Lawful Industrial Action (Minor Errors) Bill
Debate between John McDonnell and Peter Bone
John McDonnell (Hayes and Harlington) (Lab)
I beg to move, That the Bill be now read a Second time.
This measure is the first private Member’s Bill of the new Parliament, and several other excellent Bills, which I mainly support, are also listed for today. The previous Parliament lost the confidence of the nation as a result of the expenses scandal, but also through the way in which we dealt with our business. Private Members’ Bills were used almost as toys, and talked out when there was real legislation to be made. I hope that in the new Parliament, with so many new Members, we will treat private Members’ Bills differently—in the right manner for addressing serious issues, with proper discussion. On that basis, I urge all Members to consider matters carefully this morning and allow a Division on the Second Reading of each Bill so that the will of the House can be tested. If there are disagreements, they can be ironed out in Committee and then at our final opportunity on Report.
John McDonnell
One of the techniques for delaying Bills was intervention after intervention. I am no longer willing to participate in that charade. I will take two or three interventions, but it negates the purpose of the House if we allow interventions that simply delay proper democratic decision making.
John McDonnell
I understand the hon. Gentleman’s point. He has intervened very thoughtfully several times in debates on legislation. I hope that we can structure our business co-operatively to allow debate on all measures on Second Reading. Putting away childish toys and the puerile behaviour that has occurred when considering private Members’ Bills in the past would show that we had learned some lessons from the previous Parliament and be a sign of maturity.
The Bill deals with trade union rights and the rights of employers. The measure is extremely small—a couple of clauses—but it could have a significant impact on restoring basic civil liberties and changing the climate of industrial relations in this country. Private Members’ Bills are intended for such small reforms. I shall give some background and speak for a short time; then we can hopefully have a proper debate and move to a Division.
Trade unions have existed in this country for more than two centuries. Statements from every political party in the House support and respect the role of trade unions in representing their members. One of their main roles is collective bargaining on behalf of their members on pay, conditions at work, health and safety and other matters.
However, part of collective bargaining is also unions’ ability to take industrial action when negotiations fail. That can take many forms: work to rule, an overtime ban and, yes, on occasions, when everything goes wrong, as a very last resort, the right to withdraw the labour of trade unionists. There is no explicit right to strike in British legislation—there never has been. If a trade union induces its members to take industrial action, it is still a tort in civil law and can therefore be injuncted against.
However, since the Taff Vale judgment and the trade union legislation in 1906, trade unions gained immunity from legal action being taken against them for tort, which was usually the breaking of a contract. That legislation lasted in its general form until the 1980s. However, in the 1980s and 1990s, 10 successive pieces of legislation attached conditions to that immunity. I was around at the time and heard the debates in this House, and I have looked over them again. The Conservative Government’s stated intention at that time was to ensure and secure the democratic rights of individual trade unionists to participate in decisions on industrial action and to be heard.
That was the intention of the original legislation. It meant that a union was protected in law only if it first conducted a secret postal ballot that was independently scrutinised. Other conditions were added later, including that the employer be notified in detail of the balloting procedure and who was to be balloted, and notified of the outcome. The employer was then to be given a period of notice before any industrial action.
As I said, there were 10 pieces of trade union legislation in the ’80s and ’90s that apply conditions to that immunity. For employer and trade union alike, that created a complex and extremely arduous process that trade unions had to abide by if they wished to take industrial action. The code of practice on industrial ballots and notice to employers was developed—it is dear to every trade unionist’s heart—and approved by the House in 1990. It was revised in ’91 and again in ’94, and added to in 2000. The code statutorily required trade unions to provide, for example, the exact number of trade union members who were to be balloted, details of their workplaces and the categories of those to be balloted. It also required the union to keep meticulous records of the members’ addresses, jobs and workplaces.
That is complicated in itself, but over time, with different industrial practices, particularly the sub-division of companies, outsourcing and privatisation, it became increasingly so. There is now a requirement to produce a matrix of information, which is onerous and complex. Nevertheless, unions have sought to abide by the code, as best they can, to ensure that they retain their immunity. The legislation even goes into the details of what will be written on the ballot paper and how the result is reported. Failure to satisfy any of the conditions renders the union open to injunction.
The House realised that it was increasing the complexity of the legislation, that people are fallible and that mistakes would be made. Therefore, section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 provided that a trade union that failed to comply with the specific requirements would still be protected if there were a small, accidental mistake in the balloting procedure or a failure of another sort that was unlikely to affect the result of the ballot. If for those reasons the trade union failed to comply with the specific requirements, it would still be protected and have immunity.
That was a reasonable decision by this House. The problem is that it has not worked in practice as was intended. I do not think the wishes of the House have been translated to the real world, because of a series of legal actions. Legislators thought they were providing protection from accidental, minor error, but that has not happened. In fact, in a succession of court cases, a minority of employers have used minor errors in the balloting or notification process to secure injunctions and prevent the implementation of the majority decision of the trade union. Those judgments have resulted in a lack of clarity about whether a mistake is accidental or minor. The scope of the exceptions is also unclear: do exceptions include balloting but exclude the notice procedure? There is also a degree of uncertainty about whether a particular error, no matter how minor, affects the overall outcome of the ballot.
Lord Chief Justice Lord Judge picked up the irony that legislation enacted in this House to ensure and protect the democratic right of individual trade unionists to vote and participate in decisions on industrial action is now used to prevent the democratic wishes of those people being respected. That extraordinary irony has occurred as a result of those individual decisions. The judgments frustrate the democratic process that this House thought it was installing and strengthening within trade union legislation.
There are many examples, but I shall provide only a few, based on cases that I have had some involvement in. We have briefings on them from the TUC and the individual unions. By the way, this was one of the key issues debated at the TUC conference this year—representatives of all political parties were present—and unanimously, the TUC supported the promotion of the Bill to create a better climate of industrial relations.
One dispute that has soured industrial relations in this country occurred in my constituency—Unite v. British Airways. In December 2009, Unite undertook a ballot for strike action. There were 12,000 workers and the turnout was 80%, which is greater than the turnout of electors for any Member of this House. Some 92.5% of those who voted did so in favour of industrial action. An injunction was granted on the grounds that during the balloting period, 811 union members were offered and took redundancy. The employer sought and gained an injunction because it successfully argued that those 811 people should not have participated in the ballot, even though the union was not to know which of its members would take redundancy, and even though 811 votes had no material effect on the ballot. At that stage of the dispute, I genuinely thought we could achieve a negotiated settlement, but the injunction set us right back to square one. It alienated all those who participated and exacerbated the situation.
Let me give another example. EDF energy injuncted the National Union of Rail, Maritime and Transport Workers in 2009. The RMT was in negotiations about a small number of its members in three separate workplaces. They were listed on the union’s books as “engineers/technicians”. The union had been in negotiations with the employer on wages and conditions, job evaluations and a range of other issues. There had been dialogue with the employer for a period of time, so it was clear who the negotiations were about and the employer clearly understood. However, the employer gained an injunction because the RMT listed the workers as “engineers/technicians” and the employer said that although it listed engineers, it did not have a “technicians” category—people doing those jobs were characterised as fitters and other grades.
EDF won an injunction, but that only exacerbated the situation. I do not know of a case in which a re-ballot following an injunction has not resulted in a greater majority for industrial action. Parliament legislated to give, secure and enhance trade unionists’ democratic rights, but it also legislated to try to improve the industrial relations climate in this country.
Some of the examples are quite staggering and it is difficult to see how they were justified in court, but they were. Let me cite that of Metrobus v. Unite in 2009. Some 90% of those working for Metrobus who were balloted by Unite voted in favour of industrial action. Such ballots are usually undertaken by the Electoral Reform Society, and the ballot result was sent to the union, but there was some delay in passing the result from the union to the employer. From reading the judgment, it looks as though the result went to the office but by the time it got handed to an official it was gone 5 o’clock, so it was not sent to the employer that night. So it was 20 hours later that it was sent to the employer.
The employer then sought and gained an injunction on the basis that the notice was not provided promptly enough. It was a 20-hour delay. At best, from the close of the ballot to when the employer received it, no more than two and a half days had passed. To be frank, that is how long it takes to deliver a letter first-class virtually, but the injunction was granted. Part of the decision of the court was based on the fact that the union had not put at the bottom of the paper that the information it had on its members was contained on its computer register and it was classified. A phone call from the employer to the union could have solved that one—“Where did you get this information? Where is this list?” It is the norm to put down that information, particularly so that it can be checked against the computer data.
I want to mention one final case: British Airways v. Unite, again in my constituency. The High Court granted an injunction on the second ballot because Unite had not reported the full result. There were two grounds for the decision: first, United had not mentioned in an e-mail sent round or on the website that there were 11 spoilt ballot papers out of 12,000. The union received the notice at 3.59 pm. By 4.45 pm, the report was given to union representatives, who put copies on the notice boards of the crew report centres—where the crew assemble as they go on duty—within 30 minutes. They were made available in union offices and posted on displays on stands outside the offices in my constituency and in other airports. Representatives handed members the report in the crew areas. A press release was put on the website, and text messages and e-mails were sent to every member. People who work for BA are required to use their computer every day to get their rosters; it is a job requirement. The cabin crew were informed. Yet the company gained an injunction, because it was decided that the union had not fulfilled its responsibility to engage in active communication. I do not know what more it could have done.
There was real anger in my constituency about this injunction. Some of the employees concerned had never been on strike in their lives. I had people in my office in tears, including young women who had never before been involved in industrial action. They could not believe what was happening to them. They thought that the vote was a democratic process and that, regardless of whether they voted yes or no, their wishes would be respected, but they were not. There was some good news though: the union went to the Court of Appeal and only by majority—the court was split—was it decided that the union had complied with the communication requirements.
Lord Chief Justice Lord Judge commented on the irony of an employer relying on the provisions designed to protect trade union members in order to circumvent their wishes. It is extraordinary. Lord Neuberger dissented, but Lady Justice Smith argued— rightly, I believe—that the relevant legislation was not intended
“to create a series of traps or hurdles for the union to negotiate”,
but
“to ensure a fair, open and democratic ballot.”
She also introduced the concept that, where there is substantial compliance with the provisions of the legislation, the decision should be appropriate and judged accordingly. The problem was, however, that the judgment was split, and we have no idea what the next judgment will be. Such judgments rely on the individual decisions of individual judges, who often allow an injunction to be made, dragging us into the appeals process. That is destroying the industrial relations climate in certain sections of our industrial base.
As Lady Justice Smith said, unfortunately the relevant labour legislation sets traps and hurdles that were never intended by the House. I have introduced my Bill to give clarity to the original decision and intention of the House when it passed that legislation, and to restore the provision that the House thought it was implementing in the real world. The Bill does not seek to alter the core trade union obligations. A union organising an industrial ballot would still have to comply with the requirements to give seven days’ notice of a ballot, for it to be independently organised and scrutinised, to inform members and employers of the result and to give seven days’ notice of industrial action.
My Bill does not propose changes to the requirements of each of these stages; it simply addresses the consequences of technical and minor non-compliance with any of the stages of the process. It would bring our law that bit further into compliance and consistency with the UK’s obligations under the European convention on human rights, the International Labour Organisation’s standards and other domestic law. For example, under electoral law, under which we have all been elected, minor errors and even crimes that do not affect the overall result are disregarded.
The Bill would amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 to allow for small, accidental failures in respect of the requirements to give notice of ballots and industrial action, to give notice of its result to employers and members, and in respect of the ballot itself. It would complete the intention of the original legislation and covers the gaps interpreted by the courts. Such failures would be disregarded where there has been substantial compliance with the process itself, and the employer would be able to establish substantial compliance because of the level of information that would still be required to be given to the employer and the members themselves.
Minor errors would also be disregarded where the failure
“is unlikely to affect…the result of the ballot”—
exactly as was intended by the House—
“or (in the case of a notice) a reasonable recipient’s understanding of the…notice.”
So the latter provision applies where a reasonable person can be expected to understand what was written on the notice before them. Where a union claims substantial compliance, the burden will be placed on the employer to prove non-compliance. That is not an onerous task, because during the interlocutory process the employer only has to demonstrate that there is a serious issue to be tried. It does not have to prove that something has gone wrong; it just has to say that there is an issue worthy of being tried and heard before the court.
Finally, I stress that the Bill would not lessen the obligations on trade unions seeking to organise industrial action, but would merely apply where there are small, accidental failures, particularly on notification and balloting. There would be no decrease in the amount of information to be provided to the employers, so it would not make it easier or harder for them to plan for industrial action. It would bring industrial action legislation into a consistent relationship with electoral law and practices generally, and more into compliance with ILO standards and the standards, rules and regulations set by the European Court of Human Rights. This is a minor Bill that could have significant implications in improving the climate of industrial relations in this country at a time when it is most needed, and I commend it to the House. This small private Member’s Bill would allow courts to interpret the will of the House as originally intended, and I hope that it gains the support of all parties.