Trade Union Bill

Further written evidence submitted by Professor Keith D Ewing, Professor of Public Law, King’s College London (TUB 37)

1 I refer to the recently tabled government amendment on the check off. This gives effect to the announcement on 6 August 2015 of the government’s intention to ‘abolish the check off across all public sector organisations’, as part of ‘curtailing the public cost of ‘facility time’ subsidies’. These latter proposals were justified in the following terms:

Currently – under the check off process – many public sector workers who are union members have their subscriptions taken directly from their salary, administered by their employer. This was a practice introduced at a time when many people didn’t have bank accounts, and before direct debits or digital payments existed as a convenient and secure way for people to transfer money.

The removal of check off will modernise the relationship between employees and their trade unions, while removing the burden of administration from the employer. The move also gives the employee greater control over their subscription, allowing them to set up their own direct debit with their chosen trade union, and giving them greater consumer protection under the Direct Debit Guarantee. [1]

2 The reasons given by the government for the ban on collective bargaining in relation to the check-off are wholly unconvincing. Whether or not people have bank accounts is as irrelevant to the way they pay their trade union subscription as it is the way they pay their income tax. The check-off system provides an easy and convenient way for workers to pay their subscription to their union at minimal or no cost to their employer, who will often charge the union a small administration fee for the expense incurred in dealing with the practice. The benefit to individuals was recently acknowledged by the High Court, in a case relating to the withdrawal check-off facilities in the civil service. [2] In giving judgment, Mr Justice Supperstone said that

I am not impressed by the argument that check off is only or primarily for the benefit of the union as such, rather than for its members in their capacity as employees. It seems to me that there is a real benefit to employees in the administrative convenience of not having to make their own arrangements for payments each month, or having to set up a direct debit or standing order and then change it or replace it from time to time as may be necessary. Moreover,

the benefit to the union in the arrangement consists in part in the savings in time and cost in not having to undertake the administrative exercise of collecting payments individually from members. Any cost benefit to the union is necessarily a benefit to its members as such and in their capacity as employees. It also seems to me that an efficient and secure system of subscription collection for a union is in the interest of all its members. Each member benefits from the efficient and secure collection of dues from other members and check-off benefits each member in that way. [3]

3 Quite apart from the foregoing, the new clause invites questions about the government’s treaty obligations, questions that would be easier to answer were ministers to publish the advice they have presumably received that there is no incompatibility with international law. Check-off arrangements are typically regulated by voluntary collective agreements, freely entered into by employers and trade unions. The government is proposing in effect to prohibit collective bargaining about check-off (and incidentally to rewrite existing collective agreements relating to check-off). [4] This conflicts with ILO Conventions 98, art 4, and 151, art 7, by which the British government accepted an obligation to promote collective bargaining, both generally (Convention 98), and in the public sector in particular (Convention 151).

4 It is true that neither of these latter provisions deals specifically with collective bargaining about check-off arrangements specifically. Nevertheless such arrangements clearly cannot be excluded, and their inclusion is strongly implied by ILO Convention 154, which defines collective bargaining to include negotiations between an employer and a workers’ organisation for ‘regulating relations between employers or their organisations and a workers’ organisation or workers’ organisations’. In any event, it is made abundantly clear by the jurisprudence of the ILO supervisory bodies that a refusal to bargain over check-off arrangements is incompatible with the government’s obligations under the foregoing treaty provisions. I refer to a long-running case before the Committee of Experts from Congo. In 2010 the Committee reported that

since the check-off system was abandoned in 1991, there has been no procedure for deducting trade union dues from workers’ pay. According to the Government, in practice, all unionized workers are expected to pay their dues to the trade union office. The Committee once again notes with regret that the Government has still not specified whether the abandonment of the check-off system in 1991 had the effect of barring trade unions from negotiating procedures allowing trade union dues to be deducted from members’ pay. The Committee once again reminds the Government that the deduction of trade union dues by employers and their transfer to the unions is not a matter that should be excluded from the scope of collective bargaining and requests the Government to indicate whether the abolition of the check-off system in 1991 has led to such an exclusion. [5]

5 But in addition to penalizing individual employees, and in addition to clearly violating international labour standards, there is an even more important consideration that requires compelling justification for this amendment, justification we have yet to hear. For what possible benign reason in a free society should trade unions and employers effectively be banned by the State from entering into a voluntary agreement about the collection of subscriptions? And for what possible benign reason in a free society should the State have the power to rewrite voluntary collective agreements about the collection of trade union subscriptions?

October 2015


[1] Cabinet Office, New Steps to Tackle Taxpayer-Funded Support to Trade Unions, 6 August 2015: https://www.gov.uk/government/news/new-steps-to-tackle-taxpayer-funded-support-to-trade-unions.

[2] For an attack in facilities arrangements in the civil service under the Coalition government (2010-2015), see A Bogg and K D Ewing, The Political Attack on Workplace Representation – A Legal Response (Institute of Employment Rights, 2013) – this raises a number of concerns about compatibility with ILO Conventions.

[3] Hickey and Hughes v Secretary of State for Communities and Local Government, 3 September 2013. I rely here on a very valuable account by Andrew James, Check-Off Arrangements – The Law (Thompsons Trade Union Law Service, 17 March 2014). Mr James also highlights the existing protections for workers who do not want to pay subscriptions by check-off. See especially Trade Union and Labour Relations (Consolidation) Act 1992, ss 68, 69 (hereafter TULRCA 1992).

[4] By virtue of the amendment, it will not be lawful to implement any collective agreement on check-off.

[5] ILO Committee of Experts, Observation Adopted 2010 (Congo) (ILO, 2011). Emphasis in original. More recently: ‘The Committee hopes that the current reform of the Labour Code will provide the opportunity to ensure that the question of the deduction of trade union dues by employers and their transfer to trade unions can be included in the scope of collective bargaining : ILO Committee of Experts, Direct Request Adopted 2013 (Congo) (ILO, 2014).

Prepared 28th October 2015