Trade Union Bill Committee

Written evidence submitted by the Royal College of Midwives (TUB 07)

Executive Summary

The Royal College of Midwives (RCM) welcomes the opportunity to submit evidence to the Public Bill Committee about the Trade Union Bill.

The RCM is the trade union and professional organisation that represents the vast majority of practising midwives and maternity support workers in the UK. The RCM is the voice of midwifery, providing excellence in representation, professional leadership, education and influence for and on behalf of midwives. We actively support and campaign for improvements to maternity services and provide professional leadership for one of the most established clinical disciplines.

The RCM is profoundly concerned that measures set out in the Trade Union Bill will unjustifiably restrict the right to strike in the UK. This will undermine workers’ ability to organise collectively to protect their jobs, their livelihoods and the quality of their working conditions. Protecting working conditions is important because midwives’ and maternity support workers’ working conditions are women’s birthing conditions.

 

The right to strike is a fundamental human right which is protected by an array of international treaties and human rights standards, including ILO Conventions, the UN Covenant on Social and Economic Rights, the European Social Charter (1961) and the European Convention on Human Rights.

 

We would like to concentrate our evidence on:

 

· the proposals to remove the ban on employing agency workers;

 

· the proposals around picketing; and

 

· the impact on partnership working and employment relations in the NHS.

 

Agency Workers

 

The RCM is firmly opposed to this proposal which will permit employers to use agency workers to undermine the effectiveness of industrial action or even to break strikes.

 

Our key concerns are:

 

· We do not agree that there is a necessity to hire agency staff to cover the duties of striking workers. During the RCM’s industrial action in 2014/15 we provided extensive guidance to our Workplace Representatives to make contingency plans to ensure safe and essential services could still go ahead. Our Workplace Representatives granted exemptions so that RCM members could provide those services based on three fundamental priorities:

 

· safety for women and babies must be ensured;

 

· a women’s choice of birthplace must be ensured; and

 

· RCM midwife members should not break their NMC Code of Conduct.

 

We made it crystal clear that our dispute was with employers, not with the women and babies we care for. Therefore, we feel the removal of this ban is completely unnecessary.

 

· If the Government were to remove the ban it would make it very difficult for the RCM to put in place contingency arrangements as we did in 2014/15. This would cause far more uncertainty about the cover during the strike period as the employers would not be guaranteed of how many agency workers they would be able to get to work and couldn’t be certain that those agency workers would be willing to cross the picket lines. Employers would be in a far safer and certain position if services were agreed with us and the ban on employing agency workers was left in place.

 

· We believe that the removal of the ban could impact on patient safety by employing agency workers unfamiliar with local procedures. Many NHS trusts do not use agency staff regularly and instead ask their existing staff to work extra hours on overtime or using the trust bank. If employers were allowed to use agency staff who were unfamiliar with local procedures and facilities this could fundamentally impact on patient safety and care.

 

· The Government’s stated intention is to limit the disruption felt by the public. However, we believe that members of the public would be concerned about the impact on patient safety.

 

· We want to impress on the Government the seriousness of ensuring safe staffing in the NHS and they could be in the position that they do not have enough agency midwives to cover safe services. There are the recommendations and procedures outlined in the NICE safe staffing guideline ‘Safe Midwifery Staffing for Maternity Settings’ to ensure that women and babies receive safe, effective and high quality care. We would also remind the Government that legally only a registered midwife (or doctor) can attend to a woman in labour. We are concerned that the Government is grossly overestimating the numbers of agency midwives that would be available and we urge them to rethink the removal of the ban and rather use the RCM’s contingency arrangements to ensure essential services can be delivered safely.

 

· We understand that the majority of midwives who work as agency midwives do so in addition to their permanent employment. We believe this would mean there would not be enough agency midwives to cover the duties of striking workers as the majority of agency midwives would be on strike themselves.

 

· We are concerned that if this could fundamentally damage the working relationship between agency midwives and permanent midwives. We conducted a survey and midwives said they would not be happy to work under these conditions because they would feel they were betraying their fellow midwives. In particular, they raised concerns about how this would damage relationships in the long term following the dispute.

 

· Furthermore, we have concerns that under UK law agency workers are not protected from suffering a detriment if they refuse an assignment because they do not wish to replace striking workers. It is not clear whether permanently employed midwives who also work agency shifts could be pressurised by the employment agency to go to work even though they had voted in support of industrial action. There could be the absurd scenario of a midwife working an agency shift to cover their own duties while they’re on strike.

 

· Employers are likely to incur significant additional costs as a result of deciding to hire agency workers during industrial action, for example agency fees. In our survey of midwives the cost of agency staffing was raised on numerous occasions, in particular it was seen as hypocritical in light of the Government’s new cap on the use of agency nurses and midwives in the NHS.

 

· The ban on the supply of agency workers during industrial action has been in place since 1973. A succession of previous Governments has recognised that the ban forms an important part of the industrial relations landscape in the UK. The Government have failed to demonstrate why the removal of the ban is now necessary or justified. Indeed, the approach has been roundly criticised by the Regulatory Policy Committee (RPC). The RPC found that the BIS impact assessment was not fit for purpose and ‘considers that the case for the central assumption has not been made and that it is not a robust basis for assessing the costs, and in particular, the benefit of the proposal.’ [1]

 

· Indeed, it is not just Trade Unions who have grave concerns about the use of agency workers. The Recruitment Employment Confederation (REC) has also recognised that the Government’s proposals are likely to have detrimental effects for employment businesses.

 

During July/August 2015 we carried out a survey of our members who work as agency midwives.

 

Our research found:

 

· 73% of respondents worked agency shifts in addition to being permanently employed as a midwife.

 

· 66% of respondents said they would not be willing to carry out the duties of a striking worker.

 

In our survey we asked midwives the reasons why they wouldn’t work an agency shift to cover the duties of a striking worker and they said:

 

"I would feel that I was betraying my work colleagues/profession"

"I would feel very guilty and disrespectful of my colleagues. It would also negate their actions, making a strike less effective."

"I would not do this. Striking is a last resort and needs to be kept as a tool to show Government we are serious about an issue. If agency workers cover the strike there is no impact of the strike."

"I feel that all midwives need to stand united to be heard and if agency workers cover shifts during strikes then it takes away the power of the strike and doesn't put pressure on management to listen to their workforce’s grievances."

"No. The reasons for striking would be the same reasons as myself so it would be counter productive to cover for striking midwives, as ultimately they are striking for better and safer working conditions which is what we all want."

"Like I was betraying the other midwives. The unit I work in generally uses the same midwives. We are all friendly and work together on regular basis. This would make it feel like a betrayal. There is no segregation of agency staff and contracted staff usually."

In our survey many midwives noted their concerns about patient safety:

"Under the previous industrial action, our wards were sufficiently staffed to ensure safe care for women and their babies. I would be concerned that use of agency staff unfamiliar with trust policies and guidelines would put women and babies at risk."

"This makes me angry as it belittles those who are striking in the first place; the strike won't mean much if the work can be easily covered by agency staff. I think it is also potentially dangerous covering shifts with agency staff during a strike as they may outnumber the permanent more experienced staff leaving themselves and the women open to omissions in care."

"It would be unfair as agency staff are highly paid and I'm sure there would not be enough of them to cover the service anyway. It would also be unsafe for woman as our unit does not usually employ agency midwives, so they would not be familiar with any local issues/ facilities."

In our survey many midwives noted concerns about the cost of using agency workers as opposed to making contingency plans with the RCM:

"I feel it shows that the Government does not understand how much agency workers cost! Arrangements were made that ensured patient safety was not compromised, and even during the strike, the system ran on goodwill. Agency workers covering the service shows that the Government does not care about our voice and what we are trying to say."

"I think it would be extremely hypocritical of the government to endorse or even encourage trusts to use expensive agency staff to cover industrial action when they have criticised the use of such workers."

In our survey many midwives said that using agency workers undermines their right to strike:

"It completely undermines our right to strike… Striking would have no impact what so ever so what would be the point? We do not want to strike on a regular basis we want fair negotiations."

"Most of our managers and senior managers are also members of a union so I would imagine there would be a strong sense of conflict. Our trust very rarely uses agency workers but I would feel insulted if they were used for this purpose."

Therefore, the RCM believes the Public Bill Committee should reconsider the removal of the ban on employing agency workers.

Picketing

 

The RCM is firmly opposed to the proposals relating to picketing as they are unnecessary, unjustified and disproportionate. We do not recognise that there has been intimidation of non-striking workers and was certainly not the experience of our members on our picket lines when we took industrial action in 2014/15.

Our key concerns are:

· The right to picket and protest is a fundamental human right which is safeguarded by ILO Convention 87 (Article 3), the European Social Charter (Article 6(4)) and the European Convention on Human Rights (Articles 10, 11 and 14). Pickets and protests enable trade unions and their members to communicate the reasons and purposes of industrial action publicly, peacefully to persuade employees and substitute workers to support the industrial action and to mobilise support for their campaigns.

 

· Our picket lines were peaceful and supported by the public. There is no evidence to support strengthening the laws on picketing and protest as there is no evidence that picket lines are anything but peaceful. The Carr Review [2] in 2014 found that the current legislation on picketing is fit for purpose and the RPC [3] concluded that not only is there no evidence on which to base the proposals in the Trade Union Bill but there is also no discernable benefit to be derived from the proposal.

 

· During our pay dispute in 2014/15 we commissioned ComRes to conduct a poll of members of the public and 80% of the British public supported giving NHS staff the 1% pay rise that was recommended by the Pay Review Body and that we were campaigning for. Additionally, 63% of British adults supported midwives taking industrial action, provided arrangements were made to ensure that any pregnant woman in need of immediate care continues to receive it during any action, which we did with our contingency plans.

 

· We would like to caution the Government against giving the impression that they are trying to prevent workers from raising workplace concerns, in particular public sector workers. We are very alarmed by the extreme nature of the proposals in the consultation documents as they are complicated and wholly disproportionate. We believe the intention is to frighten and confuse midwives from exercising their right to protest for fear that they will make a simple mistake and be prosecuted. It is a fundamental right that workers should be able to peacefully protest and these proposals are an attack on civil liberties and are wholly disproportionate and unnecessary.

 

We conducted a survey of members about their views of taking industrial action and many members commented on the level of support they received from the public on the picket lines:

 

"The atmosphere on the picket line was up beat, we were all overwhelmed by the extent of the support from the public."

"A joyful gathering, not a display of aggression, more of a sisterly event supporting one another."

" Very good, there were retired staff came along to support us and someone brought us food. Lots of drivers going past were hooting their horns in support."

"Very good. We had the biggest representation including babies and a dog! The public drove past and gave us food and also beeped their horns for us."

"We were strident but it was cheerful and sociable. We were on a busy road and it was tremendously uplifting to see the support we got from the public."

"We received an enormous amount of public support, especially from women, families, medical staff and other healthcare professionals. The picket line had a large turn out and people stood for the entire duration of the strike. The atmosphere was very united and encouraging, we all left feeling very positive and optimistic about the future."

"Full of energy, determination, pride and respect for each other to be finally standing up for ourselves .. . But the best feeling came from the support of the public we serve every day; bringing us hot drinks, hooting their horns, waving and the words of encouragement they gave."

Our experience is that picket lines were peaceful and well supported therefore we believe the Government’s proposals are unnecessary, unjustified and disproportionate.

 

Partnership Working and Employment Relations

 

We believe the Government’s proposals will fundamentally damage employment relations and make it more difficult to resolve disputes. Industrial action is a symptom of poor employment relations not the cause. Industrial action is a last resort for trade unions; it certainly was for the RCM with our first period of industrial action taking place in 2014, which was the first time in our 134 year history. The Government should not underestimate the gravity of the union’s decision to ballot their members for industrial action and the seriousness of the member’s decision to vote for and take industrial action. Allowing employers to undermine industrial action will only further damage the employment relationship.

 

In our survey of members we asked about how they felt about voting for, and taking, industrial action for the first time:

 

"Because I feel the Government are not listening to concerns. Midwives work long hours in sometimes very stressful and emotionally demanding circumstances. I am not a greedy person but feel a fair wage, in line with inflation, is the least midwives deserve in recognition of their work."

"As I felt that the Government was not acting in a fair way.. The time had come to show that we would not be walked over any longer."

"It was a last resort. The Government had pushed us so far and was so unwilling to listen that it was the only option left for us to make our voices heard. It is not just us that suffers from the constant put downs, and feelings of worthlessness that Government is trying to promote amongst us. When we feel so overtired, overworked, underpaid and disrespected, the patients see it too, however hard we try to hide it."

"We appeared to have no alternative as no-one ever listens. I have been in the health service over 30 years and I would never have contemplated industrial action in the past but with ever increasing workloads… I felt that it was right."

Traditionally in the NHS trade unions, employers and the Government have enjoyed good partnership working and good employment relations. These proposals will fundamentally damage that partnership working. Government should be working to improve employment relations and helping both sides resolve disputes rather than profoundly shifting the power balance and allowing one side to steamroller across the other.

 

Conclusion

The RCM is profoundly concerned that measures set out in the Trade Union Bill will unjustifiably restrict the right to strike in the UK. This will undermine workers’ ability to organise collectively to protect their jobs, their livelihoods and the quality of their working conditions. Protecting working conditions is important because midwives’ and maternity support workers’ working conditions are women’s birthing conditions.

 

We believe that in the event of industrial action (which is very rare in the NHS and always a last resort) the public would be far happier with the arrangements that we put into place during our industrial action in 2014/15. We provided extensive guidance to our Workplace Representatives to make contingency plans to ensure safe and essential services could still go ahead. Our Workplace Representatives granted exemptions so that RCM members could provide those services based on three fundamental priorities: safety for women and babies must be ensured; a women’s choice of birthplace must be ensured; and RCM midwife members should not break their NMC Code of Conduct. We made it crystal clear that our dispute was with employers, not with the women and babies we care for. Therefore, we feel the removal of the ban on employing agency workers is completely unnecessary and in fact could have implications for safety.

 

We believe that the public would benefit far more if the Government was working to improve employment relations and helping both sides resolve industrial disputes rather than profoundly shifting the power balance and allowing one side to steamroller across the other.

 

October 2015

 

Prepared 14th October 2015