Trade Union Bill

Further written submission from TUC (TUB 50)

Trade Union Bill: International comparisons 

 The right to strike is a fundamental human right. It is safeguarded by ILO Convention 87 on freedom of association and the right to organise, the UN Covenant on Social and Economic Rights (Article 8), the European Social Charter (Article 6(4)) and the European Convention on Human Rights (Article 11), all of which have been ratified by the UK government.

 

The UK has one of the most restrictive systems for industrial action in the industrialised world. In order to organise lawful strikes, unions must comply with highly complex legislation, including onerous notice and balloting requirements. Unions are required to run postal ballots sent primarily to union members’ homes. Postal ballots are very expensive and deter participation in union democracy. The complexity of the legislation means that unions are at risk of legal challenges, with employers able to gain injunctions where unions have made minor administrative errors. Union members also have very limited protection from dismissal, have no protection from victimisation and regularly experience excessive deductions from pay when exercising their fundamental human right to strike.

 

These restrictions have been repeatedly criticised by both the ILO Committee of Experts and the European Social Rights Committee within the Council of Europe for failing to comply with international law. For example, the European Social Rights Committee has concluded that ‘the scope for workers to defend their interests through lawful collective action is [in the UK] excessively circumscribed.’

 

According to the International Trade Union Confederation (ITUC) Global Rights Index for 2015, the UK is ranked alongside countries such as Albania, Argentina, Congo, Haiti, Hungary, Jamaica, Panama, Russia, Spain and Sri Lanka, with regular violations of international labour standards.

 

Additional restrictions on the right to strike

The TUC is profoundly concerned that the measures contained in the Trade Union Bill will further threaten the right to strike in the UK. For example, the TUC is concerned that the proposed statutory thresholds represent an unnecessary, unjustified and disproportionate restraint on the right to strike and are therefore unlikely to comply with international human rights standards, including ILO Convention 87. According to the ILO Freedom of Association Committee

 

‘The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.’ [1]

 

The ILO has called on governments to amend their national laws where they include such provisions. [2] For example, in Bulgaria trade unions complained to the ILO that legislation, which provides that industrial action is only lawful where it has the support of a majority of those eligible to vote, violates the right to strike as protected by ILO Convention 87. The ILO’s Committee of Experts agreed and called on the government to amend the legislation.

 

The Committee rejected the Bulgarian government’s claim that its strike ballot threshold was ‘liberal in character’, and that ‘any attempt to amend it may infringe its democratic approach’. Instead, the Committee confirmed that under international law, ‘account should only be taken of the votes cast’ in strike ballots, while any ‘required quorum and majority should be fixed at a reasonable level’. The Committee urged the Bulgarian government to change the law ‘in order to bring it into closer conformity with the principles of freedom of association’. [3] The ILO has made similar recommendations to the Nigerian and Honduras governments, which implemented statutory thresholds.

 

The TUC is also concerned that the government’s proposed restrictions on strikes in the public sector extend well beyond the definition of ‘essential services’ recognised by the ILO. The Employment Law Association (ELA) has cautioned the government not to extend thresholds to services not covered by the ILO definition of ‘essential services’. [4] The Association’s response to the BIS consultation on thresholds said: ‘ELA cautions that if the provisions [in the Bill and any accompanying regulations] are not drawn as narrowly as possible then the Government runs the risk of a challenge on the basis that the imposition of the raised thresholds infringes Article 11 of the European Convention on Human Rights. Any restrictions on the right to strike must not be greater than necessary to pursue a legitimate aim and are necessary in a democratic society.‘

 

Clauses 4 to 8 of the Trade Union Bill also create additional legal hurdles for unions seeking to organise lawful industrial action, including requiring unions to provide additional information on the voting paper extending the notice period for industrial action from seven to fourteen days, and providing that the ballot mandate for industrial action expires after four months.

 

The TUC agrees with the European Social Rights Committee’s assessment that the existing procedural obligations in relation to industrial action in the UK are excessive and disproportionate and that the excessive and disproportionate nature of these obligations will be compounded by the Trade Union Bill, clauses 4 to 8. We believe that the cumulative impact of these provisions, and the opportunity they provide for harassing and expensive litigation by employers, are wholly inconsistent with the government’s obligations under Convention 87, article 11 to ‘take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise’.

 

Limiting the right to protest and to strike

The TUC is also concerned that measures contained in Clause 9 of the Bill proposals outlined in government consultation documents represent a significant attack on the civil liberties of working people in the UK, including right to protest and assemble. Of particular concern will be changes to the role of the police in overseeing picketing. The proposals appear to set a worrying precedent for the right to protest in the UK.

 

The proposals have been widely criticised by lawyers and politicians. Leading civil liberties groups – Liberty, Amnesty International and the British Institute of Human Rights - recently issued a joint statement criticising the government’s proposals:

 

"The government's plans to significantly restrict trade union rights – set out in the Trade Union Bill – represent a major attack on civil liberties in the UK ..... Taken together the unprecedented measures in the Bill would hamper people’s basic rights to protest and shift even more power from the employee to the employer. It is hard to see the aim of this bill as anything but seeking to undermine the rights of all working people." [5]

 

Restrictions on the right to organise

The TUC is also concerned that proposals to limit facility time in Clauses 11 and 12 and the proposed ban on ‘check-off’ arrangements in New Clause 11 in the public sector violate international standards relating to the right to organise. These standards include ILO Conventions 87 and 151. The TUC is particularly concerned by powers contained within the Bill and within New Clause 11 permitting the government to rewrite collective agreements which have been voluntarily agreed by public sector employers and trade unions.

 

Removing the ban on the use of agency workers during strikes

The TUC is firmly opposed to this proposal which will permit employers to use agency workers to undermine the effectiveness of industrial action or even to break strikes.

 

The ban on the supply of agency workers during industrial action has been in place in UK since 1973. A succession of previous governments, including Conservative governments, has recognised that Regulation 7 forms an important part of the industrial relations landscape in the UK and therefore should be retained.

 

The vast majority of EU Member States ban the use of agency workers during strikes. For many years, the agency industry has also promoted the view that it is not good practice to supply agency workers during industrial action. Ciett, the International Confederation of Private Employment Agencies, has issued a Code of Conduct which prohibits the supply of agency workers during strikes. [6] Several UK employment businesses have also signed international framework agreements which prohibit the supply of agency workers during strikes.

 

In our opinion, this measure will breach international standards.

 

The ILO Recommendation on Private Employment Agencies, 1997 states that:

 

‘6. Private employment agencies should not make workers available to a user enterprise to replace workers of that enterprise who are on strike.’

 

The ILO Freedom of Association Committee has also 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’. [7]

 

 

Working days lost through strikes

The government is legislating to make it more difficult to have a legal industrial dispute, but recent figures from the Office for National Statistics show that the number of working days lost through strikes is very modest indeed.

The TUC calculated that the number of days lost through industrial action during the past twelve months adds up to just half of one ten-thousandth of a per cent of all the days actually worked.

The table below sets out the total number of working days lost through strikes as a percentage of total working days in each sector during the past twelve months.

The results range between zero and 0.000369 per cent.

Another way of expressing this would be to say that the average UK employee lost less than one third of a single second to strike action during the past twelve months (0.308 seconds).

Days lost through strikes as a percentage of total working days (Twelve months to August 2015)

Industry

Number of employees

Total annual Working days per industry per year

Working days lost through strikes *

Percentage of total working days lost through strikes

Agriculture fishing and forestry

169,000

37,180,000

-

nil

Mining energy and water supply

510,000

112,200,000

3,400

0.000030

Manufacturing

2,780,000

611,600,000

14,300

0.000023

Construction

1,309,000

287,980,000

2,500

0.000009

Wholesale and retail

3,604,000

792,880,000

1,600

0.000002

Transport and storage

1,271,000

279,620,000

58,500

0.000209

Accommodation and food services

1,492,000

328,240,000

-

Nil

Information and communication

1,007,000

221,540,000

1,600

0.000007

Finance, insurance and real estate

1,371

301,620,000

100

0.0000003

Professional, scientific and technical

1,567

344,740,000

700

0.000002

Admin and support

1,166

256,520,000

1,300

0.000005

Public administration, defence, social security

1,789

393,580,000

145,400

0.000369

Education

3,017

663,740,000

7,200

0.000010

Health and social work

3,812

838,640,000

48,100

0.000057

Other services

1,202

264,440,000

13,200

0.000050

Total

26,240

5,772,800,000

297,800

0.000051

Sources: ONS HOUR03 NSA average actual hours per worker (includes both FT and PT employees), ONS LABDO3 Labour disputes, and ONS EMP14 all employees by industry sector. [1]

*Note that calculation assumes a 5 day week and 44 working weeks per year (i.e. 52 minus 8 weeks for leave, bank holidays and sickness absence, based on averages from LFS and HSE).

Wider statistics

The Office for National Statistics also report that that there were only 151 stoppages last year [2] .

Despite having more people in work than ever before, the UK has a historically low level of days lost through strikes. The annual average for the current decade is just 4.7 per cent of the total for the 1970s, 9.5 per cent of the total for the 1980s and, strikingly, just 29.6 per cent of the total for the 1940s when, amongst other considerations, the workforce was much smaller.

According to the HSE, 131 million days were lost to work-related ill health in 2013 [3] – 439 times as many as days lost through strikes.


[1] ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, paragraph 556.

[2] ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, paragraph 558.

[3] ILO (2008) Observation (CEACR), adopted 2007, published 97th ILC session (2008) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Bulgaria www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:2276927,102576,Bulgaria,2007; ILO (2012) Observation (CEACR) - adopted 2011, published 101st ILC session (2012) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Bulgaria www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:2698633,102576,Bulgaria,2011

[4] http://www.elaweb.org.uk/resources/responses-to-consultations/ela-response-bis-consultations-ballots-essential-services

[5] https://www.liberty-human-rights.org.uk/news/press-releases-and-statements/trade-union-bill-represents-major-attack-civil-liberties-uk

[6] Ciett Members’ Commitment Towards A Well Functioning International Labour Market adopted on 27 November 2006. Available at: www..org/fileadmin/templates//docs/__.pdf

[7] ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO , paragraph 632.

[1] All published as reference tables in the ONS Labour Market Statistics (October 2015): http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/october-2015/index.html

[2] Note that only ONS table LABDO3 reports the total number of stoppages that take place during the year. In contrast, LABDO1 and LABDO2 report the stoppages taking place in any given month, thus a stoppage taking place on, say, two days on 31 October and 1 November would be counted twice.

[3] HSE statistics. Latest figures for 2013. http://www.hse.gov.uk/statistics/dayslost.htm

Prepared 28th October 2015