The Trade Union Bill aims to permanently mire labour in court. By Professor Keith Ewing and John Hendy QC
MUCH has been said and written in condemnation of the Trade Union Bill.
Ideologically driven rather than evidence led, it was rightly attacked by the government’s own Regulatory Policy Committee on August 21 as not being “fit for purpose.”
In our view the underlying purpose of the Bill is to crush the remaining powers of the unions to protect the interests of working class people. This is in order to facilitate yet further transfers of wealth and income from working class people to the very rich.
The Bill has three particular features:
• The first is to single out public sector trade unionism for particular assault, as part of a strategy to suppress organised resistance to the destruction of public services and to eliminate any meaningful bargaining over pay or terms and conditions from the public sector, allowing the government to cut wages, pensions and staff.
• The second is to undermine collective bargaining by more restrictions on the lawful exercise of the right to strike. Without an effective right to strike, the right to collective bargaining is, of course, no more than a right to collective begging. So the Bill is intended to put yet further obstacles in the way of the only means that workers have to protect or improve the conditions of their working lives.
• The third is to silence the political voice of the organised working class, building on the coalition’s Gagging Act in 2014, to ensure that unions have limited resources and opportunities available to offer political resistance to the government.
These measures — and the accompanying proposals for even more controls on picketing in particular — will not, and are perhaps not intended to, extinguish trade unionism altogether — that would be too bold a step.
Instead it is a variant of the “Gulliver Concept” (as the Chairman of the National Coal Board described the Thatcher government’s legal strategy in the Miners’ Strike of 1984-85) of encouraging multiple legal actions, each one tying “another tiny legal rope around the [union] until it woke one day and couldn’t move.”
Pushing through austerity against global trends
As Canada reaffirms the right to strike, Tories are heading the wrong way
Dramatic changes to the law on industrial action over the last 35 years have already helped to reduce the proportion of British workers covered by collective agreements from 82 per cent (then around the European average) in 1979 when Mrs Thatcher became prime minister to about 20 per cent today.
The Tories intend to reduce that proportion to insignificance.
Promoting a desire to remove all fetters on management prerogative, the Bill is a full frontal assault on the industrial and political freedoms of the trade union movement, a strategic part of the government’s austerity policy involving an attack on the public sector generally, and an authoritarian announcement of the Tories, utter contempt for civil liberties and human rights — particularly those of trade unions and their members.
The government is out of step with legal developments elsewhere in the world.
The link between managerial prerogative, the right to strike and human rights is clearly highlighted in a recent decision of the Supreme Court of Canada, which swept away legal restrictions on strikes in public services.
In January’s Saskatchewan Federation of Labour v Saskatchewan case the court said that: “The right to strike is essential to realising these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse.
“Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives.
“The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions.
“This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives. Striking — the “powerhouse” of collective bargaining — also promotes equality in the bargaining process.”
Yet in mobilising their weapons in the Bill and in various accompanying Consultation Documents that propose yet further attacks, Cameron and Osborne are building upon the massive framework of existing legal control inherited from the last Tory governments, introduced between 1980 and 1993.
It is true that we had Labour governments from 1997 to 2010. But Tony Blair made a now infamous promise on the eve of the 1997 election that under a Labour government “the changes that we do propose would leave British law the most restrictive on trade unions in the Western world.”
That was one promise he kept, with the result that each change introduced by the Bill is not to be assessed in isolation, but as a yet further restriction on top of the multitude of current restrictions on trade union freedom already in place, and repeatedly criticised in international legal forums, such as the European Committee of Social Rights.
Tory missiles are pointed at state service fortress
Cameron is going after facility time, 1% pay and the neoliberal dream
As we will see, new requirements on member participation and voting thresholds in industrial action ballots, as well as the permitted use of strike-breaking agency workers, are particularly aimed at public-sector unions. But there are other special measures in the Bill specifically directed at these unions and workers.
It is pretty obvious why Tory missile launchers are targeted on trade unions in the public sector:
• It is in the public sector where trade unions are the strongest and where the impact of austerity will be felt most immediately;
• It is the public sector that the Tories particularly wish to destroy in their dogmatic commitment to neoliberalism;
• As part of austerity, the Chancellor announced in the Budget that the 1 per cent pay cap for public-sector workers (other than MPs) will continue.
Osborne needs to make the 1 per cent stick. So in addition to the far-reaching restrictions on the right to strike, particular provisions in the Bill target workplace representation in the public sector:
• The first is the requirement that public sector employers provide information about the amount of facility time granted to trade union representatives (and the direct “cost” of it — ignoring indirect benefits to the employer) (clause 12). This is an open invitation for the anti-union media to attack any public authority which abides by international law (and domestic law) by respecting the rights of its workers to be represented by a trade union;
• The second is a unilateral power of the government to impose limits on the amount of facility time and the purposes for which that time may be used (clause 13).
This includes a power for ministers to rewrite legislation in its application to any public-sector employers, and the power also to ‘modify’ collective agreements. This is the first time the British government has taken the power to rewrite collective agreements of which it disapproves.
This latter provision is surely a clear breach of ILO Conventions 98 and 151, the latter in turn providing not only that public-sector trade unions have the right to workplace facilities, but also that these facilities are to be the subject of collective bargaining.
But this is not the end of it, the Tories announcing on August 6 2015 (after the Bill was published) that they will “abolish the check off across all public sector organisations,” as part of “curtailing the public cost of ‘facility time’.
In making this most recent proposal — introduced as a form of collective punishment during a Tube strike — the government again appears to have disregarded that ILO Conventions 98 and 151 allow no exception for collective bargaining about check-off arrangements, which — on the contrary — the ILO Committee of Experts has held to be clearly covered.
Six sectors face an uphill struggle
Health, education, fire services, transport, nuclear and borders all targets
The Bill contains an extensive range of measures restricting the freedom of unions to organise industrial action. Firstly, it proposes new obligations by prescribing both (i) minimum levels of participation in industrial action ballots in all sectors, and (ii) minimum levels of support for industrial action in six sectors set out in the Bill.
And as already pointed out, this is in addition to the heavy burdens of existing legislation restricting the purposes for which industrial action may legitimately be called, and imposing complicated procedural requirements of ballots and notices, referred to by one High Court judge as “the inordinate complexity of the statutory procedures.”
The additional requirements are:
• So far as minimum levels of participation are concerned, industrial action will be lawful only if 50 per cent of those eligible to vote do so, and if a majority of those voting support the action in question (clause 2);
• So far as minimum levels of support are concerned, in six sectors industrial action will be lawful only if it is supported by at least 40 per cent of those eligible to vote in the ballot (clause 3).
• The “important public services” which are to be subject to the 40 per cent support threshold will include public and private-sector workers in: health; education of the under-17s; fire services; transport; nuclear decommissioning and waste management; and border security.
There are three points to note about these provisions.
The first is that research by Professor Ralph Darlington and Dr John Dobson (to be published by the Institute of Employment Rights) has shown that:
• Only 85 of 158 strike ballots covered by the database reached the 50 per cent target — 54 per cent.
• The number of workers failing to reach the target was disproportionate — while 444,000 workers could have gone on strike, 3.3 million would have been blocked.
• Even removing the large-scale 2011 public-sector strikes, it still means 880,000 workers would, under the proposed legislation, no longer have been able to go on strike.
So the Bill’s changes would have had a massive impact on the right of workers to strike, especially in the public sector where protest strikes are often large scale and cover a multitude of workplaces and employers.
No doubt after the Bill becomes law turnouts will increase. Unions will campaign harder and the message will be well understood by trade union members that members who do not bother to vote are members who will be counted as voters against.
Whether this will be sufficient to overcome the new hurdles, given that industrial action ballots are denied the obvious means to make them effective such as enabling secure and secret voting at work or by internet, remains to be seen.
The second is that these changes are almost certainly in breach of international legal obligations, notably ILO Convention 87. In a long-running complaint from Bulgaria the ILO has repeatedly condemned a 50 per cent approval requirement in strike ballots, and pointed out that “account should only be taken of the votes cast,” while any “required quorum and majority should be fixed at a reasonable level.”
In a case involving El Salvador which turned on the legitimacy of a threshold of 51 per cent for strike action, the ILO Governing Body in 2015 approved its Committee on Freedom of Association in reiterating the principle that restrictions “should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organisation.”
The third is that the ultimate test of worker support for industrial action is not a ballot but whether, in fact, they take industrial action.
After all, long gone are the days when a union could “instruct” its members to take industrial action; a union “call” to take industrial action is in reality today no more than a polite invitation.
Unions have not been permitted to discipline members for not taking industrial action for nearly 30 years.
And the already extensive restrictions on picketing remove the risk of intimidation even without the raft of further restrictions now proposed by the government.
Agency shock troops
Regulations made in 2003 prohibit 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 Tories plan to revoke this regulation, to enable agency workers to be used as strike-breakers.
Though this will apply in both private and public sector workplaces, it is the latter which the government has particularly in mind, as the accompanying consultation document reveals:
19. There are sectors in which industrial action has a wider impact on members of the public that is disproportionate and unfair. Strikes can prevent people from getting to work and earning a living and prevent businesses from managing their workforce effectively.
20. For instance, strikes in important public services such as education will mean that the 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. This would also have a negative impact on some employers of the parents affected, whose workforce and productivity would be affected. Similarly, if postal workers were to strike, individuals and employers reliant on postal services would be placed at a disadvantage due to the resulting large backlog in deliveries.
This is a major challenge to the right to strike and has been rightly condemned by the TUC. Apart from anything else, licensing the use of strike-breakers is a breach of another international legal obligation, ILO Convention 87. The ILO supervisory bodies have not accepted that the use of replacement workers to break a strike is compatible with ILO Convention 87, for obvious reasons.
The ILO Committee of Experts made clear in 2012 that: “Provisions allowing employers to dismiss strikers or replace them temporarily or for an indefinite period are a serious impediment to the exercise of the right to strike, particularly where striking workers are not able in law to return to their employment at the end of the dispute.”
Yet this is precisely what the government now plans for Britain. Employers will be allowed to use agency workers indefinitely, and there is no guarantee workers on strike will ever get their jobs back. This will be a strategically important power of employers, especially if they are permitted to use agency workers to both replace and undercut those on strike.
It will also be important in the context of industrial action short of a strike, where workers may refuse to take on additional duties or boycott others. English contract law has long permitted the employer, in these situations, to hire agency staff and send workers home until they will do what they are told.
This is not just a licence for strike-breaking — it is a licence for bullying and autocratic management.
Tightened rules will put pickets in chains
Long list of onerous rules read like a blacklister’s dream
In addition to the existing, vast (and highly effective) array of civil and criminal law on picketing, the Trade Union Bill introduces yet further restrictions.
This is notwithstanding that the Association of Chief Police Officers told Bruce Carr QC, who had been appointed by the government in 2014 to review the law on picketing: “In general the legislative framework is seen by the police as broadly fit for purpose and the range of criminal offences available to the police is sufficient to deal with the situations encountered.”
Yet the Bill proposes that a union will lose protection for peaceful picketing and will therefore be liable to injunctions not to picket or claims for damages after the event unless:
• The union appoints a picket supervisor
• The supervisor must be familiar with a Code of Practice on picketing (it is not clear whether this is the existing Code of Practice or a proposed revision of that code or an entirely new code, yet to be drawn up)
• The supervisor has taken reasonable steps to tell the police their name, where the picketing will take place, how they may be contacted
• The supervisor has a letter of authorisation from the union
• The supervisor shows the letter to police or “any other person who reasonably asks to see it”
• The supervisor wears a badge or armband readily identifying them as such
The government has also “consulted” on further proposals. Two weeks before industrial action starts, unions will be required to give the following information to the employer, the police and the Certification Officer:
• Specify when the union intends to hold a protest or picket
• Where it will be
• How many people it will involve
• Confirmation that people have been informed of the strategy
• Whether there will be loudspeakers, props, banners etc
• Whether it will be using social media, specifically Facebook, Twitter, blogs, setting up websites and what those blogs and websites will set out
• Whether other unions are involved and the steps to liaise with those unions
• That the union has informed members of the relevant laws.
This is the modern equivalent of having to give notice of an intention to use the telephone, or send a letter. Any change made by the union to these plans would also have to be published.
Failure to comply with these obligations would enable the Certification Officer (under new powers in the Bill) to fine the union or direct that it provides further information; moreover, any failure to publish the plans would be taken into account in any civil proceedings.
No doubt it will, in due course, also be proposed that such failure would also render the industrial action unprotected.
No other organisation has to comply with obligations of this kind, with no advance notice to the police of other protests being required. These far-reaching powers have been widely condemned on civil liberties grounds, particularly because of the existing battery of legal powers available to the police and employers.
Civil liberties bodies other than trade unions should watch out, for if the government imposes such restrictions on trade unions then it is certain that similar requirements will be imposed more widely to restrain civil protest.
Yet it should not be doubted that further restrictions on pickets and protests away from the workplace will be introduced as the Bill goes through Parliament. These further restrictions will be aimed at the industrial dispute campaigns successfully conducted by unions such as the GMB and Unite (called “Leverage” by the latter).
The Bruce Carr Review was meant to produce findings on which such legislation could be based but Mr Carr QC declined to make any findings and merely recorded the untested, self-serving hearsay evidence of a number of employers. That will not restrain the government.
Neutering labour’s political influence
Tories want to return to the 1920s with fund opt-in
The aim, it seems, is to reduce the income available to trade unions for political purposes, whether it be to make donations to political parties, or to campaign at elections.
The importance of political action by trade unions is acknowledged by the European Court of Human Rights (ECHR), which recognised in Aslef v United Kingdom that: “Historically, trade unions in the United Kingdom, and elsewhere in Europe, were, and though perhaps to a lesser extent today are, commonly affiliated to political parties or movements, particularly those on the left.
“They are not bodies solely devoted to politically neutral aspects of the well-being of their members, but are often ideological, with strongly held views on social and political issues.”
It is offensive that democratic members’ organisations like trade unions, dedicated to the defence and advance of members’ economic and social interests, should be restricted in using their funds to support political parties or political policies for those ends. Nonetheless, in Britain, trade union political activity has been subjected to tight legal restraints since 1913.
Made even more restrictive by the Thatcher government in 1984, this legislation prohibits the use of trade union funds unless a number of statutory requirements are met (see factbox, left).
The Bill proposes a major revision of these procedures, reminding us of what happened immediately after the General Strike in 1926.
In 1927 the rules of the game were changed. Trade union members were required to opt in to the political fund if they wanted to contribute rather than opt out. This continued until 1946 when the original position was restored by the Attlee government. In the Trade Union Bill the government proposes to return to the General Strike era.
• The opt in obligation will apply to existing as well as new members
• Trade unions will have three months after Act comes into force to ensure existing members opt in, after which their levy will lapse
• Members who have opted-in may opt out at any time by giving notice to the union.
• The opting in notice will lapse after five years and will have to be renewed by all those who have opted-in
Like the 1927 Act before it, the Bill transforms the nature of trade union political engagement.
By individualising this activity, the proposed changes separate member from organisation, and undermine the principle of collective power fundamental to effective trade unionism. By doing so, the government contravenes its own duty to respect trade union and worker rights, outlined in ILO Convention 87, article 3.
• Currently, a political resolution must be in force in relation to the trade union in question, whereby the members have approved the adoption of political objects within the preceding 10 years
• Any political activity falling within the statutory definition of political objects must be funded from a separate political fund in accordance with the political fund rules of the union
• Every member of the union must be free to claim exemption from contributing to the political fund and must not suffer discrimination or disability for doing so.
Bosses get more time while unions get less
Unions getting higher hurdles in an effort to smooth companies’ paths
Under the existing “detailed and complicated way in which strike action is procedurally circumscribed by the ballot provisions” (as a Court of Appeal judge put it), trade unions are required to give notices of various kinds to the employer involved in the dispute.
The Bill adds to these already extensive obligations in five different ways:
• The ballot paper will have to contain additional information, including:
• A reasonably detailed indication of the matter or matters in issue in the trade dispute to which the proposed industrial action relates
• Where workers are being balloted for action short of a strike, the nature of the action must be specified
• Further information must be given of the dates of the proposed action (clause 4)
• The notice of the ballot result to members will have to include information about whether the 50 per cent voter participation was met, and in the case of the so-called “important public services” must include information about whether the 40 per cent voter support threshold was met (clause 5)
• The union will have to include information about industrial action in its annual report to the Certification Officer (the statutory body established in 1976 to supervise trade unions):
• The information must include details about each dispute in which the union has been engaged in the year in question, the action taken and its duration.
• The union must also supply to the Certification Officer the same information about ballot results as it must supply to its members in the ballot result notice (clause 6);
• The union will have to give 14 days’ rather than seven days’ notice to the employer before taking industrial action with the authority of a ballot (clause 7);
• A ballot mandate will be valid for only four months. If the dispute is not settled in that time and if the action is to continue, the union must hold a fresh ballot for authority to continue taking industrial action (clause 8).
These further restrictions have no legitimate purpose; they are simply traps and hurdles to enable injunctions against industrial action or damages claims after the event. The reality is that there is no major problem posed by industrial action in Britain — except that it is so restricted.
Indeed, the previous government proclaimed a “dramatic decline” in working days lost through strikes from an annual average of 12.9 million in the 1970s and 7.2m in the 1980s to less than 700,000 per year over the last 20 years.
The average number of working days remains around the average for EU and OECD countries. The latest figures were published by the Office of National Statistics (ONS) in the same week as the Bill.
The ONS commented: “There has been a significant decline in the number of strikes since 1995.
“Though volatile, the number of working days lost has remained broadly the same over this period … The strike rate in the last 10 years is generally lower than in previous decades.”
• Currently, a notice of intention is required seven days before the ballot opens. This must include numbers, categories and workplaces of the workers balloted
• Notice of the ballot paper itself goes to the employer at least three days ahead and explains the legal effects of industrial action
• Notice of the ballot result must be given to bosses and voters, as soon as reasonably practicable
• Notice of intention to take industrial action must be given at least seven days in advance, with details of the numbers, categories and workplaces of those involved
Certification officer will become a tory enforcer
Expansion of hitherto respected official’s role would destroy neutrality
Previous sections show that proposals in the Trade Union Bill would attack three core labour rights:
• The right to organise
• The right to bargain
• The right to strike
The restrictions are bound together by new powers which will be given to the Certification Officer, a government-appointed “trade union regulator” who issues certificates of independence and deals with complaints from members about the breach of union rules.
That role, held since 2001 by former employment solicitor David Cockburn, is about to be dramatically transformed, with a new battery of powers for the regulator, some of which we encountered above in relation to picketing.
Most strikingly, however, the officer will now have the power to initiate action against a trade union even where there has not been a complaint by a member.
This applies specifically in relation to trade union elections, trade union political funds, and trade union amalgamations.
It need hardly be said that as a matter of constitutional principle this is an extraordinary proposal, given that the officer will be empowered on behalf of the state to:
• Bring a complaint against a trade union
• Make a decision over the very matter about which he has brought the complaint
• Use other new powers to impose a fine on the trade union they have investigated and upon which they have decided
The Bill provides particular powers for the Certification Officer to conduct investigations — or to delegate investigations to outside bodies (no doubt the big accountancy firms will be rubbing their hands at the prospect).
The consultation paper makes clear that the officer will act on information from third parties, which no doubt a hostile media will be enthusiastic to provide, as well, of course, as employers (who will risk no legal costs in raising a complaint in this way) and disgruntled members of the public, MPs and others.
And to rub salt in the wound, the officer is to be given the power to impose a levy on trade unions to make them pay for running the office.
They are to be funded by the very organisations they are to investigate, and to initiate investigations into matters about which members already have a right of complaint.
It will be hard to avoid the conclusion that people appointed to this office in the future will be seem as little more than the ideological pit-bulls of Tory ministers.
Through its recklessness the government will diminish an important position, occupied hitherto by highly respected certification officers.
Economically and legally illiterate, this Bill would be a disaster for Britain
In launching the biggest assault against free trade unionism for a generation, the Tories have revealed high levels of legal and economic illiteracy.
As to the former, we recall a lecture given in 2006 by one of Britain’s most distinguished judges.
Lord Bingham said that “the existing principle of the rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations. I do not think this proposition is contentious.”
Nor do we. The proposition applies to ILO Conventions ratified by Britain as it does to all other treaties, the Conventions in this case having been ratified by governments led by both Labour and Conservative prime ministers.
Indeed it was the Thatcher government that ratified ILO Convention 151.
Several of the provisions of the Bill and the accompanying regulations on employment agencies, in further restricting the right to strike and to picket, violate ILO Convention 87.
Other provisions and subsequent announcements violate ILO Conventions 98 and 151 (invalidating and prohibiting collective bargaining on the use of check-off in the public sector). The provisions of the Bill dealing with trade union facilities (clauses 12-13), violate Conventions 98, 135 and 151 to the extent that they empower ministers to unilaterally rewrite collective agreements dealing with facilities.
As to economic illiteracy, the consensus of economic thought today (including IMF researchers) is that the destruction of collective bargaining is both bad for the economy directly and a significant contributor to the growth of inequality. The diminution of trade unions’ industrial power may appear attractive to right-wing back-bench Tories but it is, in effect, shooting the economy in the foot.
It is a fact that collective bargaining raises wages, helping to resolve a fundamental problem in the economy at present, namely diminished purchasing power. Higher wages allow people to spend more. This stimulates demand in the economy and hence economic activity. Small employers are the greatest beneficiaries. The state too benefits by greater tax receipts and reduced expenditure on low-wage subsidies and income for the unemployed.
Collective bargaining is also essential for the achievement of social justice at the workplace. In the absence of collective bargaining, the outcome of the conflicting interests of employer and workers otherwise reflects the inherent imbalance in power between them.
That is a price the government thinks well worth paying, of course.
But although lawyers and economists will express frustration about these powers and the authoritarian drift that they reveal, it will not be by lawyers’ submissions or economists’ books that this Bill will be defeated. Trade unionists will have to learn from the past about how to defeat repressive laws.
• How was it that the Industrial Relations Act was defeated? How did our forebears Kill that Bill?
• And why is it that the Thatcher laws are still with us? How did our forebears fail to Kill those Bills?
The answers to both questions will be found in political and industrial arenas, not in courtrooms or lecture theatres.
In the meantime we conclude with this reflection. Widespread collective bargaining was the technique nearly universally adopted throughout the Western world in the 1930s after the crash of 1929 and the following Great Depression — and it worked over the next 50 years. It still works in the strong and efficient economies of Germany and Scandinavia.
The government’s proposals ignore this truth: the Trade Union Bill is not only “not fit for purpose,” it is wholly irrational in design and delivery.
The Institute of Employment Rights seeks to develop an alternative approach to labour law and industrial relations and makes a constructive contribution to the debate on the future of trade union freedoms.
The Campaign For Trade Union Freedom was established in 2013 following a merger of the Liaison Committee For The Defence Of Trade Unions and the United Campaign To Repeal The Anti Trade Union Laws.