The new Trade Union Bill seeks to fight battles that, in reality, were won 20 years ago. There is a danger that all it will do is stir up anger and resentment in the trade union movement – and perhaps that is all the Government wants it to do. I hope, however that it will demonstrate that our law on industrial action has now become ridiculous. We need to sit down and start again from scratch.
Our current law starts from the assumption that that industrial action is illegal – with unions conspiring to interfere with the employer’s business and inducing employees to breach their contracts of employment. However, it then grants individuals and trade unions a limited immunity if they are acting in contemplation or furtherance of a trade dispute.
The underlying illegality of industrial action gave the Conservative governments of 1979-1997 a suitable peg on which to hang their reforms. Immunity after all is a privilege, not a right. In a step-by-step approach they added more and more legal hoops through which a union must jump in order to keep this special immunity that the law grants them. These requirements go far further than a sensible requirement that strikes should have the support of a fair and democratic ballot. Every stage of the process from calling the ballot to taking the action itself is hedged around with detailed legal requirements.
Now that we have a Conservative majority government once more, it appears that they are keen to carry on from where they left off – adding yet more hoops for unions to jump through. The Trade Union Bill imposes a range of new restrictions on industrial action – in particular:
- All strike ballots must have a turnout of at least 50% of those entitled to vote
- In defined ‘important public services’ such as health, children’s education and transport, at least 40% of those entitled to vote must vote ‘yes’ (so if the strike ballot gets a 50% per cent turnout at least 80% of those voting must vote ‘yes’)
If this was all the Bill provided for, there probably wouldn’t be too much to complain about. I wrote three years ago that there was no need for such a reform (I was right then and I still am) but there is no reason why unions should not obtain high turnouts for strike ballots if they know they have to. However, the Bill goes much further than just imposing thresholds on strike ballots. It also provides that:
- The voting paper will need to include a ‘reasonably detailed indication’ of the matters in dispute between the union and the employer – expect lots of case law about this one.
- Instead of simply asking whether the members support a strike or action short of a strike, the voting paper will need to specify what kind of action short of a strike is being contemplated.
- The voting paper must also indicate the period or periods within which industrial action is expected to take place
- In notifying its members and the employer of the result of the ballot the union will have to give details of the turnout and whether it matches the new requirements
- The union will have to describe any industrial action it has taken in the previous year when making its annual return to the Certification Officer
- The period of notice which the union has to give the employer in order to take industrial action will increase from seven to fourteen days.
- The industrial action ballot will only be valid for four months from the last day on which votes will be cast. Any industrial action taking place after that period will need to be authorised by a fresh ballot.
- Where a union organises or encourages a picket, the union must appoint an official or union member to be the ‘Picket Supervisor’ and a range of requirements currently set out in the Picketing Code of practice will become a formal legal requirement.
- The union must notify the police of the location of any picket, giving the Picket Supervisor’s name and contact details.
The Bill also imposes new restrictions on a union’s ability to donate to political parties, and paves the way for regulations restricting the paid time off given to union officials by public sector employers.
Finally, the Government intends to repeal Reg 7 of the Employment Agencies and Employment Businesses Regulations 2003 which prohibits agencies from supplying workers to cover for those taking strike action. Officially the Government is ‘consulting’ on whether to do this, but since their manifesto promised to repeal this ‘nonsensical’ measure, I think we know how the consultation will turn out. It might be worth noting that this ‘nonsensical’ provision is actually recommended by the International Labour Organisation who will need to be officially informed of its repeal – but I doubt the Government will worry too much about that.
Taken on their own, these provisions can be seen as overly restrictive and draconian. In particular the four month limit on the validity of ballots – with no scope for the union and employer even to agree and extension – will encourage unions to intensify industrial action rather than engage in time consuming negotiations. But when you add these new provisions to the comprehensive legislation already in place, it all becomes absurd. The requirements for lawful industrial action already take up 19 closely typed pages of my statute book. Adding a few more will do nothing to improve industrial relations – in fact, quite the reverse. To read the Bill you would think we were faced with some sort of national crisis with trade unions running rampant and irresponsible strike action bringing the country to its knees. But this isn’t 1979. Some ministers – and some trade union leaders – may hanker for those glory days, but the rest of us have moved on and grown up (literally in my case).
Other European countries manage to have a more grown up relationship with trade unions based on social partnership and dialogue. Our Government, however, seems happy to see the union movement as an enemy to be beaten – again. Apart from anything else, this simply plays into the hands of those union members (and leaders) who take a similarly partisan view.
The Bill will pass. No amount of debate or protest will prevent that. The best the opposition can hope for are some sensible amendments that will mitigate the Bill’s worst effects – and I’ll have more to day about that in the next post. But one day, a Government will have to work out a new settlement based on a more balanced and constructive approach. Employees deserve a voice that is listened to and they need to be able to withdraw their labour in an organised, peaceful and democratic way when a dispute with their employer cannot be resolved through negotiation. The law of industrial action should be fit for that purpose. It should promote dialogue and conciliation, but also support what is regarded throughout the western world as a basic human right. This Bill won’t help us do any of those things.