Trade Union Bill

Written evidence submitted by the Communication Workers Union (CWU) (TUB 32)

Trade Union Bill

Introduction

1. The Communication Workers Union (CWU) is the largest union in the communications sector in the UK, representing nearly 194,000 employees in the postal, telecoms, financial services and related industries.

2. The CWU believes that the Trade Union Bill is undemocratic, unjustified and in breach of international labour and human rights laws. It represents a significant restriction of the rights of workers and will wrap trade unions in costly red tape. There is no evidence the proposals are necessary or proportionate to any identifiable problem, and it is therefore difficult to avoid the conclusion that the proposals are politically motivated.

3. The Bill has been widely condemned by human rights groups including Amnesty International and the British Institute of Human Rights as a major attack on civil liberties in the UK. It is opposed by many other organisations, including the Chartered Institute of Personnel and Development which has labelled the proposals outdated and counter productive.

4. The Bill will undermine workplace relations and prolong industrial disputes. It presents a major barrier to creating the high wage, high skill, productive economy the Government claims it wants to achieve. This is a concern shared by mainstream commentators, with the Financial Times arguing that the Bill risks fomenting more workplace disruption, that it is disproportionate, and that more worker bargaining power would restore some overdue wage growth [1] .

Ballot thresholds for industrial action

5. T he proposed strike ballot threshold s [2] contained in the Bill are inconsistent with a free and democratic society and conflict with the Government’s obligations under international law, including International Labour Organisation (ILO) Convention 87 on freedom of association and the right to organise. Restricting the right to strike will create a serious imbalance of power between employers and workers, which will undermine workplace relations and prolong industrial disputes. The proposed ballot thresholds are unnecessary in protecting public health and safety given the minimum service level agreements in place for essential services during strike action.

6. Rather than making strike laws fair, we believe that the proposals will deny workers a voice in defending their interests in the face of government austerity and weakened employment rights. As we have said above, in the current political climate, it is therefore hard to avoid the conclusion that the proposals are politically motivated. They will further disenfranchise working people already struggling with job insecurity and low pay, and this will bring damaging consequences for public services and the wider economy. It will do nothing to promote the high wage, high skill, economy the Government has stated that it wants to achieve in the pursuit of greater productivity.

7. Curtailing the right to strike will remove an effective spur to reaching a negotiated settlement, extending industrial disputes and aggravating workplace grievances. This in turn will be harmful for public services and the wider economy. The Regulatory Policy Committee [3] (RPC) has expressed similar concerns about the shortcomings of the Government’s impact assessment, recommending that ‘Further analysis would be useful of how the restriction of strikes might affect the distribution of income between workers and employers, industrial relations generally and employee motivation in the longer term’ [4] .

8. The CWU also questions the necessity of the proposals given that the number of days lost through industrial action has remained at historically low levels for the last twenty years, and the level of strike action is lower in the UK than in many other European countries. The latest available figures show that on average, 24 days were not worked per 1,000 employees due to industrial action in the UK between 2009 and 2013, compared with 171 days in France, 82 days in Denmark, and 65 days in Spain [5] .

9. The Financial Times recently questioned the justification for the proposals given the low level of strike action in the UK, saying that ‘Britain does not have a problem with strikes. A right to lay down tools may be enshrined in law, but it is one seldom exercised. The loss of 788,000 days to strikes barely registers when set against the 3m to 6m typical in the 1980s, or 130 million days typically lost to illness [6] .

10. The balance of power between unions and employers is already weighted too heavily in favour of employers, and as an open letter signed by over a hundred industrial relations academics recently stated, ‘trade unions in Britain are not too strong, but too weak’ [7] . Rather than introducing tighter restrictions on strike ballots, we believe the Government’s priority must be to encourage positive workplace relations, which will create a more motivated, committed workforce and help to address the UK’s relatively low productivity performance [8] .

11. The CWU rejects the Government’s claim that the new rules will introduce a fairer democratic mandate for strike action [9] . By effectively treating abstentions as ‘no’ votes, we regard the proposed thresholds as being distinctly undemocratic and believe that they conflict with the Government’s obligations under international law as set out in ILO Convention 87 on freedom of association and the right to organise. They also conflict with the European Social Charter which guarantees freedom to form trade unions to defend economic and social interests, and the European Convention on Human Rights on the right to freedom of association and assembly.

12. Similar ballot thresholds can only be found in Bulgaria and Romania, both of which breach international law. T he ILO has rejected a claim from the Bulgarian government that its strike ballot threshold was ‘liberal in character’, and the Bulgarian government has been urged to change the law ‘ in order to bring it into closer conformity with the principles of freedom of association . [10]

13. If the Government was interested in improving workplace democracy it would allow unions to give their members the option of taking part in ballots through secure workplace and electronic balloting alongside the current postal system. This would make it easier for union members to vote and is likely to considerably increase participation in strike ballots.

14. The Government must also consider that grievances amongst workers are likely to manifest themselves in other ways in the absence of an avenue for legitimate protest. Restricting the right to strike will lead to a frustration amongst workers with a genuine concern or grievance that their legitimate aims are being denied to them by law and this will mean more unofficial disputes that in reality a trade union may have no control over. This will not be conducive to better industrial relations.

New information requirements relating to industrial action

15. There are already extensive obligations on trade unions to provide detailed information to employers in relation to industrial action, and we see no justification or purpose in introducing further information requirements. The requirement to indicate on the voting paper the period within which the industrial action is expected to take place will be extremely challenging for trade unions given that it is often difficult to predict the timing of industrial action.

16. The new duty to require a trade union to include details of industrial action in its annual return to the Certification Officer (CO) is simply placing additional burdens on unions and no convincing rationale has been put forward by the Government to justify this.

17. Overall, we believe these rules will place additional costs and constraints on trade unions pursuing legitimate aims on behalf of their members. They will create new avenues for employers to prevent industrial action, or to claim damages after the event, on the basis of minor infractions at a time of growing insecurity in the world of work.

Timing and duration of industrial action

18. The requirement to give employers 14 days’ rather than 7 days’ notice of industrial action will assist employers in putting contingency plans in place during periods of strike action. This combined with the information requirements on the period of action, and the separate proposals to permit the use of agency workers to cover for striking workers [11] , will further restrict the right to strike by enabling employers to bring in a replacement workforce. In our view, this amounts to a clear infringement of the right to strike, which conflicts with the Government’s obligations under international and human rights law, including ILO convention 87 on freedom of association.

19. The expiry of a mandate for action four months after the date of the ballot will create substantial legal and administrative costs for unions , who already spend significant sums on ballots . T here are likely to be unintended consequences of limiting the lifetime of a ballot , such as creating an incentive for workers to take more action in a short space of time . This will be unhelpful to employers and damaging for industrial relations . Overall these proposals represent unnecessary additional hurdles and financial burdens which will curtail the ability of unions to function effectively in the interests of working people .

Picketing

20. We strongly oppose the Government’s proposals to further restrict the right to picket and t here is no evidence of a problem in relation to unions picketing in the UK today.

21. The Government’s proposals are disproportionate as they would see trade unions potentially lose protection from tort liabilities for minor infractions. Forcing individuals to wear armbands and to register with the police represents a fundamental attack on civil liberties . The Government is silent about the intimidation of workers by employers in relation to strike action , which the CWU has evidence of. Given that the proposals are ba sed purely on one- sided , anecdotal evidence , we believe that they have no credibility .

22. Trade unions must already comply with the provisions set out in the statutory Code of Practice on Picketing (which places significant and detailed requirements on trade unions and their members) with unlawful picketing regulated by both criminal and civil law. In making its case the Government has failed to present any substantiated evidence of intimidation in relation to picketing. Indeed, the Regulatory Policy Committee’s impact assessment states, "most picketing action taken by unions appears to adhere to the guidelines set out in the Code." [12] We therefore see no legitimate case for the Government to make aspects of the Code legally enforceable or to create new criminal offences such as an offence for "intimidation on the picket line", which have been the subject of wider Government proposals under consultation.

23. We also believe that the wider proposal to require unions to publish their picketing and protest plans , which has again been the subject of consultation, is an attack on basic civil liberties and freedom of expression. It represents an unjustified level of monitoring of legitimate union activities, including the use of social media , which is not applied to other forms of protest in Britain. We also question why the proposals do not include a requirement for employers to report on their plans during a dispute, including communications with their workforce and whether they intend to use age ncy workers as strike-breakers, which may have public safety implications .

24. Overall the Government’s proposals to further restrict the right of workers to picket in defence of their jobs and livelihoods represent s an attack on basic human rights and the right to freedom of expression and assembly in particular.

Opting in by union members to contribute to political funds

25. We are firml y opposed to the se proposal s , including the (apparent) require ment for new and existing trade union members to opt in to union political funds within three months of the Act (though the Bill and the explanatory notes are unclear on this point) , and the lapsing of the opting-in notice after 5 years. We believe that the proposals are designed to eradicate the funding available to trade unions for the conduct of political activities , thereby eliminating their political influence . Trade unions are democratic organisations and they should have reasonable scope to further their members’ interests politically .

26. T he proposals also appear to be designed to weaken the Labour P arty through significantly reduce d trade union financial support. This will be hugely damaging for the strength of democracy in the UK, weakening political engagement and silencing legitimate political opposition and debate .

27. In our view, t h is interference of the Government in the internal affairs of a trade union is contrary to the right to freedom of assembly and association under Article 11 of the European Convention on Human rights and Article 5 of the European Social Charter. It also contravenes the Government’s duty to respect the right of workers and trade unions, as set out in ILO Convention 87, article 3.

Union’s annual return to include details of political expenditure

28. We firmly reject the proposals to require unions to include detailed information on expenditure from political funds in the annual return to the Certification Officer , and the ability of the CO to impose a financial penalty on unions for compliance failures . These requirements will create costly and debilitating new administrative burdens for trade unions for no justifiable reason .

Facility time

29. The CWU strongly opposes the proposals regarding facility time in the public sector, which would permit the G overnment to introduce regulations that would restrict rights to union facilities, and cap the percentage of the employers’ pay bill that is used for facility time. The proposals would also give the G overnment the power to modify collective agreements . T his is the first time the British G overnment has sought the power to rewrite collective agreements of which it disapproves.

30. The introduction of a cap will reduce the capacity of trade unions to represent their members and resolve workplace issues, which will damage industrial relations and prolong disputes. We believe this proposal also conflicts with EU law, which protects the rights of health and safety reps to paid time off for their duties and training and the rights of union reps to paid time off during consultations on collective redundancie s. The proposal s to restrict rights to union facilities and to rewrite collective agreements are an attack on trade union and human rights, and a clear breach of the ILO conventions and the European Convention on Human Rights.

Certification Officer

31. We strongly reject the proposals to extend the role, remit and powers of the Certification Office (CO) , which will enable the CO to investigate and take action against a trade union on the basis of information from any third party, and with out the need for an application or complaint from a member. We regard this as a completely inappropriate measure which will leave trade unions open to investigation as a result of vexatious claims from the media, disgruntled members of the public, and employers who will risk no legal costs in raising a complaint in this way. The new i nvestigatory powers represent a major new intrusion by the State into union affairs and they will deter people from joining trade unions for fear of discrimination, victimisation or blacklisting.

32. The new powers will also enable the CO to impose a fine on a trade union of up to £20,000 for failing to take particular action within a certain timescale. This is completely disproportionate to any identifiable problem and will present significant additional costs for trade unions given the difficulties and the expense of complying with the new rules.

33. We also reject the proposal to impose a levy on trade unions to cover the CO’s costs. It is unclear what these costs will be at this stage but they are likely to be significant. The CWU believes it is not the responsibility of our members to fund what, in our view, is an ill-conceived role that the government intends the CO to have .

October 2015


[1] UK government crosses the road to pick a fight, Financial Times, 14 September 2015, http://www.ft.com/cms/s/0/e7a25a76-5acc-11e5-a28b-50226830d644.html

[2] The proposals require a 50% turnout in all industrial action ballots, and 40% of those entitled to vote must be in favour of industrial action in certain essential public services.

[3] The Regulatory Policy Committee provides the Government with external, independent scrutiny of new regulatory and deregulatory proposals and was appointed by Government on 21st July 2015 as the independent body verifying the costs and savings of changes in law that affect business and civil society organisations.

[4] Ballot thresholds in important public services, RPC opinion, 18th August 2015 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/454855/RPC15-BIS-2402__3010__-_Ballot_thresholds_in_important_public_services_-_IA_c__-_opinion.pdf

[5] Days not worked due to industrial action, 2009 – 2013, European Trade Union Institute, January 2015, http://www.etui.org/Topics/Trade-union-renewal-and-mobilisation/Strikes-in-Europe-version-2.1-January-2015#indicatorsused

[6] UK government crosses the road to pick a fight, Financial Times, 14 September 2015,

[7] Trade union bill not backed by evidence, Guardian Letters, Monday 17th August 2015, accessed at: http://www.theguardian.com/law/2015/aug/17/trade-union-bill-not-backed-by-evidence

[8] UK output per hour is 17% below the G7 average, 27% below France, 28% below Germany and 31% below the US, as set out in the Government’s productivity plan ‘Fixing the Foundations’, HM Treasury, July 2015 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/443897/Productivity_Plan_print.pdf

[9] New legislation to make strike laws fair for working people https://www.gov.uk/government/news/new-legislation-to-make-strike-laws-fair-for-working-people

[10] Tories 40% threshold for industrial action ballots breaches ILO principles, 22 January 2015, Campaign for Trade Union Freedom http://www.tradeunionfreedom.co.uk/tories-40-threshold-for-industrial-action-ballots-breaches-ilo-principles/

[11] In connection with the Trade Union Bill, the Government is proposing to enable employers to hire agency workers to replace striking workers through the removal regulation 7 in the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Conduct Regulations) .

[11]

[12] Department for Business, Innovation and Skills, Impact Assessment: Tackling intimidation of non-striking workers (consultation impact assessment), July 2015, p. 7.

Prepared 20th October 2015