Trade Union Bill (Fifth sitting)

Ian Mearns Excerpts

Tuesday 20th October 2015 Public Bill Committees

On amendment 1, as I explained earlier clause 2 provides that industrial action will only be lawful if at least 50% of those who are entitled to vote participate in the ballot. Many organisations, including the TUC, are concerned that employers will rely on the wording of the clause to bring legal challenges. Given previous attempts to frustrate union activity, there is reason to suspect that employers will argue that some members who were entitled to vote did not receive a ballot paper, that more members were entitled to vote than were balloted and, therefore, that the minimum 50% turnout was not met. Our amendment would provide that the 50% turnout requirement should apply only to members who were sent a ballot paper. The amendment would provide trade unions with increased certainty that they have complied with the 50% turnout requirement and that they are not subject to vexatious claims or attempts to undermine ballots that have been undertaken in good faith.

[Ian Mearns (Gateshead) (Lab)]

Of course, in all of these things we want reasonable people to behave reasonably, but the new ballot thresholds may provide a perverse incentive to employers not to seek an amicable resolution to a potential strike situation because of the heightened likelihood of a no vote with, first, people who do not vote counting against and, secondly, the possibility that the threshold might not be met. An amicable settlement will become less likely, particularly if an employer—there are some employers like this—feels that it is an advantage to press it to the ultimate sanction.

[Stephen Doughty]

Indeed. I also suspect that that would be the case if employees suspect that an employer will use badly drafted clauses such as this to attempt to bring legal proceedings against the conduct of a ballot. This is all about ensuring the balance of power and responsibility between employers and employees in order to promote dialogue, negotiation and settlement. I agree with my hon. Friend that there are many provisions in the Bill that seek to undermine that balance and, therefore, undermine the possibility of negotiations that would ultimately prevent industrial action or strikes.

Amendment 2 seeks to protect trade unions from legal challenges in the event that they may have inadvertently sent a ballot paper to an individual who is not entitled to vote because they are not employed by the employer involved in the dispute. That is an important point in exposing some of the risks in the Bill as currently drafted. Business structures in the UK are increasingly complicated, and outsourcing is prevalent in many companies. Companies use many different structures and set-ups to conduct their operations. As a result—some members of the Committee might be surprised by this—individuals are often not aware of who is their legal employer. The amendment would mean that unions could rely on information provided by their members about who they believe their employer to be, rather than needing to make additional inquiries of the employer. The amendment also states that the 50% turnout requirement will only apply to individuals

“whom the union reasonably believed would be induced to take part in the industrial action”

when the ballot was issued. That wording would bring clause 2 in line with existing case law on industrial action ballots and would mean that unions are less vulnerable to vexatious legal challenges. Will the Minister share whether he believes that the clause, as it stands, is in line with existing case law on ballots and whether risks such as those I have exposed here exist?

[Ian Mearns]

Another clause will remove the check-off system for some employers. The check-off system provides, through the payroll records, a record for employers of trade union members in a particular employment situation. Removing the check-off system, tied with clause 2, removes the ability of employers to know who is eligible to vote in a strike ballot.

[Stephen Doughty]

That is an important point. During our considerations we will see that, rather than hanging together coherently, the Bill belies its original drafting intent and is more like a Swiss cheese full of holes. Many aspects of the Bill do not sit together well because they are being put together for a different purpose than what the Government say they are trying to achieve.

Amendments 7 and 8 would apply similar principles to those that I have just laid out, to clause 3 of the Bill which deals with the proposed 40% threshold. I know we will come to that in due course. We have a number of serious concerns about the 40% threshold that go beyond even our concerns about the 50% threshold, but the same principles exist. If we are to have thresholds, we need to ensure that unions will not be opened to all sorts of vexatious legal challenges.

Amendment 20 would apply a similar principle to the reporting requirements on ballots outlined in clause 5 of the Bill. Amendment 23 would remove the requirement on trade unions to take the responsibility of informing members and employers whether the 50% turnout threshold was met and, where relevant, whether the 40% turnout threshold was met. I do not understand why the Bill—evidenced throughout its text—seeks to bog down trade unions in extra red tape, particularly when the Government claim that it is all about reducing regulation and burdens. Surely employers would be able to easily calculate whether a trade union has met any statutory thresholds applied using the numbers provided by the trade union? I really do not see why this reporting requirement is necessary.

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[Stephen Doughty]

That is indeed the case. To touch on the point made by the hon. Member for Glasgow South West, low-paid workers are more likely to move and change address, and they might not regularly update the trade union on their latest details.

Unison is very clear:

“Rather than enabling such members to participate more easily in trade union ballots, the Trade Union Bill will restrict the democratic rights of working people and the ability of trade unions to represent their members in the workplace. It will ultimately lead to a diminishment of workplace democracy.”

We also had a response from UCATT, an important union representing workers in the construction sector. We did not hear from UCATT in the oral evidence sessions, which was a shame, but it has submitted written evidence, which says:

“It should be also noted that for trade unions taking strike action is always a last resort, no union asks members to lose money on a whim, it is only called for following an end to protracted negotiations that 90% of the time reach an amicable settlement.”

That point cannot be overemphasised. Unions want to find resolutions to disputes, but the Bill puts a whole series of barriers in the way of successfully resolving disputes.

Finally, it is important to look at some of the Bill’s potential legal contraventions. I mentioned the evidence given by Thompsons Solicitors. It also submitted evidence to the Government’s consultation, the conduct of which was significantly lacking, as identified by the Regulatory Policy Committee. In section 10 of the submission from Thompsons Solicitors to the Department on the consultation on ballot thresholds in important public services, it says:

“The ballot thresholds in ‘important public services’ will engage Article 11 of the European Convention on Human Rights. Any restriction on the right protected by Article 11 must be ‘prescribed by law’ and ‘necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’. To be ‘prescribed by law’ the proposed legal framework must have sufficient clarity and precision to enable the trade union on whom the restriction is imposed to regulate its conduct accordingly (i.e. to know exactly which of its members the additional threshold applies to). There is a very real prospect, on the evidence so far, that the government’s attempts to meet this standard will fail. It is completely unacceptable to palm responsibility for identifying whether a particular member is covered by the additional threshold off on to the trade union, (paragraph 17 of the consultation). The problem will be particularly acute when considering ‘mixed’ balloting constituencies—i.e. ones including some members who are covered by the additional ballot threshold, and some who are not.”

The complexity and uncertainty created by the way the Bill is drafted provides all sorts of grounds for legal challenge and undermines the ability of unions to stand up for their workers. Industrial action must always be seen as a last resort.

[Ian Mearns]

My hon. Friend makes a powerful speech. We are in a period of historically low levels of industrial action, with only about 300,000 days lost to strike action in the last year or so, compared with about 130 million days lost to sickness absence. From that perspective, we are looking at such a low level of disruption from industrial action compared to sickness and industrial illness. It accounts for just 300,000 days, as compared to 130 million.

[Stephen Doughty]

The statistics my hon. Friend quotes are very accurate. During the oral evidence sessions, we mentioned a number of times that the impact of industrial action on actual days lost, whether to customers or parents or users of the health service, is very small compared to the number of days lost for other reasons. We only have to look at the statistics collected by Transport for London on lost customer hours. Far more customer hours are lost due to signal failures, broken-down trains, weather and so on than as a result of industrial action. In the words of the Chartered Institute of Personnel and Development, the Government’s plans to reform trade union law are an “outdated response” given the challenges that employers actually face today, many of which my hon. Friend referred to.

[Ian Mearns]

One passenger group working on railway delays estimated that more working hours were lost from people being delayed on their train journeys than were lost from industrial action taken by railway workers.

[Stephen Doughty]

That is indeed the case. It is certainly borne out by the evidence that I have seen from Transport for London. The Committee has heard from a number of train companies and representatives of passenger organisations, and indeed they also implied that this was the case. The reality is that the impacts of industrial action are very small. In conclusion, I fear that the Bill and especially clause 2 will make industrial relations worse, not better. Introducing arbitrary thresholds beyond international norms, potentially in ways that are illegal, and without any clear evidence of need underpinning that or any accompanying measures to ensure the maximum participation possible—as I said, we will return to this—suggest an ill political intent, quite frankly. That is why we will oppose clause 2 today, and we may seek to move any one of these amendments to a vote, depending on what the Minister has to say.

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[Julie Elliott]

Absolutely, and that is a fundamental point. If the motivation behind the Bill is to try to limit industrial action, its net effect will be to make things worse.

[Ian Mearns]

Building on my hon. Friend’s experience, industrial action is usually taken by members of trade unions when extreme frustration at a lack of progress in negotiations is being experienced. Therefore, given the levels of frustration that exist in these situations, would the imposition of thresholds enacted by this legislation make wildcat action more likely?

[Julie Elliott]

That is highly possible: if people do not have an avenue to resolve their dispute with their employer—in an organised workplace with trade unions, that is usually through their trade union discussing the issue with the employer—that would be an inevitable consequence. None of us wants to see that kind of action. In the past 10 years or so, legislation in this area has led to very good industrial relations. I remember very personally and vividly, as the daughter of a miner living through the 1970s, how industrial relations used to be in this country. None of us wants to end up in that situation again. It was a dreadful time to live through. What we want is constructive, good relationships where industrial action ballots are an absolute last resort. The changes that the Bill proposes will make that impossible.

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[Nick Boles]

I will make a little progress, if I may, and I am sure that we will have an opportunity to hear from the hon. Gentleman soon.

The shadow Minister noted that there are many other things that cause more days to be lost than strike action. He mentioned, I believe, sickness, bad weather and breakdowns in machinery. I would bring forward tomorrow Bills in this House if I could abolish sickness, bad weather and breakdowns in machinery, but unfortunately we have to deal with the real world, and we are focusing on a minor adjustment to the balance—a slight rebalancing—on something that we can affect, which is the number of services shut by strikes.

[Ian Mearns]

Will the Minister give way?

[Nick Boles]

I will make a little progress and then I will be happy to take an intervention. All we are saying is that we want strike action to take place on the basis of a clear democratic mandate and not just because a very small minority of union members want it. Opposition Members have made great play of how strikes are always the last resort and no one ever wants strike action based on a tiny turnout. Indeed, we heard in last week’s evidence sessions from some very distinguished and eloquent leaders of major unions who made many of the same points.

I simply draw the Committee’s attention to the fact that in 2015—in this very year—London bus drivers, in a ballot organised by Unite, whose general secretary we heard from last week and who wrote in a letter to the Prime Minister that no one wants to see strike action on the basis of a very low turnout, nevertheless called a strike on the basis of 21% of the members of the union who were eligible to vote actually casting a vote and 18% to 19%, therefore, actually supporting the strike action. We also heard from Sir Paul Kenny of the GMB. In 2014, in a case involving local government workers, 23% turned out to support strike action over pay. We heard also from the general secretary of Unison. In 2014, there was a strike over the pay of NHS workers, and 16% of the members of Unison entitled to vote in the ballot had turned out. The idea that we are somehow tackling a problem that does not exist is shown to be entirely spurious by those figures.

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[Nick Boles]

I entirely agree with my hon. Friend. It is important to have been reminded of John Cridland’s evidence. The hon. Member for Sunderland Central made the claim that the vast majority of businesses do not support these measures. The CBI unequivocally represents more businesses than any other business organisation—that is a matter of fact—and Mr Cridland was very clear that it is not just supporting the Bill but has supported this policy for five years and has only just persuaded a Conservative Government to adopt it. So that was not an entirely accurate characterisation of the position.

[Ian Mearns]

I wonder whether the Minister might reflect for a moment or two on whether enacting this Bill will mean that those members—he talked about the 78% of union members in a particular ballot not voting—have an understanding that an abstention will count as a no vote. That might be the trigger that he does not want, for them to get out and vote in a ballot.

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[Stephen Doughty]

I have no doubt that women are affected by strike action. Nobody on the Opposition side of the Committee is attempting to deny that. We are making a point about the impact of the Bill as a whole and its disproportionate impact in every strike ballot that is going to be undertaken under the new rules.

[Ian Mearns]

Do fathers take children to school?

[Stephen Doughty]

Yes, fathers do take children to school, but we are concerned particularly about the impact of the Bill on women trade unionists, which many witnesses have made clear. As I have said, trade union members represent one tenth of the UK population. I will come back to the Minister’s comment on that in a moment.

The hon. Member for Glasgow South West made the point that trade unions will only in very rare circumstances proceed with industrial action if they are not going to be able to get their members to take part. That should be the real test of whether or not there is consent in the broader sense. I liked the hon. Member’s reference to apparently Jedi-like powers to induce members into industrial action. All I can say is that this is not the Bill Ministers are looking for.

The Minister made some very false divisions. I intervened when he made the point that Opposition Members are somehow standing up for militant trade unionists and Government Members are standing up for ordinary members of the public. What absolute nonsense! The idea that there is such a division is simply not the case. Every one of those 6 million trade union members is a member of a family who care about their conditions—whether health and safety, pay, pensions, or working arrangements. I believe they have deep concern about many of the actions that the Government are taking to undermine workers, particularly in the public sector.

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[Stephen Doughty]

My hon. Friend makes an excellent point. I am sure that, without the Bill, we would get into a wider debate about the Government’s attitude towards public services and their funding. The Minister talks about the Bill being a minor adjustment. That is simply not the case. It is the most dramatic change to trade union legislation in a generation. That is the considered view of many of the legal experts and others who have examined it. It is not “tweaking” to change the rules on abstention, potentially in breach of international conventions. It is very significant. The way that the Government and the Minister have been dressing this up as a tiny movement here and there to bring things in line is disingenuous.

[Ian Mearns]

We are getting to the nub of the problem the Bill is trying to sort out. Government Members have repeatedly talked about the disruption caused by industrial action in schools, but thankfully in this country industrial actions in schools are few and far between. To put it in context, according to the ONS, the problem the Bill is trying to sort out—industrial action in this country—added up to just 0.00005% of all days worked. We are sitting in this room trying to sort out that problem.

[Stephen Doughty]

My hon. Friend makes a very clear point about the problem the Bill seeks to solve. We have heard that again and again. I am pleased that the Minister said he will ask the ONS to look at the issue of indirect impact. It will be helpful for the House to have that information. I suspect it will confirm many of the views that have been expressed by Opposition Members and many of the witnesses. It is disappointing that some witnesses, including the CBI and others, made grand statements about the need for the Bill without being able to justify it. Even without ONS statistics, there are other ways of making the case clearer, but they have been unable to do it.

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I am surprised—this has been revealed at many stages of the Bill, including on Second Reading—that on such a matter of potential clash with the devolution settlement, and particularly in the light of the Government’s agenda on local government devolution in England, there has not been the level of consultation that one would expect on these issues.

[Ian Mearns]

Hon. Members will be aware that in the north of England the Government are seeking to establish elected mayors covering regions or sub-regions, and great cities and local enterprise partnership areas in places such as the north-east of England. Does my hon. Friend see the capacity for additional conflict if elected mayors are established and then instructed by Her Majesty’s Government about how they should conduct industrial relations affairs within their own elected area?

[Stephen Doughty]

I agree with my hon. Friend. Not only does that apply to such relationships going forward, but we need to look at the impact of the Bill retrospectively. I would appreciate clarification from the Minister on that. Obviously, local and devolved government across the UK already has extensive contractual arrangements on matters such as check-off, facility time and so on. That is particularly true in the public sector, but also in relation to bodies that receive public funding. Those things are woven into the fabric of employment contracts up and down the land. The Bill simply drives a coach and horses through that and could result in a serious number of legal challenges.