Trade Union Bill

Written evidence submitted by the NASUWT, The Teachers’ Union (TUB 25)

The NASUWT is the largest union in the UK representing teachers and school leaders.

As the largest teachers’ union, the NASUWT requests the opportunity to discuss its written evidence with the Committee, particularly with regard to the implications arising from the provisions contained within the Trade Union Bill that affect trade unions and the provision of education in schools and colleges.

INTRODUCTION

1. This submission provides:

· general commentary on the proposals set out in the Trade Union Bill;

· comments on the specific clauses contained in the Trade Union Bill.

GENERAL COMMENTS ON THE TRADE UNION BILL

2. The NASUWT rejects entirely the proposals for trade union reform contained in the Trade Union Bill.

3. The provisions in the Bill are, in our view, disproportionate, discriminatory, ideologically-motivated and in breach of fundamental human rights as contained in national and international conventions and legislation.

4. The NASUWT believes that the proposed changes are completely unnecessary and are related to a long-standing ideological aversion to trade unions held by members of the Government, despite the fact that, or perhaps because, trade unions are representative of ordinary working people.

5. The provisions in the Bill stray beyond the commitments set out in the Conservative Party’s pre-election 2015 Manifesto and the NASUWT does not believe the Government has a mandate for delivering these reforms.

6. Furthermore, it should be noted that fewer than 30% of the electorate voted Conservative at the general election and therefore the majority of the electorate should be regarded as opposed to the measures set out in the Bill.

7. The NASUWT maintains that a number of the provisions on the face of the Bill represent a deliberate distortion of the pre-election Manifesto commitments and are, therefore, capable of being challenged and rejected by MPs and Peers.

8. The NASUWT believes that the proposed reforms constitute an attack on the fundamental human rights of working people to take industrial action and withhold their labour in line with various International Labour Organisation (ILO) Conventions, the UN Convention on Economic, Social and Cultural Rights, the European Social Charter and the European Convention on Human Rights.

9. The proposals seek to restrict, in particular, the rights of workers within the public sector. The NASUWT asserts that the right to strike is a fundamental right which should be enjoyed by all working people, regardless of whether they work in the public sector or any other sector. The NASUWT is particularly concerned by the discriminatory treatment of teachers working in the public sector, as compared with teachers working in the private (independent) sector.

10. The Trade Union Bill comes on top of a raft of measures to limit the ability of workers in the public sector to engage in collective action, lobbying and collective bargaining. The 2015 Global Rights Index, published by the International Trade Union Confederation (ITUC), has already placed on record serious concerns about restrictions to the rights of trade unions to campaign on behalf of workers as a consequence of the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014. According to the ITUC, infringement of workers’ rights currently places the UK on the same footing as countries such as Burundi, Georgia, Russia and Iran. [1]

Agency workers

11. The Government has also proposed to revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which prohibits employment businesses from providing temporary agency workers to employers facing industrial action. Agency workers would, therefore, supply the labour withheld by workers taking industrial action.

12. The Department for Business, Innovation and Skills (BIS) in September 2015 invited views on the proposal. The NASUWT’s response to that consultation rejected this proposal.

13. The ILO Committee on Freedom of Association has confirmed that, ‘the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term…constitutes a serious violation of freedom of association’. The inclusion of this measure in the Bill, to permit the use of agency workers to replace workers participating in strike action, is a clear and deliberate attempt to prevent strike action by trade unions and a violation of the UK’s international commitments and obligations.

14. The ILO consider that the replacement of strikers may only be justified ‘in the event of a strike in an essential service….and when a situation of acute national crisis arises’. However, the Government’s proposals as set out in the Bill do not refer to ‘essential’ services as defined by the ILO and therefore the extension of provisions to use agency workers to replace striking workers does not apply.

COMMENTS ON SPECIFIC CLAUSES IN THE TRADE UNION BILL

Ballot thresholds for industrial action

Clause 2 – Ballots: 50% turnout requirement

15. This clause imposes a new statutory requirement on unions in respect of the threshold to be satisfied before industrial action can be taken.

16. The Government’s proposals are predicated on a flawed understanding of the nature of industrial action taken by trade unions and a failure to recognise that industrial action by trade union members is taken as a last resort where attempts at resolving matters through dialogue and negotiation have failed.

17. This provision of the Bill seeks to advance the Government’s aim of preventing disruption as a result of industrial action by unions. However, this proposal on ballot thresholds will not prevent grievances culminating in lawful trade disputes or prevent industrial action being taken by trade union members following lawful ballots.

18. Instead, the Government’s proposals are intended to undermine the right to strike, and to weaken the position of workers that have legitimate workplace grievances and who seek to take industrial action in order to defend their collective interests at work.

19. The NASUWT strongly questions the need for this clause and its compliance with recommendations made by the ILO’s Committee of Experts and the ILO’s Committee on Freedom of Association, which have both concluded that account should be taken only of votes cast in a ballot. By extending the requirement on thresholds to those eligible to vote, the Bill should be regarded as disproportionate and excessive.

20. The Government has failed to demonstrate why this measure in respect of ballot thresholds is necessary. [2] Instead, this appears to be a measure that is driven by ideological concerns rather than the promotion of good industrial relations.

21. The Government’s proposals fail to recognise that industrial action called by unions will, regardless of the ballot turnout, require the support of trade union members. Trade union members are free to decide whether or not take part in industrial action, regardless of the level of turnout in a ballot. There is simply not a shred of evidence that the majority of trade union members are coerced into participating in industrial action as a result of the will of a minority of members.

22. The NASUWT strongly questions the need for this clause at all and whether this measure is consistent with other obligations on the right to strike.

Clause 3 – Ballots: 40% support requirement in important public services

23. This clause imposes a new statutory requirement on unions in respect of the threshold to be satisfied before industrial action can be taken in particular areas of the public services described by the Government as ‘important public services’.

24. The Government’s proposals are predicated on a flawed understanding of the nature of industrial action taken by trade unions and a failure to recognise that industrial action by trade union members is taken as a last resort where attempts at resolving matters through dialogue and negotiation have failed.

25. This provision of the Bill seeks to advance the Government’s aim of preventing disruption as a result of industrial action by unions. However, this proposal on ballot thresholds will not prevent grievances culminating in lawful trade disputes or prevent industrial action being taken by trade union members following lawful ballots.

26. The Government’s proposals are intended to undermine the right to strike, and to weaken the position of workers that have legitimate workplace grievances and who seek to take industrial action in order to defend their collective interests at work.

27. The Government has failed to demonstrate why this measure in respect of ballot thresholds is necessary. Instead, this appears to be a measure that is driven by ideological concerns rather than the promotion of good industrial relations.

28. The NASUWT strongly questions the need for this clause at all and whether this measure is consistent with obligations on the right to strike and protection from discrimination under European Convention Article 10 (freedom of expression), Article 11 (freedom of assembly and association) and Article 14 (prohibition of discrimination).

29. The ILO Freedom of Association Committee confirms that the right to strike may be restricted or prohibited only in ‘essential’ services. ‘Essential services’ are defined by the ILO as those services where interruption ‘would endanger the life, personal safety or health of the whole of part of the population’. [3] Such a definition is therefore not relevant to the provision of education to children and young people.

30. The NASUWT notes that the Bill describes education as an ‘important public service’; however, the use of the adjective ‘important’ does not afford the same meaning as ‘essential’ as described under existing international conventions and obligations, including Article 11 of the European Convention.

31. It appears that this provision in the Bill is deliberately intended to circumvent international conventions and obligations which would be to the detriment of the UK’s international standing, as well as being damaging to industrial relations domestically.

32. The definition of ‘important public services’ is also ambiguous, open to challenge and, according to the recent report of the Parliamentary Regulatory Policy Committee, ‘not fit for purpose’. Furthermore, the reference to ‘important public services’ is not consistent with the Conservative Party’s pre-election 2015 Manifesto commitment which referred explicitly to ‘essential public services’.

33. The Bill confirms that regulations brought under clause 2D may specify only certain services as meeting the definition of ‘important public services’. These services will include ‘education of those aged under 17’.

34. However, the Bill does not provide a definition of what may be included within the scope of ‘education of those aged under 17’ and is therefore open to abuse.

35. There is a danger over the ambiguity with regard to this provision in the Bill, which will have particular implications for employers in relation to school and college-based services which are provided partially for children aged under 17, or for those who are aged 17 or over. For example, in the context of provision within an FE college which is shared by students aged 14-16 but which is also available to older students, it is unclear from the Bill whether such provision would fall within the scope of the threshold governing ballots in respect of education of those aged under 17. Indeed, the proposal as set out in the Bill would create greater confusion for employers and could lead to unnecessary and potentially costly disagreements between employers and unions.

36. The specific proposals set out in the new clause 2B, which seek to impose the additional 40% threshold requirement onto those engaged in ‘activities that are ancillary to the provision of important public services’ would potentially extend the scope of this additional threshold to include all parts of the public sector and to organisations in the private and voluntary sectors that supply goods and services to the public sector. In short, the consequence of this provision would be indiscriminate, disproportionate and contrary to the stated intent of the Bill.

37. For example, it is likely that the Bill could be applied to employers that do not include public sector employers, but which provide goods and services to so-called ‘important’ public services (e.g. the private sector commercial provision of school meals). The scope of providers of goods and services, ancillary to the provision of important public services, is wholly unclear from the legislation and is potentially disruptive and excessive.

Information requirements relating to industrial action

Clause 4 – Information to be included on voting paper

38. This clause amends the existing legislation in section 229 of the Trade Union and Labour Relations (Consolidation) Act 1992 by requiring additional information to be included on ballot papers that are sent to members.

39. The Government provides no satisfactory rationale or justification for requiring additional information - including the type or types of industrial action, the period or periods within which the industrial action is expected to take place – to be included on ballot papers.

40. The Government has provided not one shred of evidence that the information, currently provided by unions on ballot papers, is inadequate or misleading to union members who are the principal audience for ballot papers.

41. Furthermore, it should be quite clear that trade union members would neither vote in support of industrial action, nor participate in industrial action, if they were unclear about or did not support the aims of the industrial action.

42. The proposal to require additional information to be included on ballot papers is likely to give rise to unintended consequences which the Government does not appear to have considered.

43. Where trade unions are required to spell out in detail what specific forms of industrial action will be taken and when each action will be taken, this is likely to result in unions allowing themselves additional scope and latitude to pursue as wide a set of actions as may be necessary prior to the expiry of the ballot and in order to minimise the potential for any industrial action being subsequently deemed ultra vires. This would lead to greater scope for disruption rather than less.

44. Furthermore, this provision of the Bill, if enacted, has the potential to undermine constructive dialogue between unions and employers which might, in recognition of progress made, negate the need for particular actions to be taken. Instead, unions may be more inclined to proceed with industrial action until matters in dispute are resolved fully.

45. The Bill fails to recognise that trade unions adapt industrial action to recognise and respond to positive progress made during the management of individual trade disputes.

46. The Bill fails to recognise that the willingness of trade unions to continue to engage in dialogue and negotiation during the course of a trade dispute and where industrial action has been scheduled but not yet taken in order to resolve matters without the need for further escalation, is currently welcomed by employers.

47. The Bill in its current form could undermine dialogue and negotiation between unions and employers and would run counter to a key aim of the Bill by increasing rather than preventing disruption as a result of industrial action.

48. For example, if at any stage of a dispute it was possible to resolve matters without industrial action, the NASUWT would seek to suspend industrial action which had been notified to the employer in order to assist further negotiations. This would be compromised by the requirement in the Bill for unions to commit, prior to balloting, to a schedule of industrial action measures and where an arbitrary four-month timescale is imposed on the expiry of the mandate for industrial action.

49. It should also be noted that the NASUWT seeks to engage positively in referrals to ACAS conciliation. Such attempts at conciliation between the union and an employer may often last much longer than four months – i.e. beyond the proposed time limit for expiry of the mandate for industrial action. The proposals on the face of the Bill would impact adversely on the ability of unions and employers to engage in conciliation in future. Conciliation as a means of resolving a dispute and preventing disruption as a result of industrial action would therefore be prejudiced by the provisions in the Bill.

50. The Bill would also make the de-escalation of industrial disputes far more difficult to achieve.

51. The NASUWT therefore strongly questions the need for this clause at all and concludes that it will be counterproductive to the Government’s stated aim of preventing disruption.

Clause 5 – Information to members, etc. about results of ballot

52. This clause amends the existing legislation in section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992 by requiring for additional information to be included in information published to members in relation to the result of a ballot.

53. The NASUWT notes that the information required to be published by trade unions is intended to include details of whether the number of votes cast is at least 50% of those entitled to vote in the ballot and that, in the case of ‘important public services’ whether or not the number of individuals voting in favour of industrial action is at least 40% of those entitled to vote in the ballot.

54. The NASUWT strongly questions the need for this clause and, given the provisions of this clause, its compliance with recommendations made by the ILO’s Committee of Experts and the ILO’s Committee on Freedom of Association which have both concluded that account should be taken only of votes cast in a ballot. By extending the requirement on thresholds to those eligible to vote, the Bill should be regarded as disproportionate and excessive and outwith international commitments and obligations.

55. The proposed requirement to include the information proposed on the result of the ballot could, in some instances, compromise the secret nature of the ballot, particularly in small units (including many schools) where it would be relatively easy for an employer to identify individual trade union members who have participated in a ballot and who have voted for or against the industrial action. This measure would result in increased levels of employer intimidation and victimisation of workers and further damage industrial relations.

Clause 6 – Information to Certification Officer about industrial action etc.

56. This clause amends the existing legislation in section 32 of the Trade Union and Labour Relations (Consolidation) Act 1992 by requiring for additional information to be returned annually to the Certification Officer in respect of industrial action taken by the trade union.

57. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional administrative burdens onto trade unions.

58. Given the extensive powers already available to the Certification Officer, there is no justification for the further extension of powers as set out in the Bill.

59. The NASUWT strongly questions the need for this clause at all which appears to be consistent with the Government’s view that trade unions are potentially criminal organisations that require state supervision. This is a view entirely consistent with the position of despotic governments around the world which, according to the International Trades Union Confederation, are ‘the worst countries in the world for workers’.

Timing and duration of industrial action

Clause 7 – Two weeks’ notice to be given to employers of industrial action

60. This clause amends the existing legislation by extending the period for providing notice to employers of industrial action from seven days to fourteen days.

61. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional administrative burdens onto trade unions.

Clause 8 – Expiry of mandate for industrial action four months after date of ballot

62. This clause amends the existing legislation by limiting the potential life of an industrial action ballot to four months.

63. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional burdens and to prevent industrial action by trade unions.

64. The NASUWT does not believe that imposing an arbitrary four-month time limit for expiry of a ballot mandate is justified under Article 11 of the European Convention. This concern is further compounded by the provision in the Bill (clause 8 (1)) which indicates that the four-month period shall commence ‘on the first day when a voting paper is sent to any person entitled to vote in the ballot’. This is clearly intended to further deny trade unions the opportunity to undertake industrial action measures.

65. The NASUWT also argues that it is also unreasonable to apply a time limit that includes a period (i.e. before a ballot has closed) when members of a trade union would not be able to take part in any industrial action. It is excessive and disproportionate for the clock to be triggered before the outcome of a ballot is known.

Picketing

Clause 9 – Union supervision of picketing

66. This clause amends the Trade Union and Labour Relations (Consolidation) Act 1992 by introducing new requirements on picketing.

67. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional burdens and to prevent industrial action by trade unions.

68. The provisions on the face of the Bill do not satisfy the recommendations of the ILO’s Freedom of Association Committee which has ruled that picketing should only be restricted or interfered with where there is a threat to workers or to public order. The Government has provided no evidence of picketing which threatens the safety of workers or public order.

69. The proposals on the face of the Bill seek to discriminate against trade union members participating in forms of collective public protest, in a manner that does not apply to other individuals or groups. The NASUWT therefore argues that the provisions regarding picketing are discriminatory and potentially unlawful in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms under Article 10 (freedom of expression) and Article 14 (prohibition of discrimination), as well as ILO Conventions 87 and 111 on freedom of association and protection from discrimination in employment.

70. The NASUWT is further concerned that the provisions in the Bill, whilst targeting trade union members, fail to address actions by employers and their agents to incite and provoke violence or to intimidate workers engaged in lawful industrial action. The NASUWT has extensive examples of intimidation of its members by employers.

Application of funds for political objects

Clause 10 – Opting in by union members to contribute to political funds

Clause 11 – Union’s annual return to include details of political expenditure

71. These clauses impose additional legal requirements on unions in relation to members contributing to political funds and reporting on such expenditure.

72. The Government’s proposals are predicated on a flawed understanding of the purpose of trade union political funds and the statutory provisions regarding their use.

73. The NASUWT, like the majority of trade unions in the UK, is not affiliated to any political party. The NASUWT does not provide financial support to any political party and is proud of its political independence.

74. The rules governing the use of the political fund are set out in the NASUWT Rules of Association. Members of the Union are therefore provided with clear information about the political fund and its use.

75. Given the requirement for trade unions to engage democratically with their members in order to amend provisions in their rule books and to have their political fund rules approved by the Certification Officer, the Bill also seeks to place trade unions outside the law given the unwarranted and unreasonable restrictions concerning the timescale (within three months of the legislation coming into force) for compliance with the new measures.

76. The retrospective application of these provisions in the Bill are evidently designed to increase the administrative burdens on trade unions.

77. The requirement as contained in draft clause 85 seeks to redefine the contractual relationship between unions and their members. The Government has provided no justification for the imposition of a requirement for union members to either pay a separate levy when contributing to the political fund or to receive a rebate where they have not agreed to opt in to the political fund.

78. Such interference in the internal organisation and protocols of the union is unnecessary and oppressive and, the NASUWT believes, is contrary to Article 1 of the European Convention.

Facility time

Clause 12 – Publication requirements

Clause 13 – Reserve powers

79. These clauses affect the collection and publication of financial and other data relating to trade union facility time and provides for an unlimited reserve power for a Minister of the Crown to impose such additional requirements as s/he sees fit in relation to facility time arrangements.

80. Notwithstanding the existing provisions in the Trade Union and Labour Relations (Consolidation) Act 1992, ILO Conventions 135 and 151 also require that the level of facilities for trade union representatives should be appropriate in order to enable them to carry out their functions promptly and efficiently. This is further expanded upon in the context of EU Directives, including EU Council Directive 89/391 on measures to encourage the health and safety of workers which includes the right to time for health and safety representatives.

81. The proposal to allow a reserve power for a Minister of the Crown at any time to override existing statutory and contractual rights and thereby reduce or remove facility time is unjustified and contrary to rights conferred under existing international obligations.

Certification Officer

Clause 14 – Investigatory powers etc.

Clause 15 – Enforcement by Certification Officer of new annual return requirements

Clause 16 – Further powers of the Certification Officer where an enforcement order is made

Clause 17 – Power to impose levy

82. These clauses amend the existing legislation in the Trade Union and Labour Relations (Consolidation) Act 1992 by increasing substantially the investigatory powers available to the Certification Officer, and to attribute to the Certification Officer the power of a court.

83. The Government has failed to provide any rational case for the introduction of these measures, which are designed to interfere in the internal organisation, protocols and independence of trade unions in a manner that is unnecessary, oppressive and contrary to Article 1 of the European Convention.

84. The provisions within the Bill constitute interference by the Government, through the office of the Certification Officer, in trade union matters that should be a matter for members of the union alone to determine, including agreement of union rules, organisation, administration and activities. These provisions are not consistent with the provision of Article 2 of ILO Convention 98 (Freedom of Association).

85. The Bill gives sweeping powers to the Certification Officer, including the power to undertake investigations without the need for a complaint, and the power to impose sanctions which give the declarations the status of a court order but without the safeguard of the judicial system. The provisions are contrary to basic principles of natural justice and appear contrary to the European Convention Article 1 and Article 6.

86. The power of the Certification Officer to impose a levy payable to funding the office of the Certification Officer is unreasonable and further compromises the independence of the Certification Officer.

87. The proposal to require trade unions to pay the Certification Officer for the cost of any investigations undertaken, regardless of the outcome of any investigation, and to give the Certification Officer the power to determine the nature, scope and methodology of any investigations conducted is open to partisan abuse.

88. The proposals to extend the role of the Certification Officer could lead to substantial interference into trade union organisations without any recourse or rights of redress available to unions. If such a level of Government interference in other organisations was proposed in this country, it would be roundly condemned by all parties.

89. Given the powers already available to the Certification Officer, there simply is no justification for the extension of powers as set out in the Bill.

October 2015


[1] ITUC (2015), The 2015 ITUC Global Rights Index – The World’s Worst Countries for Workers, p27-28

[2] Regulatory Policy Committee opinion: consultation 1A ‘Ballot thresholds in important public services, Department for Business, Innovation and Skills’ 18 August 2015

[3] Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth (revised) edition, 2006 (paragraph 576)

[3]

Prepared 14th October 2015