The Trade Union Bill 2015 – a step too far

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.

 

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in Industrial action, Trade Union Bill and tagged , , , , . Bookmark the permalink.

3 Responses to The Trade Union Bill 2015 – a step too far

  1. Phil says:

    Is it a foregone conclusion that the Bill will pass? The govt has a very small majority, when the opposition isn’t helping it by abstaining. Twelve abstentions or six rebels may not be too much to hope for.

    • Phil, thanks for commenting. But I think this is a Bill that Government MPs will turn up for. It’s a manifesto commitment and it’s inconceivable that the Government will allow it to fail. There will be a three line whip and I can’t see Conservative MPs rebelling on this issue – why would they?

      There may be scope for amendment though, but that’s for another post.

  2. The Nonsensical Nonsense of Repealing Reg 7 That NO one wants or needs!

    The Government has published the BIS Consultation papers on the Trade Union Bill 2015 (The three consultation papers can be accessed in links )

    (https://www.gov.uk/government/consultations/ballot-thresholds-in-important-public-services);
    tackling intimidation on the picket line and in relation to “leverage” tactics, plus requiring unions to give advance notice of any protests

    (https://www.gov.uk/government/consultations/tackling-intimidation-of-non-striking-workers);repealing the ban on using agency workers to cover for striking workers (https://www.gov.uk/government/consultations/hiring-agency-staff-during-strike-action-reforming-regulation)
    There has been the usual reaction to the proposals from the Trade Unions to the Governments proposals: “draconian” “reactionary” however, reaction to the proposals by both the academic community & the HR profession adds a different optic.

    Industrial action is at an all historic low (155 strikes involving 10 or more workers in 2014 compared to 1206 in 1984) Nick Cass Professor of HRM at Cass business school fears that making strikes more difficult (in an already heavily regulated environment) may “where people feel very strongly may force them beyond the picket line & even outside the law” Mike Emmott Employer Relations Adviser for the CIPD suggests that the proposals could be counterfactual where “instead of reducing industrial action, tighter scrutiny could turn neutral employee opinion in favouring strikes along with more unofficial actions, which are harder both for Unions Managements & ACAS to solve”

    I took the opportunity to initially review the 3rd limb of the Government’s proposal:
    repealing the ban on using agency workers to cover for striking workers (https://www.gov.uk/government/consultations/hiring-agency-staff-during-strike-action-reforming-regulation)

    By way of background the Recruitment sector is regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the ‘Conduct Regulations’). Currently Regulation 7 of the Conduct Regulations “prohibits employment businesses from providing agency workers to cover the duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action, or to cover the work of an employee covering the duties of an employee taking part in a strike or other industrial action”

    The Government confirms in its impact assessment that “The United Kingdom has one of the most lightly regulated labour markets in the developed world, fourth to New Zealand, the US and Canada for permanent employees and third to Canada and the US on temporary contracts”

    OECD (2013) “Protecting jobs, enhancing flexibility: A new look at employment protection legislation” in OECD Employment Outlook 201 http://dx.doi.org/10.1787/emp_outlook-2013-6-en

    The Government proposes removing this regulation from the Conduct Regulations which would allow employers facing industrial action to hire temporary agency workers from employment businesses who would then be able to perform some of the functions not being carried out due to the industrial action.

    The Government thinks that removing Regulation 7 from the Conduct Regulations will give the recruitment sector the opportunity to help employers to limit the impact to the wider economy and society of strike action, by ensuring that businesses can continue to operate to some extent.

    The Government cites strikes in important public services such as education which mean that some parents of school age children will need to look after their children rather than go to work because some schools would not be able to fulfil their duty of care for their pupils during the strike.

    Safety standards are extremely important to us all as well the companies that provide services and to the customers who use them. The fact is that it is very difficult to replace rail workers with untrained staff if they take industrial action (though the Government specifically cites Transport Strikes as a core reason for the proposal) The same is true of Fire Fighters, Ambulance crews, Nurses or in the Teaching profession. What time would ther be to carry out the relevant legally required CRB checks to make sure our children are in safe hands at school?

    The proposals also fail to take account of “skills set & location” of dispute as well as not taking into account, the difference of an individual who is “happy to temp” with work colleagues to being put into a “hostile work environment”

    In nearly all Public Service disputes, minimal cover is agreed between the parties. This means that deals are often done September 2013 with the Union as seen during the Fire Fighter Dispute “The public were told that 999 calls will be answered but brigades added that some non-emergency calls such as those to floods or rubbish fires will not be dealt with”

    Strikes Do Not just Happen; Employee Relations & the Business needs to understand currently what an Employer can do even if the present Government does not as evidenced by the proposal.

    The remarkable facts are, making the Government proposals slightly nonsensical that an employer faced with Industrial action can already use an employment agency to employ staff directly to cover for striking employees, as long as they are employed directly by the firm & not by the agency supplying the workers. By effective planning employers can already ensure minimizing disruption to business during strikes.

    An employment agency can lawfully supply workers for the employer to employ directly at any time. The agency could even do the pre-recruitment screening. It follows that the employer can make use of the services of such an agency without aiding &abetting any criminal offence by the agency, since none would exist.

    An employer can move existing employees from other parts of the business (or group) to cover for striking employees: this might be inflammatory but is not unlawful.

    These employees might be workers recruited via an employment agency but employed directly by the business, but they must not be ‘agency workers’.

    Employers can continue to use any agency workers already supplied on a ‘business as usual basis” for the original purposes for which they were engaged. They should not, however, be specifically re-allocated to the duties normally performed by colleagues taking part in industrial action.

    Any agency worker already supplied but who leaves, can be replaced by another agency worker who should only perform the work for which their predecessor was engaged.

    Agency workers can be used for duties relating to the business, even if indirectly relating to the industrial action, as long as they are not actually covering for employees who are taking part in the industrial action.

    Hello! Strikes Do Not Just Happen; The law is no substitute for Business & Employee Relations Ownership.

    In addition to the above the Business & Employee Relations can & should take active steps in mitigating any impacts of Industrial action by effective contingency planning. Understanding the cycle of the negotiation pinch points for the business: It is no surprise that Spanish Air traffic controllers go on strike in summer. It is up to the business to negotiate a change in cycle of negotiations to a time (depending on the business model) ensuring that negotiations are not carried out when the business is most vulnerable.

    If the agreement to timescales cannot be immediately changed for annual bi annual negotiations (rare to have agreements for more than 2 years) the business can start the negotiations earlier & should effectively managed the process with the Trade Union by being proactive especially if history has taught the employer that negotiations have dragged on in the past.

    The simple fact is that Trade Union members want a pay rise (rare in the past 8 years) rather than have to wait for some indeterminate time in the future. Settlement points in October are always helpful for Christmas expenditure for those employed likewise a May Settlement is always handy for extra money for summer holidays. It is the responsibility of the Business & Employee Relations to effectively manage that.

    An employer currently cannot simply;

    Use an employment business (a firm that employs the workers whose services are supplied to the end user) to supply their own employees if this is to replace an employee who is taking part in either a strike or industrial action short of a strike) Regulation 7 states that it would be an offence for an employment business to supply an agency worker specifically to carry out the duties normally performed by an employee who is actually taking part in a strike or other industrial action, the duties normally performed by an employee who is covering the work of a worker who is taking part in a strike or other industrial action… unless the employment business does not know, and has no reasonable grounds for knowing that the employee is taking part in a strike or other industrial action”.

    If the employment business is guilty of an offence under the regulations, the end user can be guilty of aiding and abetting that offence. Though no such charges have ever been brought

    “It is important to note that the 2004 Regulations prohibit employment agencies from doing certain things. Therefore, the offence [of using agency workers during strikes] would be committed by the agency. The employer would be guilty of ‘only’ aiding or abetting the agency’s offence.

    “A key distinction in the 2004 Regulations is between an employment agency (EA) and an employment business (EB). An EA does not itself employ the workers whose services it supplies to the end user; by contrast, an EB does employ the workers whose services are supplied to the end user

    Wider Context of Employment Agencies & Social Dialogue.

    What constantly surprises (though I should not be) is the “narrowness” of considerations to any Government Proposals & failing to understand the wider development over the past 10 years of the Employment Agency Industry not just in the UK but Europe & Globally.

    The Umbrella arm of Employment Agencies EuroCiett, which sees its role very differently; EuroCiett has driven its own profile as intermediary between workers and businesses & states “we have a privileged insight into the needs of all involved stakeholders”

    Eurociett, in its role as industry social partner, has been pushing the agenda alongside UNI Europa, the European leg of the global Union UNI Global. Both parties have signed a series of Memorandums of understanding & improving key parameters of the industry, notably establishing guiding principles for an EU regulatory framework on temporary agency work, underlining the positive contribution of temporary agency employees.

    At a global level, EUROCIETT & Uni Global continue to drive social dialogue directly & within the ILO framework. In October 2011, the International Labor Organisation (ILO) Global Dialogue Forum took stock of the most recent contribution of private employment services to the ILO’s decent work agenda, taking into account ILO Convention 181 and Recommendation 188 on Private Employment Agencies adopted in 1997.

    The steps taken in Social Dialogue with its partners over the past years is best illustrated by the slide below;

    Currently REC (Recruitment Employment Confederation also a member of Ciett) the UK body for Employment agencies is seeking views of its members re UK Government proposal removing Regulation 7, so that employers can use agency workers as cover during industrial disputes.

    They ask “We want to know whether you think your clients will use this provision if available and how, if used, you think this will impact on your business reputation” And suggest “Whilst we recognise that employers want to continue providing services to their customers during industrial action, we are not convinced that putting agencies and temporary workers into the middle of difficult industrial relations situations is a good idea for agencies, workers or their clients.”

    We have already taken soundings from our members on the proposed changes.

    “The initial feedback is that this would be used in very few situations and could inflame situations, making a resolution more difficult.”

    This is in mark contrast to REC position in 20008 which at that time lobbying the CBI to influence the Government for the removal of Regulation 7, which itself was a breach of the agreement between EuroCiett & Uni Global which includes

    UNI & Ciett Corporate Members agree that a regulatory framework on temporary agency work must include and promote:

    Principles as guaranteed by ILO Convention 181 and Recommendation 188 on private employment
    Fair treatment for temporary agency workers with regard to their basic working and employment conditions based on the principle of non-discrimination (for instance equitable, objective and transparent principles for the calculation of agency workers’ wages and benefits, considering national legislation and practices).

    Respect for freedom of association and the right to collective bargaining as guaranteed by ILO conventions 87 and 98.

    Sectoral social dialogue at national and company level for which collective labour bargaining is one appropriate means.

    Prohibition of the replacement of striking workers by temporary agency workers without prejudice to national legislation or practices.

    http://place.uniglobalunion.org/LotusQuickr/pub/Main.nsf/0/A2E9895EFB0402E7C125793500387703/$file/MoU-UNI-CiettCMC-En.pdf

    Amongst the signatures with UniGlobal to last 3 bullets are the largest Global Employment Agencies including Kelly Service Manpower Adecco USG People Randstad.

    In addition the Eurociett Code of Conduct have an article dealing with industrial action, it reads:

    Principle 7 – Respect for the Worker’s Rights

    Equitable, objective and transparent principles for the calculation of agency workers’ wages shall be promoted, considering national legislation and practices.

    Members shall not restrict agency workers’ right of freedom of association.

    Private employment agencies shall not make workers available to a user company to replace workers of that company who are legally on strike, except where such a provision is prohibited by national or local law.

    Finally the replacement of striking workers by other workers has been criticized by the ILO Committee of Experts, that regulation 7 presumably is intended to ensure that the right to strike is not completely illusory & that’s without reference to the other 2 limbs of the Trade Union Bill 2015

    Looking at what an Employer can do/should do to mitigate Industrial action, taking into account both REC & EUROCIETT position one is left wondering, what is driving this proposal apart from a narrow ideology rather than a true business need. The proposal to remove Regulation 7 on its stand-alone merits fails to satisfy its own requirements other than muddying waters & as REC currently believes:

    “We are not convinced that putting agencies and temporary workers into the middle of difficult industrial relations situations is a good idea for agencies, workers or their clients”

    It is clear from my experiences in Employee Relations that it is the Management Trade Union & Employees (with support if necessary from ACAS) that provide the solutions. In short, solutions come from people & relationships not unnecessary legislation that no one seems to be arguing for.

    A very senior colleague in the Employment Agency world (One of the Global Employment agency players) put it thus

    “we not asking nor seeking it. The negatives surpass the positives by far & damage the industry’s reputation whilst gaining no sustainable business at all.”

    That Global Employment agencies are not interested & the agencies that may take advantage would be “back street operators” who would in the words of my colleague damage the reputation of the other Agency brands, and cause long term damage to business Employee Relations & loss of Trust from Employees.

    I need to look at the other 2 BIS Consultation papers re the Trade Union Bill 2015 shortly, something for the weekend? The Glorious 12th?

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