Trade Union Bill Committee

Written evidence submitted by the Trades Union Congress (TUC) (TUB 10)

 

Introduction

 

The Trades Union Congress (TUC) has 52 affiliated trade unions, representing nearly 6 million members who work in a wide variety of industries and occupations across the public and private sectors.

 

While its use is always a last resort, the right to strike is a fundamental human right and a hallmark of any free and democratic society. It is safeguarded by a wide range of international treaties, including ILO Conventions, the European Social Charter (1961) and the European Convention on Human Rights.

 

The TUC is profoundly concerned that the right to strike is under threat from proposals in the Trade Union Bill. The government is introducing thresholds for industrial action ballots, whilst denying modernisation of balloting methods which would increase participation. The right to strike will also be undermined by the proposed removal of the ban on the use of agency staff during strikes.

 

The Bill will lead to a serious imbalance of power in the workplace. It is designed to weaken workers’ bargaining power. Strike action is the deterrent of last resort against employers who act unreasonably and exploit their staff and who otherwise would not enter into negotiations and make fair agreements on jobs, pay and conditions.

 

The government is also proposing tighter restrictions on picketing activities, even though pickets are amongst the most regulated individuals in the UK. Human rights groups, lawyers and politicians have roundly criticised the government’s picketing proposals as a major attack on the civil liberties of working people.

 

The government is taking powers to restrict the ability of unions to represent their members effectively in the workplace by limiting the amount of ‘facility time’ available to workplace reps in the public sector. The introduction of employment tribunal fees means that ordinary working people no longer have recourse to the law to protect their rights at work. Now the government is seeking to prevent working people from relying on trade unions to protect their interests in the workplace.

 

The Bill will impose extensive new red tape on unions. The remit and powers of the Certification Officer (CO) will also be substantially extended. Unions will be expected to pay for the existing and addition regulation through a new levy which will cover the costs of the CO.

 

The TUC is concerned that the government is proposing wide-ranging legislation without proper consultation. BIS consultations on the Bill proposals lasted for just 8 weeks over the summer. This is not consistent with the government’s consultation principles. [1] The government has also failed to substantiate the need for far-reaching restrictions on trade unions and their members. To date the government has failed to publish a full impact assessment of all the measures in the Bill. Whilst impact assessments have been published relating to the balloting thresholds, restrictions on pickets and protests and the proposed removal of the ban on the use of agency workers during strikes, these have been roundly criticised by the Regulatory Policy Committee as ‘not fit for purpose’ conclusions.

 

Threatening the right to strike

The TUC is firmly opposed to these proposals which create new legal hurdles for unions seeking to organise lawful industrial action.

 

Clauses 2 and 3 would introduce arbitrary thresholds for industrial action ballots, making it far more difficult for millions of working people to organise collectively in defence of their jobs, their livelihoods and the quality of their working lives.

 

We are concerned that the thresholds are discriminatory and will particularly disadvantage public sector staff. The right to strike is a fundamental human right which should be enjoyed equally by all working people, regardless of their job or function or whether they work in the public or private sector. Women will also be disproportionately affected by the proposed thresholds. Nearly three quarters (73 per cent) of the trade union members working in ‘important public services’ are women.

 

The introduction of thresholds will damage constructive employment relations. Unionised workplaces tend to be safer. They are more likely to have enhanced family friendly policies, [2] and to invest in skills and training than non-unionised workplaces. [3] Unionised workplaces are also well-positioned to innovate and respond to changing economic conditions. The BIS-commissioned Macleod Report, [4] endorsed by Prime Minister David Cameron, [5] encouraged managers to listen to the concerns of employees and their representatives as increased levels of employee engagement can help to deliver sustainable economic growth.

 

Such positive outcomes are not easily achieved. They rely on equal bargaining power between unions and employers. The ability of unions to organise lawful industrial action provides essential support for effective negotiations. It ensures that employers take the views of the workforce seriously and engage in genuine negotiations.

 

The government claims that the 40 per cent threshold in ‘important public services’ is needed to protect the public from disruption. However, statistics published by the Office for National Statistics confirm that industrial action in the UK stands at historically low levels, with union members, on average, taking one day’s industrial action every 15 years. The level of disruption caused by industrial action is also very limited. [6]

 

The TUC is also concerned that the proposed restrictions on strikes in important public services flout international standards:

 

· The Employment Law Association (ELA) has warned the government against introducing thresholds to services not covered by the ILO definition of ‘essential services’. In their response to the BIS consultation on ballot thresholds, [7] ELA cautioned the government ‘if the provisions are not drawn as narrowly as possible then the Government runs the risk of a challenge on the basis that the imposition of the raised thresholds infringes Article 11 of the European Convention on Human Rights. Any restrictions on the right to strike must not be greater than necessary to pursue a legitimate aim and are necessary in a democratic society.‘

· The government’s proposals are undemocratic as they treat abstentions as no votes. The ILO has confirmed that only votes cast should be taken into account in industrial action ballots.

· According to the ILO’s Committee on Freedom of Association, it is also not legitimate for governments to restrict the right to strike on the grounds that industrial action will impair wider economic activity. [8]

The TUC is concerned that the Bill does not define ‘important public services’. Instead the government plans to specify which workers will be covered by 40 per cent threshold in regulations. MPs will therefore have limited opportunity to scrutinise and amend new legislation which restricts the democratic rights of millions of UK workers. The TUC calls on the government to publish draft Regulations before the Bill completes its Parliamentary stages.

 

The TUC is concerned the government has decided to extend the 40 per cent threshold to individuals engaged in ancillary activities which support important public services. In doing so, the government appears to be attempting to restrict the rights of hundreds of thousands of workers employed in private sector services via the backdoor.

 

The government claims to be interested in increasing workforce democracy. However, it refuses to permit union members to use secure electronic workplace voting for union statutory elections and ballots even though this change would increase participation in union democracy, particularly among younger workers. The TUC believes that the current system of postal ballots is in need of reform. We call on the government modernise balloting rules for the digital age and to permit union members to use secure online voting for union ballots and elections.

 

Placing tighter restrictions on trade unions is likely to prolong and escalate disputes in the workplace, making them more difficult to resolve swiftly and amicably. For example:

 

· The introduction of ballot thresholds (Clause 2 and 3) will mean that unions will take more time in the run up to ballots, to ensure the necessary turnout. This will inevitably extend the dispute.

· The new ballot thresholds will remove the incentive on employers to seek an early resolution of a dispute. Many will decide to ‘wait to see’ if a union can meet the strike thresholds before making a revised offer.

· Where unions succeed in meeting the new high statutory thresholds, this is likely to raise members’ expectations. Unions’ negotiating positions may therefore harden, making a settlement more difficult to achieve.

· The extended 14 days’ notice (Clause 7) for industrial action will needlessly delay the start of industrial action.

· Time-limits for strike mandates (Clause 8) are likely to escalate disputes. Employers may decide to ‘sit-out’ the dispute and refuse to negotiate in the knowledge that unions will incur excessive costs if they are required to re-ballot their members after 4 months. In contrast, unions will feel forced to bring forward any planned strike days in an attempt to secure an early settlement.

· If union members feel that unions are no longer able to organise lawful industrial action, there could be a greater risk of wildcat strike action. In these cases, unions’ hands are tied as they will be expected to repudiate the action. It will therefore be more difficult for employers to get employees back to work and it is not clear who ACAS should invite into negotiations.

The Bill will increase the prospect of legal challenges against unions when organising industrial action. The provisions on ballot thresholds and the requirement on unions to provide additional information on voting papers (Clause 4) are particularly ripe for litigation.

 

Restricting the right to picket and protest

The TUC is seriously concerned the government is proposing to restrict the rights of trade unions and their members to picket and protest in defence of their jobs and economic interests. Pickets and protests enable trade unions and their members to communicate the reasons and purposes of industrial action publicly, peacefully persuade employees and substitute workers to support the industrial action and mobilise support for their campaigns.

 

The Bill and the accompanying consultations propose significant additional restrictions on picketing activities and union protests. The TUC believes these proposals represent a serious attack on the civil liberties of working people. They will also divert scarce police resources away from tackling serious crime.

 

Clause 9 will require unions to appoint a picket supervisor and to inform the police of the supervisor’s name and how they can be contacted. This will deter responsible individuals from volunteering to co-ordinate pickets, for fear of future victimisation.   More worrying is the expectation that the police should compile and retain information about union activists. This could amount to excessive monitoring of union activities.

 

Picket supervisors will be required to wear an armband or badge identifying them and to carry a letter of authorisation which they must show upon request to the police and to ‘anyone who reasonably asks to see it.’ This could lead to needless tensions on the picket lines. Failure to comply with these overly prescriptive requirements may also expose the union to legal action, including applications for injunctions and damages.

 

The government is also contemplating [9] requiring unions to publish picket and protest plans in advance which must detail when and where protest will take place, whether the union plans to use social media, including twitter and Facebook accounts and what they plan to set out on websites and blogs. The TUC is concerned that the campaigning activities of unions, union officials and workplace reps could be subjected to unprecedented supervision by employers, the police and other government agencies, notably the Certification Officer. Unions failing to comply with these requirements could face financial penalties of up to £20,000.

 

The government is considering introducing new criminal offences and even the use of community protection notices (previously known as ASBOs) to regulate the activities of pickets.

 

The TUC believes that these measures represent a serious and unjustified attack on the civil liberties of trade unions and their members. The activities of union pickets are already heavily regulated. Unions and their members are subject to a range of civil and criminal laws on peaceful picketing, public order, highways protection from harassment and criminal damage. It is also a criminal offence for pickets to use violence or intimidate individuals or their families.

 

The government’s proposals are discriminatory as they only apply to trade unions and their members but not to other civil society organisations in the UK. The TUC is concerned that the government has failed to demonstrate that additional restrictions on trade unions are necessary or justified. The absence of substantiating evidence has attracted censure from the independent Regulatory Policy Committee. [10]

 

Leading civil liberties groups – Liberty, Amnesty International and the British Institute of Human Rights also recently issued a joint statement criticising the government’s proposals:

 

"The government's plans to significantly restrict trade union rights – set out in the Trade Union Bill – represent a major attack on civil liberties in the UK ..... [T]he unprecedented measures in the Bill would hamper people’s basic rights to protest and shift even more power from the employee to the employer. It is hard to see the aim of this bill as anything but seeking to undermine the rights of all working people." [11]

 

In the light of such criticism, the TUC calls on the government to reconsider its proposals.

 

Restricting the ability of unions to represent members at work

The TUC is deeply concerned that the government is proposing to restrict the ability of unions in the public sector to represent their members effectively in the workplace by limiting the amount of time that workplace reps can spend negotiating improved pay and conditions, raising safety standards, promoting learning opportunities, and accompanying individuals in grievance and disciplinary hearings. The government plans to require all public authorities to report on the amount they invest in facility time (Clause 12).

 

The government is also taking sweeping reserve powers which will enable Ministers to impose an arbitrary cap on so called ‘facility’ time (Clause 13). Ministers will have the ability to use secondary legislation to amend trade union rights set out in primary legislation. They will be able to interfere with contracts of employment and collective agreements even though they have been mutually agreed by public sector employers, individual employees and their union representatives.

 

The TUC is concerned these measures will seriously interfere with the ability of the Scottish Parliament, the Welsh Assembly, and local authorities to manage devolved services and to decide how to engage with staff and their union representatives.

 

The proposals will also undermine effective joint working between employers and unions in public services which helps to maintain and improve quality.

 

For example, health unions have worked closely with NHS employers, through the Social Partnership Forum to agree responses to the Francis Inquiry into Mid-Staffordshire.

 

The Fire Brigades Union (FBU) also trains highly qualified Serious Accident Investigators (SAIs) who work with fire authorities to investigate where firefighters are killed on duty and to identify and implement service improvements which can prevent future fatalities. Caps on facility time could restrict the ability of FBU representatives to participate. This would further endanger firefighters and could mean any safety critical problems identified left unresolved.

 

Prohibition on the use of check-off

On 6th August, the Government announced that it would introduce amendments to the Bill which will prevent any public sector employers from running "check off" systems to deduct union subscriptions from the payroll. The TUC is concerned the government plans to introduce this change, even though there has been no prior consultation with employers, engagement with unions or assessment of the impact on employment relations.

 

Deductions from the payroll are a common way that employers help their employees manage their finances. Often childcare, travel, bike or computer payments are made through payroll deductions. The government claims that the legislation will save taxpayers up to £6 million. In reality in many workplaces trade unions pay employers for providing check off arrangements.

 

Increasing remit and powers for the Certification Officer

The Bill will impose extensive new red tape on unions. Unions will be expected to pay for the costs of both existing and additional regulations through a new levy which will cover the running costs of the Certification Office (Clause 17). Whilst the levy may also apply to employers’ associations, it is expected that unions will be required to meet the majority of the costs.

 

Unions will also be required to report annually to the Certification Officer (CO) about levels of industrial action (Clause 6). This will create significant new administrative burdens on unions. The TUC questions why this new duty is necessary and what purpose it will serve. Employers are likely to object to detailed information about private disputes between management and unions being published online.

 

Unions will also be required to report annually on how political funds have been used (Clause 11). Union members will be required to opt-in every five years to any payments into a union political fund (Clause 10). Opt-in processes will increase administrative costs for unions and may reduce the level of contributions raised, as has been the case in Northern Ireland. This proposal will also restrict unions’ rights to freedom of association and their ability to engage in political debates. Clause 10 also provides unions with just three months to sign existing members up to their political fund. The TUC believes this is unworkable, particularly as unions will also need to amend their rulebooks in order to comply with the legislation. Most unions only hold rule-making conferences once every year or two years. It will impossible and excessively expensive to convene a special rule making conference within three months of the Bill coming into force.

 

The TUC is also concerned that Bill will change the role of the CO from an independent arbitrator of disputes into an enforcer with wide-ranging powers.

 

Clauses 14 to 16 provide the CO with the power to:

 

· initiate complaints against unions, even though no union member has raised a complaint;

· carry out investigations or appoint inspectors to do so;

· adjudicate on issues and

· impose substantial financial penalties on unions.

The TUC believes that the wide-ranging nature of the CO’s powers is inconsistent with the principles of natural justice.

 

Other useful documents:

 

Balloting thresholds for 'important public services' - TUC response to the BIS Consultation on the Trade Union Bill : https://www.tuc.org.uk/sites/default/files/Balloting%20thresholds%20for%20important%20public%20services%20-%20TUC%20response.pdf

 

Restricting the right to picket and protest – TUC response to the BIS Consultation on the Trade Union Bill: https://www.tuc.org.uk/sites/default/files/Picketing%20and%20protest%20consultation%20-%20TUC%20Response.pdf

 

Using agency workers during strike action – TUC response to the BIS Consultation on the Trade Union Bill: https://www.tuc.org.uk/sites/default/files/Using%20agency%20workers%20during%20strike%20action%20-%20TUC%20response.pdf

 

October 2015

 

[1] The government Consultation Principles are available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/255180/Consultation-Principles-Oct-2013.pdf

[2] BIS (2014) Fourth Worklife Balance Employer Survey, published in December 2014, BIS Research Paper No. 184, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/398557/bis-14-1027-fourth-work-life-balance-employer-survey-2013.pdf

[3] Stuart, M., Valizade D., and Bessa, I. (2015) Skills and training: the union advantage: Training, union recognition and collective bargaining. Unionlearn Research paper 21, May 2015.

[4] Department for Business, Innovation and Skills 2009

[5] www.gov.uk/government/news/new-task-force-for-employee-engagement

[6] The 2011 Workplace Employment Relations Survey revealed that despite an increase in public sector strikes in 2010/11, only 3 per cent of managers reported experiencing any disruption as a result of strikes in another workplace.

[7] http://www.elaweb.org.uk/resources/responses-to-consultations/ela-response-bis-consultations-ballots-essential-services

[8] ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, paragraph 592

[9] https://www.gov.uk/government/consultations/tackling-intimidation-of-non-striking-workers

[10] https://www.gov.uk/government/collections/red-rated-impact-assessment-opinions-since-may-2015

[11] https://www.liberty-human-rights.org.uk/news/press-releases-and-statements/trade-union-bill-represents-major-attack-civil-liberties-uk

Prepared 14th October 2015