Trade Union Bill

Written evidence submitted by the GMB (TUB 16)

1. GMB, Britain’s general union, represents over 630,000 members throughout the UK in both the private and the public sectors.

Introduction

2. GMB opposes the Trade Union Bill and related proposals set out in three consultation documents to which we have responded separately. As a TUC affiliated union we also support the evidence submitted by the TUC.

Major concerns

3. The Trade Union Bill will not enhance industrial relations, nor will it ensure better rights at work. It seeks to impose arbitrary thresholds on industrial action ballots without permitting the mechanisms needed to increase participation. GMB is of the view that greater participation in ballots and in democratic workplace structures is of benefit to everyone. It is contrary to the stated aims of this Bill that measures such as secure online and workplace balloting have been excluded. Their exclusion, and the stated intention of the government to introduce an amendment to this Bill to allow agency workers to replace striking workers, fundamentally undermine the right of working people to protect and enhance their working conditions. These measures significantly alter the balance of power in the workplace.

4. GMB believes that this Bill singles out the public sector as part of a wider strategy towards public spending cuts. It aims to quieten the political voice of the unions by ensuring that unions have limited resources and opportunities to use the political process.

The right to strike

5. GMB believes that the Right to Strike is a fundamental human right and a feature of a free and democratic society.

6. GMB are not clear what problem this Bill seeks to solve. The number of days lost to industrial action are at an historic low. If the Bill was serious about tackling participation in industrial action ballots then measures would have been introduced to allow secure online and workplace voting.

7. Taken together with measures the Government plans to introduce to allow agency workers to replace striking workers, this Bill undermines the fundamental right to strike.

8. The Bill fundamentally alters the balance of power within workplaces. This has potential to negatively impact on industrial relations. Employers and employees can only negotiate when there is a balance of power. No working person wants to take industrial action but that last resort must be available to support collective bargaining and to ensure that employers take the views and needs of their workforce into account.

9. The proposals are likely to involve breach of UK obligations in respect of International Labour Organisation standards and rights arising from the European Convention on Human Rights and the European Social Charter. GMB notes that compliance with ILO or ESC standards is not mentioned once in the Government brief Trade Union Bill: European Convention on Human Rights (ECHR) Memorandum or in the Consultation Papers.

10. The UK has been a member of the ILO since 1919 and has ratified ILO Convention No 87 on Freedom of Association and the Right to Organise (in 1949) and Convention No 98 on the Right to Organise and Collective Bargaining (in 1950). Further the UK ratified another key instrument adopted in the Council of Europe being the European Social Charter of 1961, and agreed to be bound by Article 5 (the right to organise) and Article 6 (the right to bargain collectively), including in Article 6 (4) the right to strike.

11. By restricting the scope of lawful industrial action and pickets the proposed legislation risks other kinds of protest. The proposals have clear potential to undermine the relationship between workers and their unions with employers with potential for other forms of uncontrolled disruption which may well end up in more days being lost to industrial action than is presently the case.

Flawed consultation and a lack of impact assessment

12. The consultative process which underpins this Bill was incomplete. Three consultation subjects ran concurrently over just 8 weeks during summer holiday period. This is not in line with the normal principles of consultation relied upon by the Government.

13. No full Impact Assessment has been conducted in respect of the Bill. On the three areas which have been subject to an IA the Government’s own Regulatory Policy Committee (RPC) has deemed the measures ‘not fit for purpose’.

14. The Equality Assessment of this bill concludes that there is ‘no adverse equality impacts on any protected group’. This statement completely fails to consider the fact that 73% of trade union members working in "important public services" are women (from TUC research). For example, in the public health services, women account for 78% of staff and 80% of union members.

A violation of civil liberties

15. Civil rights organisations oppose this Bill on the basis that it violates civil liberties:

"Ideological motivations of any Government are part and parcel of politics but should not imperil the protection of rights and freedoms of individuals. Yet this relatively short Bill has the potential to cause significant damage to fair and effective industrial relations in this country and would set a dangerous precedent for the wider curtailment of freedom of assembly and association"

Liberty referred to in House of Commons Hansard 14.09.15 col 828

Barriers to workplace representation

16. The restrictions on "facility time" in the public sector mean the public sector will be operating with fewer freedoms than the private sector who can award facility time how they see fit.

17. Employers in the public and private sector alike value facility time because it leads to better industrial relations overall. A 2007 paper by the Department for Business, Enterprise and Regulatory Reform showed a financial benefit to employers from facility time by reducing the number of days lost to workplace injuries, dismissals and early exists. Issues that are raised and tackled early by workplace reps are issues that don’t escalate and cause disruption in the workplace. If a public sector employer values this, it is unclear as to why the government would centrally cap facility time.

The Certification Officer

18. The role of the Certification Officer is to be dramatically transformed, with new powers including the power to initiate action against a trade union even though there has been no complaint by a member. The outcome will be to diminish the independence of a hitherto important position occupied by highly respected

Certification Officer powers

19. The new reporting requirements to the Certification Officer represent an unwarranted increase in red tape and a drain on union resources that could be better spent on representing members.

Responses on individual clauses

Clauses 2 and 3 – Ballot Thresholds

20. The UK already has a heavily regulated environment of industrial action law with restrictions that have repeatedly been criticised by both the International Labour Organisation Committee of Experts and the European Social Rights Committee in the Council of Europe for failing to comply with international law.

21. BIS estimates that the combined effect of the 50% turn out and the 40% Yes vote requirements will lead to a 65% reduction in the number of days lost due to industrial action in the UK. No one wants to take strike action, it is a last resort when workplace issues cannot be resolved. Increasing the barriers to legitimate industrial action will mean that workplace issues go away.

22. GMB believes that this represents an unjustified and disproportionate restriction on the right to strike that will damage industrial relation.

23. GMB notes that the Consultation Paper and Impact Assessment on the proposed thresholds focus exclusively on the 40% threshold and do not consider the 50% turnout threshold. This ignores the practical difficulties unions face in contacting members by post in some sectors, especially where the workforce is fragmented and located at different workplaces across the sector concerned.

The damage to constructive industrial relations

24. The ability of unions to organise lawful industrial action is a key support to collective bargaining and constructive industrial relations. It ensures that employers take the views of their workforce seriously and engage in real negotiations.

25. Some of the wide ranging benefits that this approach brings in workplaces include:

· Family friendly policies

· Flexible working

· Policies more friendly towards disabled workers

· Policies more friendly towards LGBT members

· Safer workplaces

· Innovation and Change by promoting skills and training in workplaces

· Constructive negotiations to save jobs, particularly following the economic crisis of 2008

26. But all of these positive outcomes depend on equality of bargaining power which the present proposals will undermine. In most instances there is no need for workers to take industrial action. Unions manage expectations of members and develop solutions to problems through the process of collective bargaining. But sometimes an industrial action ballot is required. The ballot has an important role as it concentrates the mind of the employer on the issues and demonstrates the strength of feeling amongst the workforce. In most cases the holding of the ballot is sufficient to lead to engagement and settlement.

27. When industrial action takes place it is always as a last resort and is often the only way to resolve the dispute. Postal ballots are already expensive, and the risks to the workforce and their union of strike action are very significant including deductions from wages, the risk of dismissal, and very expensive interim injunction applications. Tighter scrutiny of the right to strike could turn neutral worker opinion into favouring unofficial actions which are much harder for unions, management, and ACAS to resolve.

Escalating Disputes

28. The proposals in the Trade Union Bill will be likely to escalate and prolong disputes:

· Employers will be encouraged to sit on their hands and wait to see if the threshold can be reached rather than address the underlying issues in the dispute

· Where thresholds are achieved this may raise members’ expectations and may result in a hardening of the union’s negotiating position making settlement harder to achieve

· The 4 month time limit for the ballot will encourage employers to sit out the dispute and refuse to negotiate in the knowledge that the union will have to incur the costs a new ballot. Unions will feel compelled to bring forward action in an attempt to reach settlement.

· ACAS are likely to find it harder to engage with parties and to develop settlements

International Standards

29. As indicated above the right to strike is a fundamental human right. The right is widely recognised at an international level:

30. In the Memorandum issued by the UK Government it has attempted to argue that thresholds still comply with the Convention and in particular Article 11. The Government has attempted to read across from the case of RMT v UK, a case which concerned a ban on secondary action, to justify the proposals. The Court in the RMT case had regard to the fact that the ban on secondary action had not been amended or removed by successive Governments. This was said to reflect a broad political consensus in support of the ban. The Court therefore considered that it was appropriate to apply a wide margin of appreciation to the national government. However such broad political consensus does not arise in respect of thresholds or the Trade Union Bill as this has been fiercely disputed since the Bill was announced.

31. Further, the 50% ballot thresholds affect all strikes and the 40% ballot threshold applies to a very wide range of public sector strikes. This is not a secondary aspect of Article 11 of the European Convention on Human rights, but is primary action which, as GMB understands it, is the very substance of trade union freedom protected in Article 11.

32. GMB notes that in ILO decision 2698 (Australia) the Committee for Freedom of Association found a 50% threshold requirement alone to be excessive and likely to hinder the right to strike particularly for large enterprises, see paragraph 225 of the decision. The decision by the Government not to allow strike ballots using methods that would be likely to generate increased participation than solely by voting by post are hard to understand in this context.

Democracy & Participation

33. GMB notes that whilst thresholds are to be imposed on unions for ballots no such equivalent is proposed for politicians. Abstentions are to be taken as no votes. This may encourage disengagement with the democratic process. Take a dispute with 45% in favour of a strike, 25% against, and 30% neutral. If all those for and against the strike vote the strike will go ahead. There is a 70% turnout and a 64% majority. But if the 25% abstain the outcome will mean that the 50% per cent threshold has not been achieved. This sort of tactical abstention vote could be a real possibility where the workforce is small and the groups have a good idea of the position. Administrative burdens, cost and increasing red tape

34. The red tape and increased cost of not only thresholds but of the political opt in/reporting and reporting requirements to the CO will significantly increase red tape and the cost of organisation for trade unions.

35. Union members are likely to lose out as resources are diverted to meeting arbitrary thresholds and increased training for reps and officers in order to navigate the new layers of red tape.

Wider Impact

36. GMB rejects the argument that industrial action should be restricted because it disrupts economic activity or the wider public. As the ILO Committee on Freedom of Association has reported in observation adopted in 2011 and published in the 101st ILC Session 2012 in a complaint concerning Western Australia:

"By linking restrictions on strike action to interference with trade and commerce, a broad range of strike action could be impeded. While the impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service "essential", and thus the right to strike should be maintained"

Future consultation

37. The government intends to reserve the right to add additional groups of workers to the ‘important workers’ category. GMB does not believe, that if this category comes into being, the human rights of millions of working people in the UK should be impacted without proper parliamentary scrutiny and public consultation.

38. The extension of the 40% threshold to workers involved in ancillary activities which support important public services is concerning. This will restrict the rights of many workers employed in private sector companies without adequate consultation.

Clause 4 – The voting paper

39. This has not been subject to consultation. There is no information as to how a reasonably detailed description of the trade dispute and other matters in the ballot paper is to be defined. A failure to provide such information is likely to be the basis for legal action, and in those circumstances it is important that the issue is subject to Parliamentary scrutiny.

Clause 5 – The result of the ballot

40. The notice of the ballot result to the employer and members will have to include information about whether each threshold was met.

Clause 6 – Information to be given to the Certification Officer

41. This requires that details of industrial action are to be included in the union’s annual return to the Certification Officer, including details of the ballot result. This appears to be a further step transforming the CO into a position increasingly concerned to investigate unions, their membership records and their balloting practices. This is at odds with the CO’s semi judicial role of adjudicating on internal union disputes.

Clause 7 – Notice of action

42. This requirement to give 14 days’ notice for industrial action is seen by GMB as a 14 day notice period for employers to organise agency workers to replace striking workings, we per the planned delegated legislation.

Clause 8 – Expiry of ballot mandate

43. The 4 month time limit for the ballot will encourage employers to sit out the dispute and refuse to negotiate in the knowledge that the union will have to incur the costs a new ballot. Unions will feel compelled to bring forward action in an attempt to reach settlement.

Clause 9 – Union supervision of picketing

44. The origin of the provision around picketing are based in the existing Code of Practice on Picketing. GMB sees no justification for putting this on a statutory footing.

45. Picket ‘supervisors’ would inevitably in some circumstances be ordinary trade union members: volunteers. Trade union membership is an aspect of private life and sensitive personal data under Section 2 of the Data Protection Act 1998 as well as being protected under the Employment Act 199 (Blacklisting) Regulations 2010. There are often good reasons why an individual wants to keep their trade union membership secret from employers and the police as shown by the blacklisting scandal in the construction industry.

46. The outcome for peaceful picketing is nothing to do with the stated aim of the Bill. There are already extensive criminal provisions against intimidation on the picket line. In the Carr Review the Association of Chief Police Officers said that the current legal framework was generally effective and did not seek more powers, just better guidance for the police (see pages 92 – 94 of the Review).

47. The new legislative provision targets indiscriminately unions and workers who picket peacefully, as well as those who do not. No other membership organisation which has a peaceful demonstration is required to police it as well or face dire consequences if it does not even if it is impractical to do so. This indicates the real purpose is to attack union organised industrial action across the board.

48. Further the right to picket is an aspect of freedom of assembly in Article 11 of the ECHR. No compelling reasons have been provided for these draconian measures.

Clauses 10 and 11 – Opting in to political funds and annual return to CO

49. GMB opposes the inclusion of changes to political funding within this Bill. This is direct intervention of the internal affairs of trade unions as independent and democratic organisations.

50. The longstanding convention of party funding changes being agreed on a cross-party basis has been rejected by the government. Such convention was adhered to by previous Tory governments, including the governments of Thatcher and Wilson.

51. These proposals will significantly impact on just one political party while doing nothing to regulate how private donors and companies - often with multiple shareholders - participate in politics. There is no shareholder opt in.

52. GMB members who pay 14p per week to the political fund, under these proposals, will have more hoops to jump through than millionaires who donate their personal fortune.

53. These measures will restrict unions’ rights to freedom of association and their ability to engage in political debate. The Bill changes this by individualising the process. The proposed changes will separate the member from the organisation and undermine the principle of collectivism which is essential to effective trade unionism. This runs against the Governments’ duty to respect the rights of workers and trade unions which is provided for in ILO Convention 87 Article 3:

"1. Workers’ and employers organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or impeded the lawful exercise therof."

54. A three month transition period to move all existing trade union members to an entirely new system of political funding is unreasonable and completely impractical, as is the suggestion that the ‘opt in’ must be in writing in an age when people communicate by phone, online and by text message.

Clause s 12 and 13 – Facility Time

55. Clause 12 provides that public sector employers provide information about facility time and the "direct costs" of doing so thus ignoring benefits to the employer. Clause 13 provides that there be a unilateral power to the Minister to impose limits on the amount of facility time and the purposes for which it can be used. This includes a power for minsters to rewrite legislation in its application to public sector employers and also a power to "modify" collective agreements. This is a unique development and it appears that the Government is acting in breach of ILO Convention 98 and also ILO Convention 151. The Labour Relations (Public Services) Convention 1978 provides that public sector trade unions have the right to workplace facilities and that these facilities are to be the subject of collective bargaining.

56. The net effect of this will be to undermine the ability of unions to represent members at work. It will interfere with the ability of the Scottish Parliament, the Welsh Assembly, and local authorities to manage devolved services and how to engage with their workers and trade unions. This will undermine effective working between employers and unions. This will also in many cases interfere with contracts and collective agreements which have been entered into voluntarily.

57. In addition, on 6 August 2015 the Government announced that it would put forward amendments to the Bill which would prevent public sector employers from running check – off. There has been no consultation with stakeholders on this or any assessment of the impact on employment relations. This again appears to be a breach of ILO Conventions 98 and 151. These do not exempt check-off arrangements from the scope of collective bargaining. There may be some administrative burden for the employer but this is easily managed and financial costs are often met by the union.

Clauses 14 – 17 – The Certification Officer

58. These clauses layout huge changes to the power and role of the Certification Officer, turning the post into an almost investigative agency for the trade union movement. The scope of the CO to investigate – without any complaint being raised - any aspect of trade union elections, trade union political funds, trade union amalgamations, trade union membership and information is worrying and raises significant constitutional issues. As commented above this will undermine an important position occupied by highly respected Certification Officers.

October 2015

Prepared 14th October 2015