24 October 2015

Below is a selection of evidence given by experts and interest groups in the Committee Stage of the Trade Union Bill. Video footage of the committee is available here.

Stephen Cavalier, chief executive of Thompsons Solicitors, told the Committee that the Bill was unworkable in several respects. He criticised the lack of clarity around the category of “important public services”. He said; “it is exceptionally difficult to see how a trade union, when balloting, is able to decide whether or not a particular member or group of members is covered by that definition. when the information is in the hands of the employer. You may have a mixed constituency, some of whom are covered and some of whom are not. For example, in a school where some teachers are teaching pupils of under or over the age of 16—so they are partly covered and partly not—it is complete chaos as to whether they are actually going to be covered”.

Dave Smith, secretary of the Blacklist Support Group, was asked if he thought the Bill’s contents would make it easier to blacklist workers. Smith told the committee that his concern over the Bill related to the concept of picket supervisors having to have their names provided to the police, the fear being that it would amount to a “state-sponsored blacklist”. He said; “If the names have to be provided, it is inevitable that the police will collate them and that they will appear on some kind of database somewhere. I am very sceptical about the state keeping a list of picket supervisors. Any member of the public is allowed to come and ask for the picket supervisor authorisations as well, so it could be that employers are also coming and picking up the names, and members of the public. Potentially, you have three separate lists of trade union activists being developed by members of the public, employers and the state, and that could clearly be turned into a state-sponsored blacklist”.

Sara Ogilvie, a policy officer from the human rights organisation Liberty, stated that trade union rights are a fundamental part of the human rights framework, with freedom of association and assembly being article 11 of the European Convention on Human Rights. Concerned about the impact the bill will have on the ability to exercise this human right, she was particularly concerned with the proposed obligation for a union to appoint a picket supervisor, saying that she found this “extremely concerning”. She continued; “The thought that we would require a person in 2015 to wear an armband and carry a letter of authorisation at the behest of the state in order to exercise their rights does not seem right”.

Ogilvie also testified that the proposals in the Bill – like most other Conservative policies – will disproportionately affect women, due to the majority of trade unionists, public sector employees, and those in low paid jobs being women.

President of the Institute of Employment Rights, Professor Keith Ewing, told the committee he had two concerns regarding the Bill’s compatibility with international and domestic conventions and law – the first being how the Bill conflicts with international labour treaty obligations, and the second being how it conflicts with constitutional principles, conventions and practices that operate in this country.

He also raised the issue of how the Bill could potentially cause a fairly significant constitutional crisis by cutting across the devolution settlement.

He indicated that the Bill may be in contravention with International Labour Organisation treaties relating to the right to strike, collective bargaining, and facility time. He is worth quoting at length; “Convention 87 is relevant because it deals with the right to strike. The right to strike is not expressly referred to in convention 87, but it has been read into convention 87 by the supervisory bodies over a number of years. One issue that I think arises in relation to the right to strike is the additional requirement of two weeks’ strike notice. There are lights flashing in my head about that. The second issue relates to the thresholds for industrial action, and in particular the 40% threshold for support for industrial action in some sectors. That, too, is beginning to make lights flash in my head about the compatibility with ILO convention 87.

“There are two other conventions: 98 and 151, which deal with the question of collective bargaining. Convention 98 applies to collective bargaining generally, and 151 deals specifically with collective bargaining in the public sector. One reason I think there might be problems here relates to the Minister’s announcement after the Bill was published about abolishing check-off in the public sector. I think that will cut across collective agreements and raise questions in relation to 98 and 151.

“Another point relates to trade union facility time and the provisions in the Bill, which will give a Minister the right to rewrite collective agreements. That cuts across the idea of collective agreements being voluntary and runs into problems with 98 and 151.

“Before I finish, there is the good question of why we should take the conventions seriously. There are two reasons. First, although people were quite indifferent to ILO obligations in the past, the European Court of Human Rights has, since 2008 in particular, begun to pay particular attention to the importance of the conventions in determining the scope and boundaries of the European convention on human rights itself. There was a very important case to that effect in 2008.

“Secondly, we are reaffirming our vows to the conventions in the free trade treaties that we are now signing. We signed such an agreement with Korea in 2010, and we are about to sign a free trade agreement with Canada. In these treaties, we commit ourselves not only through the European Union, but as a member state to complying with the international labour obligations to which we have subscribed. The conventions are very important”.

Keith’s evidence and that of others in that session, can be accessed here

Representatives from the Royal Colleges of Nursing and Midwives testified that the Bill was fundamentally unnecessary given the low incidence of industrial action in the NHS. They stated that the measures were disproportionate, would be expensive, would sour thus far positive relations between health unions and the NHS, would introduce extra bureaucracy, and could be detrimental to safety in the NHS. They pointed out that productivity increases with facility time, and having trade union representatives in the workplace.

General secretaries Matt Wrack of the Fire Brigades Union, and Mark Serwotka, of the Public Services Union, were also among those giving evidence.

Serwotka stated that his union, which represents public service workers who have experienced 11 years of pay constraint, was concerned with the withdrawal of facility time, the withdrawal of check-off, and as a non-affiliated union that spends over £1m a year on (non-party political) campaigning, the changes to the political fund rules. He made the point that the political fund should not be conflated with Labour party affiliation – PCS victories over the privatisation of criminal fines enforcement in the Ministry of Justice, and the privatisation of the Land Registry would have been ‘devastated by the opt-in, rather than opt-out method’.

He agreed with Ewing’s concerns over devolution; “I will illustrate that with these examples. We have very good industrial relations currently, for example, in Scotland and Wales with the devolved Administrations, who have sat down and agreed with us the need for positive industrial relations, and made it clear that they do not wish to see the withdrawal of check-off or facility time. What we are in danger of seeing is those bodies that have entered into agreements with their workforce for the smooth running of public services being compelled to act against what they think is in the best interests of themselves as an employer and public service users.

“That is particularly concerning because if we look at the civil service when this was done, the last Government effectively compelled all Government Departments to do the same thing, under the guise of this activity being a waste of taxpayers’ money. The Committee needs to know that in the civil service our union offered to pay every penny of every cost that was required to take check-off, so there would be no cost to the taxpayer. Not only was that rejected, but we saw the absurd situation in the Department for Communities and Local Government, where Eric Pickles, as the Secretary of State, withdrew check-off. We took him to the High Court; he lost the case and we won it, on a contractual right to check-off. He cost the taxpayer £100,000 to save £320 a year in the entire Department’s administration”.

When questioned about intimidation on picket lines during fire service disputes, Matt Wrack responded; “Firefighters were picketing their place of work. Replacement agency staff drove up and drove off. That is what happened. There was no pushing and shoving; if you have got images of 1970s TV programmes, that is not what happened in any of these situations… Let us be clear about the right to picket. The right to picket is being interpreted by some people as an attempt to intimidate. The right to picket is about trying to persuade other workers to comply with the call to take action. In this case—again, Ron Dobson seemed to forget the cause of the dispute. The cause of the dispute was that he had issued a sacking notice to 5,000 London firefighters; the entire workforce were being sacked. So you can imagine that some of them were quite irate about that. However, where we had the opportunity to speak to those agency replacement staff, we did so, and in a number of cases the police assisted us in doing that. We put our case to those agency staff; unfortunately, they carried on with the work they were undertaking”. 

He also commented on balloting; “On the point about balloting, we note that both major political parties have recently used modern forms of balloting—for example, electronic balloting has been used by the Tories for the appointment of the candidate for London Mayor—so it seems bizarre to us that trade unions are being told that we cannot use such balloting methods going forward”.

Frances O’Grady criticised the insufficient time frame of the consultation, elaborated on the issue; “I am conscious that a good deal of the debate has focused on thresholds, even though that contravenes the ILO’s clear standards on this issue? It is important to note that, even if all those tests and thresholds were met, the Government also propose that employers should be able to replace striking workers with inexperienced and possibly untrained agency workers, therefore completely pulling the rug from beneath the right to strike. We know that if this was about improving turnout in ballots, the best way to do that would be through allowing unions to use electronic and workplace balloting…the real aim of this Bill and the proposals that go with it is to give employers new ways to take unions to court and thereby impose penalties and seek damages and injunctions against unions. I would suggest that the approach of this Bill is straight out of Norman Tebbit’s textbook from the 1980s”.

To read more, the hansard is available here