6 November 2015

By Tonia Novitz and Michael Ford, Professors of labour law at Bristol University

This post first appeared on October 12, 2015 on the policybristol website. It analysis the Bill, comments on its likely conflict with international law and provides links to useful documents. Since publication of this article, the Bill has passed through its Committee Stage and is due back in the Commons in its amended form for its third reading on 10th November 2015. The Government has also published its response to comments received to its consultation paper entitled Tackling Intimidation of Non-Striking Workers. IER will post further analysis of both developments in due course.

On 5 October 2015, George Osborne declared that the Conservative are ‘now the party of work, the only true party of labour’. The Trade Union Bill presented to Parliament in July 2015 demonstrates the hollowness of this claim. This proposed legislation has had little attention from the media but promises to place alarming restrictions on the rights of workers and their trade unions, probably in anticipation of deep budgetary cuts affecting the public sector which are, of course, likely to generate protest…

The measures in the Bill include: changes to the already very strict balloting requirements on strikes; new restrictions on peaceful picketing; new rules on the political activity of trade unions; restrictions on trade unions’ facility time in the public sector (with check off also in the Government’s sights); and greater controls on trade unions by the Certification Office. At the same time, the Government has published draft regulations allowing employers to hire agency workers as strike-breakers, and proposes further restrictions on protests organised by trade unions.

Accompanying the publication of the Bill on 15 July 2015 were three Consultation Papers and Impact Assessments. These publications were only partial in coverage, were based on limited evidence, gave little time to reply and did not even invite comment on all measures, leading to trenchant criticisms by the Regulatory Policy Committee.

The Government’s brief European Convention on Human Rights (ECHR) Memorandum”, in which the Government contended the Bill’s provisions were justified and proportionate and so did not infringe Articles of the European Convention on Human Rights (ECHR), entirely ignored relevant international human rights standards, such as Conventions of the UN’s International Labour Organisation (ILO), and failed to deal with all the potential effects of the Bill.

Balloting Requirements

The UK is anomalous in Europe, where very few countries impose balloting requirements on trade unions taking industrial action. The existing balloting and notice requirements in the UK, requiring a postal ballot and a majority vote in favour before a strike, already fall short of the standards set by the European Social Charter 1961 (ESC)”. The new balloting requirements in the Bill require, in addition, that at least 50% of the workers actually vote in strike ballots, as well as at least 40% of the total constituency voting in favour of a strike in ‘important public services’.

These new rules are far stricter than those in national, local or European elections. They will breach the standards in ILO Conventions to which the UK is a signatory.

A 50% turnout rule was found to be ‘unreasonable’, ‘excessive’ and place a substantial limitation on the right to strike by the ILO Committee on Freedom of Association in Case 2698 (Australia) (2010).

The 40% rule for ‘important public services’ is inconsistent with ILO decisions on what can be deemed ‘essential services’, which cannot include teachers or ordinary transport workers. Yet, while claiming the new measures are about ensuring democracy, the Government refuses to exercise existing statutory powers to allow unions to use e-balloting or workplaces ballots, which would promote larger participation in a ballot.

Agency Workers

Replacement of strikers by agency workers is illegal in many European states, such as France, Spain, Belgium and Norway. This measure too is a clear breach of ILO standards, which only allow requisitioning of replacement workers in the case of some important public servants, truly ‘essential’ services and cases of acute crisis (see findings of the ILO Committee of Experts on the Application of Conventions and Recommendations).

Picketing

Just as alarming are new restrictions on pickets. In other jurisdictions, picketing is lawful as long as it is peaceful, as it is under the ILO Conventions, the ESC and the ECHR. Even if a picket is wholly peaceful, the Bill will require a ‘picket supervisor’ appointed at every worksite where a picket takes place for it to be lawful. The practical difficulties of doing this are enormous. Take a strike on the London Underground, the railways, at a nationwide chain-store or at schools – each ticket office, each station, each shop, each school (and many more locations besides) is a workplace, at which workers are entitled to attend for lawful picketing. For example, recent strikes on the railways listed 1,127 workplaces in the ballot notice and a strike in the London Underground in 2013 listed 454. The proposal also ignores the serious threat to the civil liberties of supervisors, who must be prepared to advertise their trade union membership to their employer and the world and give their name and contact details given to the police.

Protest

Lastly, the Government also proposes new restrictions on union-organised protests even where no strike is involved. Whenever a union wishes to organise any kind of protest, and no matter how peaceful, it will have to give 14 days’ advance notice to the employer, the police and the CO, explaining where the protest will take place, how many people will be involved, whether there will be loudspeakers, whether social media will be used and so on. No similar constraint is placed on any other organisation. It too is probably inconsistent with the protection of freedom of assembly and expression under the ECHR. It will prevent unions organising spontaneous protests where, for example, a whole workforce is sacked.

A wide range of organisations criticised the Bill, including the CIPD, the professional body for human resources and people development, as well as civil liberties groups, such as Liberty which stated that: ‘Ideological motivations of any Government are part and parcel of politics but should not imperil the protection of rights and freedoms of individuals.’ [cited in House of Commons Hansard, 14.09.15, col. 828] See also the Joint Statement by Liberty, the British Institute of Human Rights, and Amnesty International.

The Government, it seems, is ‘the only true party of labour’ as George Osborne claims so long as workers are quiescent and obedient. If they want to strike or protest about their work conditions, George is no longer their friend.

This blog represents the views of Professor Michael Ford QC and Professor Tonia Novitz and draws on international and European law, as well as comparative studies of industrial relations in other Commonwealth and European countries

See M. Ford QC and T. Novitz, ‘An Absence of Fairness: Restrictions on Industrial Action and Protest in the Trade Union Bill 2015’ (2015) 40(4) Industrial Law Journal (forthcoming December 2015).