Trade Union Bill (Sixth sitting)

Ian Mearns Excerpts

Tuesday 20th October 2015 Public Bill Committees

[Stephen Doughty]

That is a perfect example, which exposes the different industrial relations policies that different Governments across these islands are pursuing and the benefits to the public of avoiding strike action, which is what the Government say that they want to do with the Bill. The example that my hon. Friend just gave stands in stark contrast to the testy relationship that appears to exist, as we heard in oral evidence, between the London fire brigade and the Fire Brigades Union, and the wider context of industrial relations in that city. Surely if the Government’s aim, as they keep repeating, is to reduce industrial action and disruption, particularly in crucial services such as fire, we want to do everything we can to build positive partnerships and come to resolutions, as was the case in Wales.

Amendment 12, in a similar vein to amendment 11, seeks to ensure that the Bill does not interfere with the ability of directly elected Mayors and local authorities in England to manage such services and decide how to manage their relationships with trade unions. It is consistent with the Government’s localism agenda. Amendments 42 and 72 relate to clause 10, on political party fund opt-ins, which we will discuss in due course. Briefly, amendment 42 would ensure that the opt-in requirements for trade union political funds would not apply to public sector employees working in sectors or providing services that are devolved to the Scottish and Welsh Governments. Amendment 72 would ensure that the proposed new opt-in requirements for union political funds did not apply to employees of the Mayor of London or local authorities in England. Again, as a point of principle, we believe that those bodies should be able to make their own decisions about how to manage their relationships with trade unions in those sectors and how those trade unions use their money.

On amendment 51 and 73, I draw the Committee’s attention to a letter dated 10 September 2015 from Carwyn Jones, the Welsh First Minister, to the Prime Minister, expressing his concerns about the Trade Union Bill. In the letter, the First Minister says:

“Similarly, it cannot be right for the UK Government—blind to policy priorities and devolved service delivery reforms in Wales—to specify how much union ‘facility time’ devolved public sector employers should allow. Nor am I convinced that the intention to end ‘check off’ arrangements for trade union subscriptions in the public sector is necessary or appropriate. The Welsh Government operates these arrangements as part of its approach to effective social partnership and is not seeking to change this.”

I know that the Scottish Government are similarly concerned about this matter, and I am sure that my colleagues from the Scottish National party would agree.

These are important policy decisions about relationships and the balance of responsibilities and rights. They are part of the crucial relationship between the Government and public bodies, and those who work in them. Frankly, the Welsh and Scottish Governments have a different approach, and they want to ensure that it is positive.

[Ian Mearns (Gateshead) (Lab)]

My hon. Friend outlines a coherent case. Although the Government maintain that they have the power to enact the Bill across the United Kingdom, it could in practice be enacted in very different ways in different parts of the United Kingdom. English citizens could end up with many fewer rights than their counterparts in Scotland, Wales and Northern Ireland. Do we want English men and women to have fewer rights than their Scottish, Welsh and Northern Irish counterparts?

[Stephen Doughty]

That is a very important point. As I made clear when introducing our amendments, the Labour party believes in exempting all parts of the United Kingdom from the Bill and its provisions. It would be hugely problematic for there to be areas of complete disagreement and an imbalance among the different parts of the UK. That prompts a series of questions, and I hope the Minister can explain how the measure will work in practice, given that the devolved Governments and local authorities are already indicating that they do not wish to implement it.

Amendment 51 would ensure that the new requirements to report on facility time would not apply to employees of the Scottish Government, the Welsh Government, the Northern Ireland Executive or public sector employers working for or providing services that are partially or wholly devolved to those bodies. It would ensure that the Bill does not interfere with the ability of those Governments to manage those services and decide how they engage with their staff and determine their relationships with trade unions.

In the same vein, amendment 73 would ensure that the new reporting requirements did not apply to the facility time of employees of the Mayor of London or local authorities in England. Again, that is consistent with the Government’s localism agenda.

--- Later in debate ---

[Stephen Doughty]

We now come to another area of the Bill where I believe that the Government’s true intent is to frustrate the rights of trade unions to take action, to provide grounds for vexatious legal challenges and essentially, in the words of Sara Ogilvie from Liberty, to make their rights “illusory in practice”. While some aspects of the Bill are designed to stop industrial action going ahead in the first instance, others are there to frustrate the industrial action that does go ahead. This clause is very much in the latter vein.

The hon. Member for Glasgow South West, who has briefly left the room, spoke powerfully in opposition to the Bill on Second Reading. He said that the Government were trying to tie up trade unions in blue tape, and I think he is right. Clause 4 will require trade unions to provide more information on the ballot paper, but unions are already required to ask members on the ballot about the type of industrial action they are willing to take—for example, strike action, action short of a strike, a work to rule and so on. Failure to comply with the clause would enable employers to apply for an injunction to stop the strike going ahead or for damages after industrial action has started. I am keen to see the burden and cost of Government regulation fall wherever possible, and the Government’s one-in, two-out rule is a good starting place. The Government’s own words in their statement online are:

“To reduce the number of new regulations for businesses, the government operates a ‘one-in, two-out’ rule. This helps prevent government policymakers from creating new regulations that increase costs for business and voluntary organisations.

Where policymakers do need to introduce a new regulation, and where there is a cost to business when complying with that regulation, departments have to remove or modify existing regulation(s) to the value of £2 of savings for every pound of cost imposed.”

As this is an example of a significant level of new regulation, I hope the Minister will rise to his feet and inform the Committee which two regulations applying to trade unions will now be removed. He does not want to do so at the moment; I hope he will come to that in his speech.

This additional blue tape and regulation risks making industrial relations in the UK worse, not better. With new regulation come additional risks of litigation, and to reduce that risk many unions are likely to include lengthy descriptions of the dispute on the ballot paper that go well beyond those defined in the clause. That will risk confusing members and confusing the issue when we should be having things as simple and straightforward as possible. It will also mean, in a similar vein to other parts of the Bill, that it is more difficult for unions and employers to resolve disputes and avoid the very strikes and industrial action that the Government say they want to avoid. Many unions may find it difficult to convince members that they should accept a settlement that does not deal with all the issues listed on the ballot paper. Unions may also be reluctant to reach an agreement on part of the dispute for fear that it will prevent future industrial action on other aspects of the dispute. Alongside the Government’s wider proposed changes—lifting the ban on the use of agency workers, for example—that will unbalance workplace relations, assisting employers to plan for future strike action by lining up agency staff.

I ask the Minister to explain why, if the Government’s stated intent to reduce regulation and avoid costs is as defined on their website, it is one rule for the business and voluntary sector and another for the trade unions. The effect of the clause will be to introduce a level of regulation that ties unions up in blue tape and causes a whole series of effects for them.

[Ian Mearns]

The principle that my hon. Friend is outlining is solid. The Government have a hard and fast “one in, two out” rule for business regulation. When organisations such as the Federation of Small Businesses do consultations, their members say they would like less regulation but the organisations cannot put their finger on what they would like to get rid of. Things that would be difficult to get rid of normally come top of the list—VAT returns and health and safety regulations, which protect the employers as well as the employees in many respects. I am wondering whether my hon. Friend can tease out from the Minister what regulations on trade unions he would get rid of in order to impose this set of rules on them.

--- Later in debate ---

[Nick Boles]

Of course. I was ploughing on and I did not mean to forget the hon. Gentleman. It is only because he is outside my peripheral vision—

[Ian Mearns]

You should take the blinkers off, Minister.

[Chris Stephens]

If the Minister wants to access other ballot papers, he should join a trade union. In my experience, when a ballot paper is issued, the trade unions are allowed to insert a sheet of paper that sets out fully the issues in the trade dispute, so why is the clause necessary?

--- Later in debate ---

[Tom Blenkinsop]

As a former trade union officer with the Community trade union, I was part of the National League of the Blind and the Disabled section, which deals with blind and disabled workers who work in Remploy factories—

[Ian Mearns]

Who used to work in Remploy factories.

[Tom Blenkinsop]

Sadly, that is right. My section also dealt with blind and disabled people working in sheltered workplaces, including at Ayresome Industries in Middlesbrough. As well as union officers, the unions brought in, over a prolonged period, signers and Braille writers to ensure that those employees were informed of the situation and the exact nature of any dispute.

--- Later in debate ---

[Ian Mearns]

This is a very important point. Surely, in an industrial dispute there are people who will agree down the line with the union stance, others who are more ambivalent and some members who are against. When a union informs its members and updates them about what has been transpiring in the course of a dispute, members who are against taking industrial action will pass on any misinformation from their union to an employer and the employer will undoubtedly take legal action against the trade union for misinforming the workforce. Therefore, we are clearly seeing a measure here which is not necessary.

[Stephen Doughty]

My hon. Friend the Member for Gateshead makes a very good point. Also, as I said, the amendments encourage some clarity from the Government on the issue of timetables. I think the Minister said that—surely, they have in mind a plan. Actually, most trade unions operating in a dispute are trying to find a resolution from the start: industrial action is a last resort. We have to say that again and again. I imagine that in many circumstances there is no plan—they are hoping that management or Government, whoever it might be, will come forward with a reasonable solution through means other than industrial action to solve a dispute.

--- Later in debate ---

[Stephen Doughty]

I am getting more and more tied up in the Government’s blue tape. Much like clauses 4 and 5, this clause is designed to deter and disrupt trade unions by burdening them with additional requirements.

I am sure that we will have at a later stage an extensive discussion of the role of the certification officer, given the clauses and provisions through which the Government are attempting to expand it. This clause also touches on that issue because it will require trade unions to report to the certification officer on whether industrial action has taken place in the last 12 months, the nature of the disputes, what action was taken and the turnout and ballot results. If trade unions fail to comply, they may face severe financial penalties. Not only does this measure create significant new administrative burdens for trade unions, which do not necessarily gather those data centrally, but many are rightly asking why this new duty is necessary and what purpose it will serve.

As I hope members of the Committee know, though I am sure they will be enlightened at later stages, the certification officer is an independent agency with responsibility for regulating trade unions and employers’ associations. I am concerned, as are others, including some who spoke to the Committee during the oral evidence stage, that the role of the independent certification officer risks being politicised in a wide range of ways through the Bill. This is just one of them. I would like some assurances from the Minister, even at this stage, that the Government are aware of those concerns. Will the Government seek to ensure the integrity and separation of the certification officer? We have already heard how the role will be blurred between investigator, manager of data, executioner of orders and many other things, blurring all the principles of natural justice. It would be good to hear some assurances from the Minister.

This comes down to whether the Government think it is appropriate that an agency of the state, albeit a currently independent one, should gather detailed information about private disputes between employers and unions. Although trade unions have been vocal in their opposition thus far, I believe that many businesses and employers, if they were aware of the full implications of this clause, would object to detailed information about their workplace operations being published online and a permanent record of disputes being retained. We all know about the media organisations that harvest as much information as they can from centrally published databases and so on. I suspect that quite a lot of mischief could be caused by attempting to portray certain employers in ways that I think they would feel uncomfortable with.

[Ian Mearns]

That is an important point. Many employers will reflect that this would not do them a great deal of good in the public gaze. Strikes are often—almost without exception—symptoms of poor industrial relations within the workplace. Many employers, where those industrial relations have broken down to such an extent, may be rather concerned to find that the Government are proposing that detailed information about their workplace operations will be open to public scrutiny. That may well not be good for the very people that the Government are trying to protect here: businesses.

[Stephen Doughty]

I thank my hon. Friend for that very important point. While we heard oral evidence from the CBI and the BCC on a range of issues, they did not seem to be as strident and as certain in their views as on other aspects of the Bill, despite this potentially having a significant impact on businesses and employers. It would appear, I have to say, that their formal consultation with their members was perhaps more limited than one would expect for organisations that seek to represent industry and businesses up and down the country. I find that quite surprising, given the impact that this could have on disclosing information.

--- Later in debate ---

[Stephen Doughty]

I completely agree. Many businesses and employers would have concerns if that were a consequence, unintended as it may be, of the legislation. There are some fundamental issues at stake in terms of the confidentiality of these types of dispute and the potential that this will prevent negotiations and concerns being dealt with in the most sensible, consensual and private way to come to a resolution.

[Ian Mearns]

We can imagine a situation where industrial relations have broken down to such an extent that, in order to embarrass an employer, the wording on the ballot paper and the information alongside it, given the detailed nature of many industrial disputes, could be written in such a way as to create commercial problems for a company. Would my hon. Friend agree? The role of the certification officer in publishing this information could also have a detrimental impact if confidential commercial information were directly related to an industrial dispute.

[Stephen Doughty]

Indeed, and it would be a strange situation were we to find a Minister in a future Committee sitting able to find many examples of ballot papers to read from, casting all sorts of aspersion on the conduct of businesses in industry and the public sector up and down the country.

--- Later in debate ---

[Stephen Doughty]

If the administrative burdens—all the blue tape—were not already sufficient to halt industrial action, make the rights of trade unions illusory and disrupt the activities of their members, and even though the ballot thresholds are rarely used elsewhere in our democracy, the Minister has yet another legislative weapon in his armoury to render the campaigns in the run-up to industrial action, which are often used to seek agreed settlement and avert strike action, impotent. Clause 7 seeks to extend the notice period that unions must provide to employers before industrial action can take place from seven days to two weeks. That is excessive and unnecessary, because trade unions are already required to provide at least one week’s notice of a ballot, allow at least two weeks for the ballot and then announce the result before giving two weeks’ notice of action. In practice, at least five weeks will pass between the start of a balloting process and any industrial action.

It is important to understand that, because the actual practice, rather than the academic approach that the Department appears to be taking to trade union activities, is what matters. Members of the Government gave all these examples in their oral evidence of people being able to prepare for disruption and everything else. Obviously those of us on this side of the Committee would want people to have the maximum amount of information and awareness with which to do that, but five weeks is a long time. Of course, in most industrial disputes such things would have been under discussion for some time. There would be an awareness of tensions and potential problems. There may have been consultative ballots in the past and evidence that there may be disruption. Industrial action is always a last resort.

[Ian Mearns]

My hon. Friend is making a powerful point. Clause 4 has been agreed by this Committee, and is therefore likely to go forward to Report. The important point is that, because of clause 4, employers will be informed of the proposed start date of the industrial action when the people involved in the ballot receive a copy of the voting paper. The notice is already in the Bill, so this is yet another unnecessary measure.

[Stephen Doughty]

I absolutely agree. In fact, I was just about to make that very point. Because of clause 4, employers will know when industrial action, if it is agreed upon, would start before the ballot is run. The information is there. There is already the five-week period, which is lengthy, and most people would consider it reasonable. Again, I believe that this measure belies the Government’s real intent. In my view and the view of the Opposition, the extended notice period will serve no legitimate purpose other than giving the employer additional time to organise the agency workers that the Government want to allow them to undermine the strike or industrial action, and to prepare for the legal challenges and the lawyers’ charter that the Bill provides.

--- Later in debate ---

[Ian Mearns]

Does the Minister accept that intransigence and the refusal to negotiate in a proper manner by employers is also a form of industrial action?

[Nick Boles]

I am realistic; I understand that there are times when unions feel they have no option but to take industrial action. As I have said, nothing we are doing is stopping that, but let us not lose sight of the scale of disruption that strikes can cause, not only for employers, but for members of the public. It is only right that those whose lives are affected are confident that the legislation provides every opportunity to avoid such disruption, if at all possible. Providing a longer period of time for the notice of the intention to take action is an important part of that process.

Some unions must agree with that, because there are instances where they have chosen to give two weeks’ notice voluntarily, such as in October 2014, when nursing staff provided more than three weeks’ notice of a half-day strike. It is only fair that employers and members of the public who rely on services have the certainty of having a decent amount of time to make contingency arrangements and that both parties to a dispute have more time to continue negotiations. I therefore commend the clause to the Committee.

--- Later in debate ---

[Stephen Doughty]

Indeed; that is a likely intent of this. When coupled with the measures on check-off and political funds, the Government are essentially chopping off funding for trade unions and then massively increasing their costs by this measure and the other regulatory burdens imposed by the Bill. Rather than imposing additional restrictions on workers’ ability to strike, the Government should engage in genuine negotiations with trade unions.

[Ian Mearns]

My hon. Friend makes an important set of points. I have a real concern: the Government have stated time and again that the whole thrust behind the Bill is to avoid disruptive industrial action, but it seems to me, particularly where complicated industrial disputes cover many different workplaces, that the proposals in the clause could significantly increase the potential for unwelcome wildcat action, where members’ frustrations boil over and they just walk off the job.

[Stephen Doughty]

That is a risk. Undoubtedly, when the Minister gets to his feet he will talk about ballot mandates from a long time ago legitimatising action years down the line. There is a genuine sympathy with that concern, which is why I tabled amendment 24, which would extend the period before a union would be required to reballot its members from four months to 12 months. The amendment would be likely to assist the resolution of disputes and significantly reduce the administrative cost burden for trade unions involved in protracted disputes, while avoiding the problem that the Minister will undoubtedly refer to as motivation for the clause.

It is a question of reasonableness in all these matters. Most unions want to ensure that there is a strong mandate for action if it is required, which is fair, but four months is such a short period. Given the costs involved, it reveals a different intent behind the Bill and will discourage good industrial relations.

--- Later in debate ---

[Nick Boles]

In deciding how long the mandate should last, it is important that we strike a balance. As I have said, we must remove the uncertainty, which can currently last years. That must be balanced with the need to provide a reasonable amount of time for constructive negotiations to take place. Of course, I am delighted to see that, through the amendment, the Opposition are open to the idea of testing the concept of a time limit to the mandate. The question, as the hon. Gentleman has just asked, is why we have decided on four months, rather than the 12 months that he proposes.

We consider that a four-month period balances the objective of, on the one hand, ensuring that strikes cannot be called on the basis of old ballots and, on the other, allowing sufficient time for constructive dialogue to take place. A period of 12 months would tip the balance too far in favour of the unions to the detriment of everyone else—not just employers, although employers would still have the threat of strike hanging over them for a considerable length of time. Union members should have certainty on the period during which they might be asked to take industrial action. That is particularly important given the consequential effect on their pay. Twelve months is simply too long to expect people to live with such uncertainty. If members have moved jobs, it might not even be the same group of people affected.

According to the Chartered Institute of Personnel and Development, annual staff turnover in 2014 was 13.6%, which means that after 12 months, on average, nearly 14% of the workers who voted for a strike might no longer be in the same job. That must call into question whether the union has a truly valid mandate.

[Ian Mearns]

The Minister is quoting statistics that cover industry and employment in the UK, which includes people who are, by design, on short-term contracts where turnover is built into the system. By the nature of their employment rights, not having two years to protect their employment, such people will probably not go on strike in the first instance. The statistic is being skewed by a group of workers who will have no effect on the likelihood of a strike in another instance.