16 February 2016

Peers from across parties have argued new legislation in the Trade Union Bill has no justification and will agitate rather than resolve conflict between employers and unions.

In the second day of Committee Stage last week, the House of Lords debated clauses relating to adding further information to voting papers, unions providing more detailed information on the outcomes of ballots, the doubling of notice periods before industrial action is taken, the expiry of ballot outcomes after four months, new rules governing legal picketing, and plans for trade unionists to opt-in – rather than out – of unions' political fund.

Clause 4: Information to be included on voting paper

Peers highlighted that Clause 4, which prescribes specific details that must be included on voting slips when unions are balloting for industrial action, will have a detrimental effect on conflict resolution between workers and employers, and will invite lengthy litigation. The details that would need to be included under the Tory proposals include exactly what the union is negotiating for, and when and for how long any action would occur.

Labour's Lord Lea of Crondall pointed out that including too much information in ballot papers could lead to much longer disputes: "It seems to me that there is a risk in the clause that the government want to include because the unions would be almost obliged to put everything and the kitchen sink in the list of demands. This could be counterproductive and make it much more difficult for unions and employers to resolve disputes. Why? Because they might find it difficult to convince members that they should accept a settlement that does not deal with all the issues listed in the ballot paper."

Liberal Democrat Lord Oates added that the proposals are a "recipe for litigation", and highlighted that this argument has already been made by the Conservative Party's own adviser on employment law Tom Flanagan.

"The provisions are a politically motivated attempt to tie the trade unions up in red tape," he stated. "They are poorly drafted and will be a lawyers' paradise. They will ensure that disputes are drawn as widely as possible and that they are as hard to resolve as imaginable."

Lord Oates also argued that the provisions are completely unnecessary and without mandate – a stance taking by many other peers, including Labour's Lord Collins of Highbury, who criticised the government's impact assessment on the issue.

"Detailed examination of the impact assessment does not provide an evidence base for either the scale of the problem or the scope of the solution. The impact assessment is wrong on cost and on behaviour…If it ain’t broke, why fix it? Is this another round of gesture politics? It is clear that these measures will add cost burdens and bring about a huge extension of the scope of legal challenges, as well as the creation of open-ended opportunities to frustrate legitimate trade union activity."

Clause 7: Two weeks’ notice to be given to employers of industrial action

The Trade Union Bill legislates to double the notice period unions must give employers of planned industrial action from seven days to 14. The government argues that this will increase certainty for employers and the public and allow them to prepare for strikes by making "contingency plans".

On the contrary, Lord Collins of Highbury pointed out that lengthening the notice period will only increase uncertainty and draw-out disputes.

"With this additional proposed week, we now have one week’s notice to the employer that a ballot is taking place, at least two weeks for the ballot period, then the announcement of the ballot result, before giving a further two weeks’ notice. We end up with a period of balloting for industrial action of some five weeks: five weeks to create uncertainty for an enterprise," he highlighted.

Labour peer Baroness Donaghy added that it is "damaging" to prescribe a notice period in a way that takes "certain judgements away from management and unions", instead of allowing them to negotiate and agree terms for themselves – a process that strengthens relations between employers and the workforce.

She also noted that the government has not been clear on what "contingency plans" employers might take, although it has said it will legislate to allow businesses to take on agency workers as strike breakers.

"I would be interested to know what these [contingency plans] are and what the difference is between them. For instance, is it hiring agency staff to cover which, of course, is more expensive? I do not believe any respectable agency will get involved with this anyway. Will it be hiring people at 4 am from the car park near B&Q on the Old Kent Road—similar car parks are available—which is what the construction industry does? That would certainly be more cost effective as a contingency plan," she said.

In response, Parliamentary Under-Secretary Baroness Neville-Rolfe argued that the public must also be allowed to make contingency plans if they may be disrupted by industrial action and that the longer notice period would allow this. The government's position, she said, was that the doubling of the notice period would also provide more time for employers and unions to negotiate to prevent strike action.

Clause 8: Expiry of mandate for industrial action four months after date of ballot

Conservative plans to void any ballot that finds support for industrial action after four months were also condemned by the majority of peers who spoke.

Lord Collins of Highbury pointed out that as part of this Clause, the government is actually removing the requirement for unions to take action within 28 days of a ballot, and that this in conjunction with the new expiry date for mandates would incentivise lengthier disputes.

" In some cases, these proposals could create an incentive for employers to sit out a dispute rather than engage in genuine negotiations, so it could reward bad employers," he said.

For a Bill that purposes to reduce the frequency of strikes in the UK, Lord Collins also highlighted that this Clause would actually encourage more strikes to be taken.

"Unions will perhaps feel pressurised to organise earlier industrial action to avoid the cost of reballoting. It could end up with unions ensuring that they tick the box and take the action to avoid coming into conflict with the law, adding to conflict rather than seeking mutually agreed settlements," he explained.

The Lord also noted that currently unions and employers can negotiate to postpone action until after the 28-day limit has past if they need more time for negotiations, but the new proposals take away this power so that the four-month limit is non-negotiable. This, too, he said could push unions into taking action earlier rather than holding out for further talks.

A Labour amendment to the Bill proposes that the expiry date be set at 12 months after a vote has been taken rather than four. Lord Collins hit out at the government's line that this amendment would create further uncertainty.

"The Government’s argument is that 12 months is too long to live with uncertainty. The simple fact is that the Bill is constantly creating longer periods of uncertainty. An unresolved dispute is an uncertainty. Talks and negotiations are far better than strike action. The four-month limit just provides for a prolonged series of processes that will keep that uncertainty. Attrition does not seem a modern approach to effective management and employee-employer relationships," he said.

Additionally, Lord Collins refuted the government's claim that the four-month expiry on strike mandates was needed to account for turnover in the workforce. The peer pointed out that turnover is much lower in unionised workforces compared with non-unionised ones.

Clause 9: Union supervision of picketing

The government intends to tighten the rules on union supervision of picketing by making strikes unlawful unless a picket supervisor is chosen, that supervisor makes themselves identifiable on the picket line by wearing an armband or badge, the supervisor makes themselves known to and contactable by police, and is able to provide a letter of authorisation from their union should they be asked for it by their employer or an agency thereof.

Peers highlighted that there is already a code in place for appropriate behaviour on the picket line and that unions have a good relationship with the police. It was argued that the police already visit pickets and speak to trade unionists and that the flexibility of today's voluntary code allows for them to reserve resources only for behaviours that require police action. For instance, the code stipulates there should only be six pickets, but if seven were to occur, and all protests were being held respectfully and within the law, the police would normally not take action to reduce the number of pickets.

It was noted that making such procedures a matter for the law, would discourage trade unionists from putting themselves forward as picket supervisors for fear of being dragged through the courts. Meanwhile, the police could be brought into situations that are not dangerous or intimidating, potentially wasting resources.

Lord Monks, a Labour peer, pointed out that the code is already taken into account when legal enforcement needs to take place.

"For example, it there is intimidation, and there is nobody in charge of the picket line, that makes it a more serious offence than if somebody was there trying to stop it, as is often the case with a picket supervisor," he said.

"To make it rigid statute law that there should be, say, six pickets but there are seven there and the police are supposed to do something about that, seems to be asking for trouble rather than calming it down," Lord Monks added.

Baroness Neville-Rolfe, Parliamentary Under Secretary for Business, argued that making the rules statutory would ensure consistency in the way intimidation is handled, but Liberal Democrat peer Lord Stoneham of Droxford disagreed.

"She said that by making the code statutory we are going to get consistency of approach to picketing because there will be a statutory obligation. Frankly, if she believes that, I will believe anything because you do not get enforcement or consistency just by making something statutory," he stated.

Lord Droxford also told the House he as "amazed" that there are not more instances of bad behaviour on the picket line, as there are very few instances of challenging behaviours in this area.

"Unions play a very important part in exerting discipline and control in these situations," he said. "The point that we are trying to make is that the code, by being voluntary, encourages people…to help enforce consistency and order in the picket line, and if you make it statutory you will complicate the situation and deter that sort of behaviour. That is the problem."

Clause 10: Opting-in by union members to contribute to political funds

The government's proposals to force trade unionists to opt-in to political funds rather than out, as is currently the case, has already received much attention in the Lords and is being scrutinised by a Select Committee. The Trade Union Bill legislates for all existing trade union members to be opted out of political funds unless they request, in writing, to make a contribution within three months of the Bill passing into law. All new members must then opt-in. The decision of a trade unionist to contribute to such funds would be made void every five years, at which point trade unionists must again request, in writing, to opt-in. Political funds do not only provide money to political parties (including but not exclusive to Labour), but also to campaigns against discrimination and to encourage people to vote in general elections.

Lord Collins put it to the House that this is an expensive and highly burdensome piece of regulation to apply to unions in a very short space of time.

"The Government’s impact assessment has stated that the cost of doing this will reach more than £2.4 million every five years. The TUC believes that that is a substantial underestimate; from my own personal experience, I tend to agree. It is a huge cost. That cost is not going not to the Labour Party or anywhere else; it is not going on union services and union benefits. It is an additional cost and a regulatory burden that needs to be taken into account," he said.

Lord Stoneham highlighted evidence given by the Certification Officer (CO) in the Select Committee on this issue, saying he was very surprised to hear the regulator had not been consulted on the proposals. The CO also said he had received very few complaints about the current opt-out process and the way it is administered by unions.

The peer also hit out at the government's decision that trade unionists must opt-in in writing, indicating this appeared to be included simply to encourage people to opt-out of their political funds.

"…these days, nobody responds to correspondence in an efficient and effective way, but they do respond to emails," he pointed out. "If you stick to the writing, rather than going electronic, you are just encouraging the destruction of the funding of the Labour Party."