certain cases of high-impact militant trade unionism, the implications will be felt far beyond these. Any group of workers seeking to negotiate better conditions at work will be disadvantaged by these measures whether they intend to strike or not. More unscrupulous employers seeking to bargain aggressively with workers will know that, where a last resort once existed, it is now de facto out of reach (albeit not technically illegal). Indeed, as I will suggest below, the people likely to suffer most from it are those workers outside of well-organised bargaining units, and who may be in more contingent or low-wage forms of employment. These are people for whom, even at the present moment, conducting industrial action is a frightening and stressful prospect, and whose ability to do so would be all but eradicated should this Bill be made law.

5. More specific comments on the three main proposals follow.

Ballot thresholds

6. The government has claimed that the proposed new turnout thresholds will in no way undermine the right to strike. This is of course important given that to do so would be in contravention of international conventions on workers’ rights. For example, the International Labour Organisation has recently held that the broader human right of freedom of association can only be upheld where the right to strike is also enforced. So while it is unsurprising that the government claims to be upholding the right to strike, any close reading of the proposals and wider context suggests that this claim is mist aken and possibly disingenuous.

7. It is clear that these proposals will be highly obstructive. This is most obviously the case with regard to workers classified as providing ‘important public services’. In such cases, it suffices to hypothesise a bargaining unit in which a strike ballot has a turnout of 50%. Even if 75% of votes cast were in support of the strike, the strike could still be declared illegal under the proposed thresholds. In this kind of (highly feasible) example, it is very difficult to sustain the belief that the right to strike is being maintained. While it has not technically been withdrawn, extraordinary and disproportionate obstacles have been placed in the way of exercising it. Indeed, research has already found that around half of strikes conducted since 1997 would have been rendered illegal by these measures. [1] More worryingly still, the same researchers show that around 3.3 million workers, since 1997, would have been denied the right to strike after having voted for it.

8. However, even setting aside this initial assessment, wider context shows that trade unionists are indeed being treated in a discriminatory manner. Clearly, t rade unions should also be worried about low turnouts on strike ballots. And indeed they are, because for some time they have been lobbying to be able to conduct electronic balloting. At present, they are forced to ballot for strikes through sending postal ballot cards to members’ homes. This renders them extremely vulnerable to various problems: outdated addresses (it is hardly unusual for someone to move house and omit to update their trade union), the extra effort involved for the respondent, or the likelihood that communications will simply be overlooked. These problems, which are likely to be important contributors to low turnout, could be at least partially rectified by electronic balloting. But it appears that the government will continue to refuse to allow this. As a result, we are left with a situation whereby trade unions are punished for low turnout, while legislation remains in place which ensures that turnout remains low. The government vaunts trade union ‘modernisation’ in one breath, and actively prevents it the next. This is an extraordinary state of affairs which greatly exacerbates concerns that the rights of trade unionists are being specifically targeted.

9. The government’s reticence on removing barriers to improving strike ballot turnout indicates that they lack confidence in the central assumptions that guide these proposals. In its policy rhetoric, the government has argued that this will solve the perceived problem of strikes being conducted on weak mandates. This suggests that policymakers believe that there are some strikes which are forced on moderate memberships by militant union leaders. However, if this were really the case, then positive measures to improve turnout would a moderating influence making strikes less likely. The fact that the government does not appear willing to test this proposition tells a story in itself. In fact, the main losers from this Bill will be those workers where workforce sentiment is supportive of strike action, but where for a wide variety of possible reasons, such as difficulties in balloting methods, lack of awareness of balloting procedure, or other logistical concerns, they are forbidden from striking on technical grounds. Such a situation is wholly forseeable under these measures, and it is hard to quantify the problems it would cause for constructive employer-employee relations. A highly likely outcome would be a more widespread sense of unaddressed grievance on the part of the workers (which could well be manifested in other, less formalised, ways such as slow-downs, refusal of overtime, and so on) , as well as longer and more entrenched strikes being called when they are allowed.

10. A particularly serious concern with these proposals is the potentially vague and all-encompassing way in which criteria such as ‘important public services’ are defined. In its consultation, for example, the government prompts respondents to tick a box agreeing that any activity likely to cause ‘severe economic disruption’ be considered in this category. This is worryingly expansive and could potentially be extended to any number of activities, depending on interpretation . Moreover, it also suggests that the important public service criteria could potentially be extended across entire bargaining units when any workers within the unit could fall into this category. Taken together, two points become apparent.

a) Firstly, that, far from these measures being directed at outlying cases of well-organised militancy such as Tube workers, even private sector employees performing jobs far removed from frontline public service provision could face insurmountable obstacles in pursuing their right to strike. In particular, workers in outsourced ancillary service positions, who are disproportionately likely to be in low-waged, precarious work, and who may well not be fully conversant with the legal technicalities surrounding employment law, could fall victim to these legal barriers . Indeed, they are far more likely to do so than the Tube workers mentioned previously, given the more difficult circumstances in which they would be balloting, with much weaker sources of moral or legal support from union representatives . In this sense, repressive new measures on strike activity are inevitably more likely to impact harder on already-vulnerable workers.

b) Secondly, the indeterminacy and vagueness of the legislation is likely to result in both unions and employers becoming involved in more and more legal disputes over the nature of the threshold that should be applied. As indicated by recent cases such as the British Airways/Unite dispute, these kinds of problem are liable to exacerbate and extend ill-feeling and conflict in the workplace, rather than ameliorate it.

11. To make such changes, the justification and evidence offered would need to be overwhelming. But given that strikes are now at historically low rates, and given the reputational damage and weakened bargaining position that inevitably accrues to union leaders that call strikes on genuinely weak mandates, the inability to provide this evidence is hardly surprising. As the Regulatory Policy Committee has noted in its evaluation of the government’s Impact Assessment, the actual supporting evidence and rationale offered for these measures is inadequate and unconvincing. The proposals thus seem like they are using flimsy pretexts to impose draconian measures.

12. Furthermore, i t is easy to foresee what the negative consequences of these measures will be, and yet the government appears to have failed even to recognise, let alone mitigate them. In appearing to have acted in an illiberal and discriminatory towards workers, the proposals will generate huge resentment and lowered morale in workplaces (both in the public and private sector), thus also damaging productivity and the possibility of efficient, collaborative employment relations. Moreover, by generating new sources of bad feeling, it could serve in many cases to prevent the amicable resolution of disputes and even escalate industrial conflict. In the event of strikes taking place, the government will create a raft of new ways in which employers can legally obstruct them, meaning that both unions and employers will be tied up in complex legal conflicts over the technical details of ballots which endure far longer than the proposed action. Addressing Britain’s productivity gap requires good relations between management, employees, and employee representatives, and this means collaboration with, rather than suppression of, trade union activity .

  Tackling ‘intimidation’ of non-striking workers

13. These measures proposed by the government regarding intimidation during the conduct of industrial disputes are ill-considered, partial and counterproductive. Some reasons for this assessment follow.

14. As with the ballot thresholds, it is extremely important that the government’s justification for these measures is strong. The government is, in effect, proposing to extend criminal law to entire new areas of activity. This is very worrying, given the concerns over freedom of assembly noted previously, as well as the more common-sense point that subjecting ordinary workers , whose lives are entirely removed from any kind of illegal behaviour , to the threat of criminal proceedings is not something that should be done without very good cause .

15. However, the first problem with these proposals is that the government appears incapable of offering anything but the most cursory evidence of the ‘problem’ being addressed here. The government’s Impact Assessment is extremely unconvincing in this respect, and previous bodies such as the Carr Review have failed to find evidence in support of the assumptions underpinning this measure. It thus appears that the government is rushing into imposing draconian and extensive new measures, based only on its own assumptions drawn from isolated cases and stereotypes of trade unionists (the latter often amplified by sensationalised media reporting, which it appears the government has been influenced by ).

16. The second problem with this recommendation is how partial it is. The Bill is explicitly geared towards ‘preventing intimidation of non-striking workers’. However, it apparently has absolutely nothing to say about intimidation of striking workers or of workers considering whether to strike (or rather, these things are mentioned in the introduction to the proposals and then hastily dropped) . There are many issues in this respect which go completely unmentioned in the government’s literature in support of these proposals. These could include high profile problems such as the blacklisting of union members, as has happened most notoriously in the construction industry, but which the government appears to show little interest in acting against. However, it could also include less egregious but more widespread practices such as the following examples.

a) Threats issued by management that the pay deducted as a result of a strike will be disproportionate to the actual duration of the action. For instance, in the recent strikes over pensions and pay in Higher Education (of which many of your respondents will likely have personal experience) , many workers in the bargaining unit have informally reported being told by the management of various universities that they would lose an entire day’s pay as a result of taking part in a two-hour strike.

b) Line managers sending emails to staff in a run-up to the strike, asking them to report in advance (against current strike rules) to state whether or not they will be joining the action.

17. While there is so far little formal research charting the prevalence of these kinds of activities (data gathering would be difficult here, for one thing ), discussions with people in workplaces involved in strike action indicate that this is a recurrent issue in various different cases . This should not be taken lightly: managers are often able to instil profound fear and worry in workers, who are naturally afraid of any reprisals that should occur to them as a result of participating in a strike. In principle this should not be the case given that strike action is a protected activity, but it is clear that not all workers are going to be intimately aware of their rights in these instances. Hence it is highly feasible that the kinds of legalistic communications disseminated by management in advance of strikes, which refer in grave tones to the consequences of breach of contract, may in many cases have a distressing and repressive effect on workers- even those not actually planning to take part in the action. O nce again it is likely to be those workers at the more precarious end of the labour market that are less able to contextualise and dispute this kind of pressure. The legislation currently appears to have nothing to say about these problems, preferring instead to target only trade unionists as the apparent source of workplace ‘intimidation ’, and nothing about the duty of care owed by Human Resource managers to their staff.

18. Indeed, a third problem is that the Bill actually creates the potential for new forms of intimidation during industrial disputes, via the unprecedented criminalisation of ordinary workers taking industrial action. It requires that certain picketers be named in the capacity of ‘supervisors’, with their personal contact details provided directly to the police and makes it a criminal offence to have more than six people on a picket line. This represents a punitive and disproportionate approach to picketing which, as at least partially indicated by the government’s own lack of evidence to the contrary, is in the overwhelming majority of cases a wholly peaceful act. Ordinary workers with no malicious intent whatsoever would be placed under police scrutiny and the ambit of criminal law, even for extremely minor ‘infractions’.

19. A fourth problem is that the Bill creates new stipulations which appear to demand huge quantities of bureaucratic micro-management both on the part of unions and indeed on the part of law enforcement. These appear ill-thought through and likely to lead to myriad complications and potential legal wrangling. For instance, the measures require that unions submit a full proposal of planned actions two weeks in advance of a strike, including stating whether tools such as social media will be used in the conduct of industrial action. This raises very worrying questions about potential repercussions for unions if their members, for example, send out tweets of facebook status updates relating to the strike. Will these all be vetted? By whom? What kind of communications will be criminalised and according to what criteria? The Bill is alarmingly unclear on questions such as these.

20. Hence, we have legislation that proposes subjecting huge numbers of ordinary workers to potential criminalisation in the course of wholly peaceful and legally protected activity. It is frankly incredible that this was seen as an appropriate response to such a weakly-defined problem.

The use of agency workers as strike breakers

21. The rationale for the proposed measure here is dubious and unconvincing. The purported financial benefits of this measure appear to have been drawn out of thin air, as explained in more detail by the Regulatory Policy Committee in its response to the Impact Assessment. In allowing employers to hire agency workers as strike breakers the government will be creating a tool which is of very limited utility to employers themselves even in the short term, and which is potentially disastrous for employment relations and human resource management in the long term.

22. As identified by the government’s own impact assessment, there are various reasons why employers would be ill-advised to draw on these new powers. The skills and training provided by agency workers may be ill-adapted to the nature of the job they are being asked to do, particularly in important public services. It may be wholly unworkable and chaotic to draft in a new staff for extremely short periods at very short notice. Even disregarding the logistical problems, the financial burden of agency fees and probable extra training costs would be significant in many cases. And perhaps most significantly, using agency workers as strike breakers is highly inflammatory from the perspective of workplace relations. It sends a clear message to workers that their employer prioritises the short-term solution of preventing the disruption over reaching agreement with their representatives. The bad feeling resulting from these measures would in many cases be incalculable.

23. Of course, the government may counter that the existence of these new rights is not an obligation to use them. However, even for those more enlightened employers that decline to use these measures, the Bill will cause problems. The logistics of familiarising relevant managerial staff with a new legal framework will raise further costs and bureaucratic complexities for all employers. Moreover, these measures will put agency workers in a highly difficult and potentially damaging situation. They could, in effect, be asked to intervene in an industrial dispute on the side of the employer. It may well be that they are uncomfortable with the ethics of this, but feel unable to turn down offers of work for fear of jeopardising future opportunities.

Alternatives

24. Ultimately, with these measures the government is choosing to address problems of industrial conflict by treating the symptoms rather than the cause. Moreover, it is attempting to treat the symptoms in a highly authoritarian and discriminatory way. This will lead in many cases to frostier employment relations, and a series of oppressive new conditions in the exercise of employment rights which will fall most heavily on the most vulnerable workers. Instead, the government should be trying to address the causes of industrial disputes. Where we find recurrent strike activity, this may well be a sign that unions, far from being too strong, are actually shut out of any real channels of influence. In Britain, if we had stronger co-determination rights (such as wider use of Works Councils) and better institutions for preserving worker voice, including legally-binding collective bargaining, the ‘last resort’ of the strike would be used even more infrequently than it is today. This is a lesson illustrated by other European economies such as Germany or the Nordic countries, where strikes are less frequent due, not to weaker unions or more restrictive legal frameworks, but quite the reverse: a genuine effort to create institutional space in which trade unions can function. This Bill is a decisive step away from that objective and towards more confrontation.

September 2015


[1] http://blogs.salford.ac.uk/business-school/wp-content/uploads/sites/7/2015/08/SalfordReport.pdf

Prepared 14th October 2015