Trade Union Bill

Written evidence submitted by UNISON

Introduction

1. UNISON believes that the measures contained in the Trade Union B il l and associated regulations and propos als will restrict the ability of people at work to organise collectively, make their voice heard at work and if necessary, take industrial action. It shifts the balance of power away from workers, whether they belong to a union or not. It will damage social partnership and replace constructive relationships with protracted disputes and increased litigation . UNISON believes the Government should be focusing on the real problems our country faces instead of undermining the civil liberties of trade union members or weakening people’s right to be supported at work.

2. UNISON believes that the full impact of the Bill on core trade union activities – supporting members through challenging times, working constructively with employers and undertaking collective bargaining on pay and conditions have not been properly scrutinised or understood. We therefore welcome the opportunity to make written and oral submissions to the Public Bill Committee on the full implications of the Bill’s provisions.

3. We agree with the TUC that the Bill and its accompanying proposals and announcements amount to nothing less than "a full frontal assault on the industrial and political freedoms of the British trade union movement". It is our view that they amount to a breach of international law. We endorse the TUC submission to the Bill Committee.

Ballot thresholds for industrial action (Clauses 2/3), Information requirements relating to industrial action (Clauses 4/5/6) & Timing and duration of industrial action (Clauses 7/8)

4. UNISON is deeply concerned that these clauses places at risk the fundamental right to strike, and unjustifiably so. Strikes are at a record low and the UK already has a strictly regulated system for industrial action. Unions already have to comply with highly complex legislation, including onerous notice and balloting requirements. As a result, unions are at risk of legal challenge, with employers able to win injunctions for minor administrative errors and thereby preventing industrial action from taking place. The Bill would exacerbate this. As a result of Clauses 4-8:

o unions will have to take more time in the run up to ballots to ensure the necessary turnout, prolonging the dispute.

o thresholds will remove the incentive on employers to seek an early resolution of the dispute. Many will decide to wait and see if a union can meet the strike thresholds before making a revised offer.

o the extended 14 day notice of industrial action will needlessly delay its start.

o time limits for strike mandates are likely to escalate disputes, with employers choosing to sit out disputes and refusing to negotiate in the knowledge that unions will incur new costs if they are required to re-ballot their members after 4 months.

o all these factors make it harder for ACAS to gain agreement from employers to engage in talks.

o the rules on who is covered by the 40% yes vote requirement are highly complex and placing responsibility on unions to determine who is covered places a huge bureaucratic demand where multiple employers and service users are involved [1] .

5. UNISON is firmly committed to increasing participation in all forms of our democratic activity – including industrial action ballots and this is why we are asking for electronic and/or supervised workplace ballots. Contrary to government claims that e-balloting is insecure, many membership organisations use electronic and online balloting, including political parties who use them for candidate selections. A recent Speakers’ Commission for Parliament also recommended that secure online voting should be an option for all voters by 2020. UNISON is also in favour of supervised workplace ballots, which is currently already permitted by law for union recognition ballots by the Central Arbitration Committee and for which there is an existing legal framework.

6. A refusal to consider electronic balloting or workplace balloting together with extensive red tape undermines the government’s claim that they support ordinary people’s ability to withdraw their labour or increased democracy. Instead, workers, particularly those who are in low paid, insecure work will now face a series of bureaucratic hurdles, which might result in legal action and financial penalties even if all the thresholds are met. Even with all these conditions met, proposed regulations will allow the use of agency workers to break strikes.

7. Trade union activity provides workers a place to voice their experiences and mechanisms to resolving grievances and disputes whether informally or through collective bargaining. This plays a critical role in resolving disputes and in avoiding the need for industrial action or expensive litigation. Without a credible right to strike, there is no incentive for unscrupulous employers to engage with the concerns of their workforce. 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.

8. The well-being of workers cannot rely on the voluntary efforts of employers. They rely on equal bargaining power between unions and employers. The ability of unions to organise lawful industrial action is essential support for effective bargaining.

9. Our annexe sets out case studies and examples of how social partnership helps manage change and deliver high quality services. The Bill will ride roughshod over this best practice and threatens to undermine a spirit of collegiate working that has taken years to foster. Deliberately damaging employment relationships just when public services are set to go through increased workload and budgetary pressures sacrifices the efficient provision of high quality public services for the sake of ideology.

10. The proposal currently under consultation to use agency workers to break strikes also affects the safety and quality of the services. Under UK law, agency workers are not protected from any detriment if they refuse an assignment because they do not wish to replace striking workers. They could find themselves in an unfamiliar workplace without the proper support, induction and directions from permanent colleagues that they need in order to perform their tasks appropriately. This will put them in an impossible and unfair position and the Recruitment Employment Confederation agree. [2]

Picketing (Clause 9)

11. Peaceful protest is an important part of an open and democratic society and there should be no place for a law that makes criminals of people making their voices heard in this way. UNISON is extremely concerned by the implications of plans to regulate peaceful protest, including:

o Appointment of picket supervisors who must wear armbands and carry letters of authorisation, the absence of which could expose their unions to legal action.

o publishing picket and protest plans and to state in advance if unions plan to use website, blogs and social media, including what they plan to set out.

o Campaigning activities subjected to unprecedented scrutiny and monitoring by employers, police and the Certification Officer (CO).

o the introduction of new criminal offences and the use of ASBOs to regulate the activities of pickets.

12. Laws already exist which prevent intimidation or the use of aggressive behaviour on picket lines and unions must comply with a detailed Statutory Code of Practice [3] and these proposals are unwarranted, overly-prescriptive and set a dangerous precedent. They represent a serious and unjustified attack on the civil liberties of trade unions and their members.

13. While the government has denied that social media will be covered, BIS warned that unions could be asked to ‘specify’, amongst other things:

"Whether it will be using social media, specifically Facebook, Twitter, blogs, setting up websites and what those blogs and websites will set out" [4]

14. The government has also argued that only trade unions and not individuals would be covered. However, BIS makes clear that if ‘individuals have ignored the union’s strategy and are acting on their own accord’ the union would have the chance to ‘repudiate’ them [5] . The government gives unions the option of submitting to excessive monitoring or repudiating their own members – or facing enforcement action including penalties from the CO.

15. There is no clear explanation as to why unions are required to report on their intended use of social media or how the police or CO are expected to do. We believe its intention is to deter unions and their members from promoting their campaigns, thus stifling democratic debate. In our opinion, scarce police resources would be better deployed protecting the wider community rather than monitoring the peaceful activities of trade union members.

Political Funds (Clauses 10/11)

16. These clauses weaken democracy in two ways. First, the clauses place unnecessary requirements on trade unions that will affect how they campaign outside of party politics. Such requirements do not exist in relation to other civil society organisations or campaign groups. As such the clauses seek to single out and silence the campaign voice of working people. 

17. Most of UNISON’s campaigning work is funded by our non- party political aligned General Political Fund (GPF) – following priorities set democratically at our national conference. The GPF supports a wide range of external local and national causes - including giving grants to anti-racism projects, civil society groups and community campaigns. GPF spending during elections is already regulated by the Lobbying Act.

18. Secondly, by directly affecting the way in which trade unions fund the Labour Party, these clauses undermine the long standing custom that parties should refrain from interfering in the funding and organisation arrangements of rival parties.  It is difficult to see how union members could sustain current levels of funding for the Labour Party, or how the party could find alternative funding. 

19. UNISON members already have a choice whether to pay a proportion of their subscriptions into the GPF, an affiliated political fund (Labour Link), both funds, or neither.

20. UNISON will have to introduce rule changes to take account of this provision making the three month deadline impossible to meet as any changes to union rule books have to meet separate Certification Officer requirements not covered by this Bill.

Facility time (Clauses 12/13)

21. Research by NatCen [6] has highlighted the valuable role trade union representatives play in public services, enabling meaningful consultation and negotiation within workplaces, improving workplace relations and employers’ reputations, early interventions to prevent grievances escalating into more serious problems and saving jobs during restructuring and redundancy processes. Facility time pays dividends for both employers and workers. These provisions will damage this work. It will also damage workplace learning, health and safety and work done to prevent discrimination.

22. Workers also use facility time to undertake training, attend union meetings and take part in internal union democracy. The government has argued for greater levels of trade union democracy while restricting the ability of ordinary members to participate fully. Facility time should be left to the employer’s discretion as it is in the private sector.

Certification Officer (Clauses 14/15/16/17)

23. The Trade Union Bill will give unprecedented new powers for the CO that do not exist for similar regulators such as the Charity Commission. Trade unions are already over-regulated and now more restricted than other civil society organisations. The CO will have wide-ranging powers to initiate complaints against the union, to investigate the activities of the union and to decide which penalties should be imposed on the union. It will lead to additional costs for unions through the proposed levy, to be charged to unions to cover the running costs of the Certification Office.

Check Off

24. In August, the government announced they would be removing "check off" in the public sector. At the time of writing, the wording of the amendment has not been seen. Many UNISON members have their subscriptions taken straight out of their wages – a process efficient and beneficial for both employers and members.

25. It is underpinned by three contractual relationships – the contract with the employer and staff member agreeing to the arrangement, the collective agreement between the employer and the union and the contract of membership between the member and the union. The proposal to prohibit the use of Check Off has been announced without consultation with employers or unions.

26. UNISON pays for the cost of check off in many instances but the majority of employers facilitate this because they find it beneficial. Indeed, Danny Alexander MP when a Treasury Minister in the Coalition Government, wrote to stop attempts by other ministers to end check off, saying "Departments should be aware that there is no fiscal case for doing this, as the Unions have offered to pay any costs associated with check-off, which are in any case minimal."

27. Employers facilitating check off is another example of partnership working with their staff and trade unions. It fosters constructive employment relationships and supports collective bargaining. This is why since the announcement, a host of public service employers have voiced their support for retaining check off.

28. There has also been concern expressed at damage to the localism agenda, from across Britain. The North East Regional Employers Organisation stated "We are surprised and disappointed that we are to lose the autonomy to take our own decisions around these important areas for employee engagement, particularly given the government's rhetorical commitments to the localism agenda."

29. As Scottish Councils stated:

"COSLA Leaders are highly concerned that these changes are being brought in with no evidence to back up the assertion that this would modernise industrial relations …. We have a constructive environment now where we work WITH our trade union partners to the benefit of all communities in Scotland. The UK Government, through this Bill, would force councils into changing the arrangements for "check off" and facility time which work well for both parties and the cost of these arrangements are already covered by direct contributions from the trade unions themselves.

Devolution

30. First Minister for Wales, the Rt. Hon. Carwyn Jones made clear in a strongly worded statement that the Bill would damage employment relations, in a way that trespasses into matters devolved to the Wales Assembly.

31. It would also have serious implications in Scotland. While industrial relations is a reserved matter to Westminster, sections of this Bill, particularly those dealing with check off/DOCAS and facility time, explicitly interfere in devolved issues of public administration. UNISON believes that the Bill requires the support of devolved parliaments, a viewpoint supported by the Scottish and Welsh g overnments .

32. The Scotland Act also requires that human rights must be respected and realised at all levels of governance in Scotland – as UNISON argues above, the bill breaches a number of the articles in the European Convention on Human Rights and in particular ILO conventions that the UK has signed up to.

33. All public bodies in Britain are required to have a due regard for the need to eliminate discrimination, however the duties are much stronger in both Wales and Scotland. This means that the Bill will cause additional difficulties, given UNISON’s view that they have significant equality implications, outlined below.

Equalities

34. There is a very real danger that the Bill will undermine decades of progress on equal opportunities. Restrictions on facility time and the damage to social partnership will erode the work done by trade unions to improve equal opportunities practices, thus removing one of the best protections from discriminatory treatment. Unions also train officers and representatives to deal with a range of issues including bullying and harassment and to promote equality and bargain for equality at work.

35. Women make up the majority of the trade union movement and TUC research has highlighted the fact that 73% of the people working in the defined ‘important public services’ are women and will be therefore be disproportionately affected by these new restrictions on their democratic rights.

36. This is illustrated by the gender pay gap, where figures show that the public sector has consistently outperformed the private sector. Unions and employers worked together to produce non-discriminatory pay systems in local government and health.  As a direct result of this and other measures jointly agreed to improve women’s workplace opportunities, the pay gap in the public sector has been consistently lower than the private sector since 2003 [7] benefiting millions of women. 

37. The BIS equality impact assessment of the Trade Union Bill, published one day after the consultation phase closed fails to engage with any of these concerns, even to dismiss them. It simply concludes: "our assessment suggests that there will be no direct adverse equality impacts on these groups from the implementation of the Bill measures. These measures are expected to be beneficial overall, since they are intended to ensure that there are strong democratic mandates from members for the actions of their trade union and to provide a regulatory framework for trade unions."

38. This betrays a lack of understanding  of discrimination experienced by workers with protected characteristics and the proactive role of collective bargaining in preventing discrimination and promoting positive policies such as equal pay or family friendly working.

October 2015

ANNEXE

Legal concerns

1. UNISON agrees with the TUC that the government’s proposals violate ILO Conventions 87, 98 and 151. They may also violate other treaties to which the United Kingdom is a party, including the European Social Charter, particularly Articles 10 and 11. UNISON endorses the TUC submission to the ILO committee of experts.

2. The European Convention on Human Rights also safeguards the right to freedom of association, including the right to form and join trade unions and the right to freedom of expression without state interference.

3. The proposed restrictions on rights to picket and protest peacefully would seriously interfere with the civil liberties of working people in the UK, including their rights to assemble and to freedom of expression. They interfere with the democratic right to protest and with Article 10 of the European Convention on Human Rights in a way which is not otherwise reflected in civil society. This in our view indicates a specific targeting of trade unions and the activities of trade union members. The measures are draconian and unbalanced. There is clear risk of Article 11 violation in addition to Article 10.

The trade union contribution to the workplace

4. Trade unions play a central role in resolving disputes in the workplace and in avoiding the need for industrial action. 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.

5. One example of the kind of social partnership working UNISON and its members engage in within the public service is in the NHS. Successful partnership working is something that has defined industrial relations in the NHS, particularly over the last 10 years, across different governments. The provisions of the Trade Union Bill will ride roughshod over much of this best practice that has built up and threaten to undermine a spirit of collegiate working that has taken many years to foster.

6. Partnership arrangements are currently in place at every level in the NHS across all four UK countries. Such partnerships between the health trade unions and NHS employers are a recognised and vital component of supporting the groundbreaking collective Agenda for Change agreement which gave women and men more equal pay for work of equal value for the first time, which is in place in all NHS organisations bar one.  This collective agreement identifies that trade union representatives should be released appropriately to participate in the partnership process and that nominated officers of local staff representatives can be fully involved in the local partnership arrangements.

7. All parties agree that partnership working with NHS trade unions promotes efficient, safe and high quality health services.  The tripartite NHS Social Partnership Forum (SPF) – the body for partnership working between the Westminster Government, employers and trade unions in England – describes the importance of this approach: "The SPF recognises what a powerful tool partnership working between employers, policy makers and trade unions can be, and how it makes a real difference to patient care and influences employment practice in healthcare and beyond."

8. The SPF website has pages dedicated to the many case studies of the successes brought about by partnership working, which include improved disciplinary procedures, improved attitudes to LGBT service users and patients, and helping establish integrated community-based health and social care services. More information on these can be found here .

9. The principles enshrined in the partnership agreement (last signed by Andrew Lansley, then Secretary of State for Health in 2012 and underpinned by the NHS Constitution) include a commitment to ensuring high quality outcomes and making the best use of resources. UNISON’s members show a deep commitment to high quality public services – at work and in the union.

10. Another example of social partnership working is the NJC Job Evaluation Joint Technical Working Group (TWG) in Local Government, set up in 1995. This anticipated a successful outcome for single status negotiations which were then ongoing, where a job evaluation system would be required to support grading reviews for employees assimilated to the new national spine. The TWG oversaw a tendering and contracting process for a computerised system for all local authorities to use. The group also produced a range of supportive materials for employers including a user manual and training packs and also appointed consultants to help in the implementation process. TWG was reconvened in 2012 to review the NJC scheme guidance and user manual in accordance with good job evaluation practice, against a background of significant restructuring in councils. During 2013 TWG updated the scheme guidance, user manual and technical notes to take account of these developments. Over the last year, TWG has produced craft profiles and is about to develop new social care and public health profiles to reflect new and evolving jobs.

11. Counter to the picture painted by the Trade Union Bill, associated consultation documents and impact assessments trade unions have a highly constructive role in managing employment relationships in workplaces across the UK. As public services go through more changes and pressures in the years ahead, the impact of the Trade Union Bill is likely to be extremely unhelpful. For example, the current most pressing concern across the NHS is the implementation of the Five Year Forward View, much of which is predicated on the delivery of new models of care.

12. The moves towards developing Multispecialty Community Providers, Primary and Acute Care Systems, Urgent and Emergency Care Networks and Enhanced Health in Care Homes will inevitably require a great deal of change from the workforce and will need to be handled sensitively to ensure healthcare staff are brought on board with such reforms so that they become advocates for reform rather than opponents of it. The deleterious impact on partnership working that is likely to stem from the government’s proposed changes has the potential to damage the NHS’s ability to produce these new models and to adapt to new ways of working.

13. Social partnership is a tried and tested approach in education across all sectors. Staff development initiatives have been at the forefront with UNISON receiving financial support from HESDA in 2001 to carry out a skills project. In 2006, UNISON and the Centre for Excellence in Leadership were funded by BIS to develop and promote a suite of support staff training in colleges. In October 2010 UNISON co-signed a partnership agreement with Ofsted. UNISON has sat on boards and panels of sector skills councils and works in partnership with organisations, such as the Education Training Foundation to develop professional standards and to introduce policy-specific training for staff. In Higher Education, partnership approaches were taken to the Rewarding and Developing Staff projects funded by HEFCE and there are ongoing discussions with the employers’ body UCEA on areas that would benefit from a joint approach. Similarly, UNISON works with the Association of Colleges (AoC) on agenda of joint interest and in 2015 held discussions on the Living Wage, employee involvement and partnership working after AoC and UNISON had commissioned research from the Involvement and Participation Association.

14. There is a high level of partnership working in schools and academies. UNISON sat on the board of the Training Agency, was a full partner on Workforce Agreement national and local partnerships and now works with the DfE education forum and local school forums. UNISON is working in partnership to deliver the school business managers professional standards, was involved in the development of teaching assistant standards and hosts Skills for Schools, a training website that is open to all school staff and employers. UNISON was an adviser to the 2005 school meals review in England and sits on the School Food Plan expert panel and its workforce sub-group that helped develop the first professional standards for school catering staff, launched in July.

15. The positive role that trade unions play goes far beyond their formal workplace role. Unions are the largest volunteer organisations in the UK and our members are active within the union, their workplace and community to improve the lives of those around them. Trade unions such as UNISON have devoted much energy to patient and public-facing education and training campaigns to improve the quality and experience of care for patients and service users. For example, following the Francis report into Mid Staffordshire, the union launched its "Be Safe" training to help boost member awareness of how they can raise concerns about poor care in the workplace and what protections are in place for staff that do so.

16. Likewise, UNISON has also been conducting training for members in dementia awareness. In King’s Lynn, for example, 300 staff have taken the training which will help make a real difference to the lives of local patients and service users.

17. The government’s proposals are likely to prove hugely divisive in many workplaces, with the intention seemingly of driving a wedge through established industrial relations policies. The consequences of this are not measured in the impact assessment. UNISON believes that there will be a considerable negative effect on workplace morale, stress, good will, staff turnover and productivity.

Damage to social partnership

18. UNISON does not believe consideration has been given to the damaging effect the Trade Union Bill would have on constructive employment relations and social partnership. For example, industrial action in the UK tends to be of short duration. In 2014, 64% of all stoppages lasted for only one or two days and accounted for 633,000 days lost (80%) and 93% of workers taking part in industrial action. The proposed new legislation has the potential to escalate and prolong disputes, making them more difficult to settle swiftly and amicably. The Bill’s provisions will lead to extended disruption.

19. As outlined in our introductory comments, the proposals to restrict employees right to strike, facility time and other attacks on trade union activity within the provisions of this bill will have a chilling effect not only on trade unions but on constructive relationships between workers and employees.

20. As public services go through more changes and pressures in the years ahead, the impact of the Trade Union Bill is likely to be extremely unhelpful. For example, the current most pressing concern across the NHS is the implementation of the Five Year Forward View, much of which is predicated on the delivery of new models of care. The moves towards developing Multispecialty Community Providers, Primary and Acute Care Systems, Urgent and Emergency Care Networks and Enhanced Health in Care Homes will inevitably require a great deal of change from the workforce and will need to be handled sensitively to ensure healthcare staff are brought on board with such reforms so that they become advocates for reform rather than opponents of it. The deleterious impact on partnership working that is likely to stem from the government’s proposed changes has the potential to damage the NHS’s ability to produce these new models and to adapt to new ways of working.

21. Wherever organisations face difficult economic conditions, unions work with employers to develop fair processes for managing change and restructures. Analysis of the 2011 Workplace Employment Relations Survey found that a large majority of lead union representatives reported working closely with management where changes were being introduced in the workplace. [8] One recent example is the Environment Agency, where in 2013 a large reorganisation was announced with 1600 jobs being placed at risk. Following the storms and widespread flooding during the winter of 2013/14, UNISON successfully pressed for a reduction in frontline job losses in order to protect the public. UNISON representatives also convinced the Environment Agency to comply with the existing Managing Change Agreement and to offer voluntary redundancies and redeployment as a means of avoiding compulsory redundancies. After a 15 month period, the vast majority of staff were either redeployed, some into new jobs, or accepted voluntary redundancy.

Safety at work

22. Union workplaces are safer workplaces, largely due to the 10,000 union health and safety reps being trained each year to internationally recognised standards. Unions raise safety concerns through health and safety committees and collective bargaining arrangements. This leads to far fewer workplace accidents [9] . According to research commissioned by the DTI (now BIS) in 2007, by reducing lost time from occupational injuries and work-related illnesses, union safety reps save taxpayers between £181 and £578m every year. [10]

Damage to public services and public safety

23. The government has tried to argue that strikes in the ‘important’ public services cause harm to the public and risks their safety. In its consultation document, BIS stated "With regard to industrial action in these public services, the challenge is to get the balance right between the interests of union members and the interests of the majority of people who rely on the services they provide." For UNISON and its members, these interests are wholly aligned. Far from placing the public at risk, trade unions play a vital role in protecting public services, driving up health and safety not just for staff but also the public. While the government argues within the BIS consultation documents for adequate levels of staffing to ensure public services run efficiently, this concern should not be restricted to instances of industrial action. UNISON and its members are at the forefront of arguing for high quality public services all year round. For example, UNISON is a member of the Safe Staffing Alliance and campaigns strongly for safe staffing levels throughout the NHS, particularly in light of the Francis report and subsequent work in this area.

24. Trade union activity is one of the best guardians of public safety and high quality services. UNISON recently organised a group of cleaners working in a university. The branch was campaigning for recognition and a living wage for cleaning staff. It was brought to the branch’s attention that only a fixed number of the cleaners were being provided with adequate footwear to clean up spills of often noxious liquids. The cleaning company were expecting the cleaners to share one pair between them. UNISON organised an online petition, which was circulated through social media, and also produced a flyer highlighting the footwear issue and linking it to a claim for the living wage. The university public relations team were embarrassed to find out that the cleaners were not even getting the right footwear. A few days later the cleaning company not only conceded in providing the correct footwear, but also started paying the living wage.

25. Trade unions such as UNISON have devoted much energy to patient and public-facing education and training campaigns to improve the quality and experience of care for patients and service users. For example, following the Francis report into Mid Staffordshire, the union launched its "Be Safe" training to help boost member awareness of how they can raise concerns about poor care in the workplace and what protections are in place for staff that do so.

26. UNISON members are dedicated to serving the public and take their commitment to patient safety very seriously. As recent industrial action over NHS pay demonstrated, UNISON and the other health unions were able to engage in emergency cover discussions with employers. In the interests of patient safety, UNISON strongly advised its health branches to engage with employers where they sought to discuss levels of cover to ensure contingency plans were in place during industrial action.

27. Common practice is to recommend Christmas Day cover when industrial action takes place. The result of industrial action is then that some services (such as outpatients and elective surgery) will not take place or will be restricted, but patient safety is maintained throughout as it would be on Christmas Day.

28. In the NHS, UNISON has an agreed policy on industrial action and emergency cover and agrees the exemption of certain categories of staff from the strike where there would otherwise would be a direct danger to the life or limb of any person such as in the emergency services in the NHS. Similarly, in local government, UNISON is committed to reach agreement with managers to ensure the public’s safety and health is protected. There are a range of services where UNISON agrees life and limb cover, such as residential homes for children and the elderly, emergency duty social work and emergency meals-on-wheels.

The case for electronic and workplace voting

29. The government claims to be interested in increasing participation in union democracy. If this is the case, Ministers should permit unions to use secure electronic and online workplace voting in union statutory ballots and elections.

30. UNISON believes that the existing balloting requirements are in urgent need of reform. Currently, all ballots and elections must be conducted on a fully postal basis and voting must be by the marking of a voting paper. UNISON has joined the TUC and other affiliated unions in repeatedly expressed concerns that these requirements impose onerous financial and administrative burdens on unions and can result in lower levels of involvement by members in key democratic decisions within unions. Fully postal ballots are expensive and can unnecessarily extend the voting period. This can be detrimental to good industrial relations, for example in cases of industrial action or statutory recognition, where faster and more efficient balloting methods can assist in the earlier resolution of disputes.

31. These views were supported by the Better Regulation Taskforce in its report entitled Employment Regulation: striking a balance published in May 2002. In it, the Task Force commented that the provisions of the legislation relating to union elections and ballots "appear to impose undue burdens on trade unions". Following this report, the government introduced legislation (section 54 of the Employment Relations Act 2004) which provided powers permitting the introduction of electronic ballots for unions. To date, these powers have not been utilised.

32. UNISON believes that the government should modernise the law and permit unions to use electronic and workplace voting systems. This would encourage increased participation in union democracy and help bring ballots into the 21st century. Different methods of voting would be welcomed by union members as offering greater flexibility, speed, convenience and ease of access.

33. Online balloting can be safe and secure, much like online banking. Many membership organisations, including the RNIB, the Institute of Chartered Accountants for England and Wales, the National Trust, the Magistrates’ Association, the Countryside Alliance and the Royal College of Surgeons, use electronic and online balloting for elections. Political parties also use online voting for the selection of candidates. A recent Speakers’ Commission for Parliament also recommended that secure online voting should be an option for all voters by 2020.

34. UNISON therefore calls on the government to introduce legislation permitting the use of secure electronic and workplace ballots as a matter of urgency. The legislation should also be future-proofed enabling unions to take advantage of existing and new forms of technology.

35. The statutory scheme should be light-touch and avoid onerous additional duties for trade unions. Scrutineers should be expected to oversee the balloting process and to validate whether they conform to statutory requirements, including that:

o All those entitled to vote have an opportunity to do so;

o Votes cast are secret;

o The risk of any unfairness or malpractice is minimised

36. UNISON also believes it is important that union members have the opportunity to vote in the workplace. Workplace voting is likely to increase member participation in ballots. Union members associate their union membership and activities with their workplace rather than their home lives. However, it is essential that members can vote in a way which is free from interference or intimidation by their employers.

Excessive Bureaucracy

37. The Bill places excessive bureaucratic demands on trade unions, particularly with the proposals around thresholds for ‘important’ public services

- Unions will need to determine which members who work in the service sector who might, as part of their job, provide ancillary services to public services and therefore be caught by the 40 per cent threshold. As a result, they will need to gather additional detailed information from members relating to their jobs and functions. This will place onerous new administrative burdens on unions and divert union officials and reps away from the day to day representation of union members.

- Employers currently have no duty to cooperate with unions or to respond to requests for information. If the government proceeds with the legislation, as a minimum employers should be required to cooperate with unions and to provide requested information.

- Unions will face a significantly increased risk of legal challenges if the legislation is introduced. Unions will therefore face higher legal fees. The new legal thresholds are likely to generate endless satellite litigation. For example, the TUC has argued that TUPE-style litigation examining whether individuals were normally engaged in the provision of important public services or ancillary activities might become likely. Such litigation will create excessive legal costs for unions and employers alike.

- Unions will be required to re-ballot members if industrial action will last for more than 4 months. This will impose excessive and unjustifiable costs on unions, including the costs of preparing additional complex ballot and industrial action notices for employers, scrutineers’ fees, postage costs, legal fees, and officer time overseeing the ballot.

- Every year, unions will be required to gather and submit significant additional information to submit to the Certification Officer relating to industrial action undertaken and political fund expenditure. This will create significant additional administration costs for unions.

- Unions may be required to prepare detailed notices setting out plans for any pickets or protests associated with industrial disputes.

- The proposed cap on facility time in the public sector will limit the ability of unions effectively to represent members in the workplace. Union members and employers will be the principal losers from these measures. However the proposals will also increase the workload placed on full time union officers.

- New provisions prohibiting the use of ‘check-off’ facilities in the public sector will mean that many unions will need to make substantial organisational changes to facilitate the increased use of direct debits to pay union subscriptions.

Picketing and protest – curtailing civil liberties

38. UNISON is deeply concerned that Clause 9(6) states that a picket supervisor must show the letter of authorisation to any police officer who asks to see it even if there is no evidence of criminal behaviour. Furthermore, we are concerned that the interaction between a police officer and an individual could form the basis of a future legal challenge by the employer. These provisions call into question the independent role of the police in relation to industrial disputes.

39. Clause 9(6) also requires picket supervisors to show their letter of authorisation to anyone who reasonably asks to see it. This requirement is broader than the current wording of the Code of Practice which requires the letter to be shown to ‘the people who want to cross the picket’. It is unclear why members of the public should be entitled to know the identity of picket supervisors. UNISON is concerned that this provision will encourage officious third parties, including security firms appointed by the employer to approach picket lines and to demand to see the individual’s letter of authorisation.

40. UNISON agrees with the TUC’s opinion that additional elements of the Code of Practice should not be transposed into legislation. The BIS consultation document on these proposals acknowledged that most pickets conform to the guidance set out in the Code and has provided no evidence of widespread violations which would justify giving it a legislative basis. The existing Code is therefore effective as a regulatory tool. There is no justification for imposing additional legislative regulations on unions.

41. Requiring unions to identify all members of pickets, in the same way as the picket supervisor, would be excessive and would be a form of intimidation. Many individuals would fear being victimised by their employer or even ‘blacklisted’. They would therefore be unreasonably deterred from exercising their fundamental democratic rights.

42. UNISON believes that it would be unreasonable for the government to place a legal duty on unions to train officials in law relating to picketing. This would create significantly additional costs for unions. It would also be unfair for the government to impose such a duty at the same time as withdrawing the fee remission arrangements for trade union education, which is due to take effect from 1 August 2016.

43. Union representatives could also lose out as a result of these proposals. Increasing constraints on facility time mean than union reps, particularly in the public sector, find it difficult to negotiate release time to attend union education courses. Workplace representatives could be required to attend courses in the evenings or weekends or take annual leave in order to participate. This would interrupt an individual’s time for family life and union members’ caring responsibilities.

44. There is also a concern that the requirement on unions to provide notice of their campaign activities could lead to increased monitoring of trade union communications and activities. This would be a matter of serious concern to the whole trade union movement. These concerns have been heightened in the light of recent revelations that blacklisted union activists in the construction sector were the subject of state surveillance.

45. The government’s proposals are also not even-handed. Unions will be required to notify employers that industrial action will be taking place 14 days in advance, but employers are not required to announce whether they plan to use agency workers to break the strike. The employer will also be under no obligation to publish a notice which details their plans to campaign against the industrial action, including how they plan to communicate with union members.

46. The government has claimed [1] that the measures will not apply to individual union members. However, UNISON expects that employers will argue that unions are responsible for the actions of union officials, including full-time officers, branch secretaries and union workplace representatives. Given the realities of how social media works, it can be difficult to differentiate between accounts run by organisations and those which represent the personal views of those employed by or who are members of those organisations. Will a union member who changes their twitter profile to reflect their union’s logo be considered to have been tweeting on behalf of the union or of themselves? Will a workplace representative whose Twitter profile recognises their voluntary union role be seen as running a personal or an organisational account? We anticipate that these complexities will lead to endless legal challenges on whether tweets were written and posted on behalf of the union or in a personal capacity. The overall effect of these measures will be to constrain rights to freedom of expression for unions and individual members and activists.

47. UNISON also believes that the sanctions proposed for failure to comply with the notice requirements are excessive and unjustified. The consultation document on this proposal suggests that unions who fail to publish accurate and up to date notices could face financial penalties of up to £20,000, imposed by the Certification Officer.


[1] Unions will need to gather detailed information from staff about the nature of their jobs, whether any public services benefit from their work and how much of their working time is allocated to different contracts. These may not be easy questions for workers to answer, making it very difficult to comply with the legislation.

[2] "We are not convinced that putting agencies and temporary workers into the middle of difficult industrial relations situations is a good idea for agencies, workers or their clients." http://www.bbc.co.uk/news/business-34252307

[2]

[3] Under Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992

[4] Paragraph 25 & 26, BIS ‘Tackling intimidation of non-striking workers’ (2015)

[5] ibid

[6] http://www.natcen.ac.uk/our-research/research/the-value-of-trade-union-facility-time/

[7] It currently stands at 11%, compared to 17.5% in the private sector, although since 2003 it has fluctuated at around 10% and progress remains slow.

[8] Hoque, K, and Bacon, N ‘Workplace union representation in the British public sector: Evidence from the 2011 Workplace Employment Relations Survey’ Working Paper (2015)

[9] Nichols, Walters and Tasiran, ‘Trade union mediation and industrial safety’, Journal of Industrial Relations 2007

[10] ‘Workplace Representatives: a review of their facilities and facility time’ DTI (2007)

[1] http://www.bbc.co.uk/news/uk-34017423

Prepared 14th October 2015