Trade Union Bill (Fifth sitting)

Julie Elliott Excerpts

Tuesday 20th October 2015 Public Bill Committees

[Jo Stevens (Cardiff Central) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward. I draw the Committee’s attention again to my entry in the Register of Members’ Financial Interests. I was a part-owner and director of a trade union law firm prior to election in May, and I am a member of the GMB and Unison trade unions. Unusually, I would like to start by agreeing with those in the party opposite sitting on the Front Bench. In responding to concerns about participation levels and thresholds in the election of police and crime commissioners, the Home Secretary said:

“I never set a turnout threshold for any election, and I’m not going to do it now”.

She continued:

“For the first time ever they”—

police and crime commissioners—

“will have a democratic mandate for the people for the work that they’re doing”.

That is probably just as well, because the Home Secretary’s mandate for police and crime commissioners was an average turnout of just 14.7%. While the Home Secretary would not place a threshold on the election of those who run our police forces, we are here today looking at the very same issue for trade union members deciding whether to take industrial action as a last resort. The thresholds proposed in the Bill are arbitrary, as we have heard. They are out of kilter with international standards in law, and they simply do not make sense.

Let us take the ballot held by the Royal College of Midwives last year on whether to undertake industrial action. It was the first such ballot in the college’s 134-year history, and it was won with a very clear margin: 82% of those voting were in favour of industrial action, and 8% were against. Despite that vast margin of support, because the turnout was 49% of eligible members, that proposed industrial action could not legally have taken place had the Bill received Royal Assent at the time. It could not have taken place because every vote not cast would have been counted as a vote against industrial action. Yet, had a few more thousand midwives voted against the action, it could legitimately have taken place. Abstentions here would perversely have more power to influence potential industrial action than the vote of a member who was opposed to it. That is a real, practical example of how ill thought out this legislation is, and how it will adversely impact on industrial relations.

I suggest to the Minister that not only does this clause make no sense, it also raises real legal concerns. My hon. Friend the Member for Cardiff South and Penarth referred to these in his opening address. The ILO states that only votes cast should be taken into account in a ballot. It has already indicated that it would accept a complaint in relation to dual ballot thresholds. Several of the written evidence submissions to the Committee highlight our position in respect of the ILO, but one statement from the Freedom of Association Committee stands out. It said:

“The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.”

There is also potential for challenge in the European Court, because under the clauses we are considering today, the minority can undermine a ballot by not voting rather than by participating. I thought this was what the Bill was all about. It gives disproportionate rights to abstentions.

The European Court of Human Rights has already ruled in the Demir case that:

“it does not follow that the government can deliberately impose a restriction on fundamental union activities and so make the position of the parties so unequal that there is no incentive to engage”.

The Bill does the exact opposite of incentivising participation, while at the same time taking no measures to remove barriers to engagement. If participation and legitimacy are the real aims of the Bill, then I urge the Minister to abandon clause 2 and accept our amendments.

[Julie Elliott (Sunderland Central) (Lab)]

Like my colleagues, I refer to the declarations I made at the start of proceedings last week. I want to talk in practical terms about my experience of what was referred to in some of the evidence, but I will start by saying that I totally support the comments made by my hon. Friends today. The overarching thrust of the Bill is that it will make thresholds almost impossible to meet. The premise of the Bill is based on a total lack of understanding of how the real world of industrial relations works in this country today.

In the real world, industrial action is always an absolute last resort. Last week in the evidence session, some of the leaders of the largest trade unions stated that industrial action is not what trade unions are about and not what they aim for. At the end of the day, their members lose money by taking industrial action. They often represent some of the lowest-paid people in society and that is always at the forefront for any trade union leader or official when negotiating.

No one takes industrial action lightly. Trade union officials are trained today in order to avert industrial action at all costs. However, it is a legal right and is there as a last resort. That needs to be borne in mind in everything we are discussing today. The thresholds proposed in the Bill of 50% and 40% are extreme in their nature. Modern ways of working were outlined very articulately last week by the general secretary of Unison, Mr Dave Prentis, when he talked about partnership working. The big trade unions today work very closely with the employers of their members, whether in the public or private sector. Obviously, one of the thresholds applies to all, the second applies to the public sector of a yet undefined group of people.

Partnership working is about building up relationships and getting to know people and to understand the way they work and what the real issues and nubs of the problems are. Some of the later measures in the Bill will have an impact on that working. Removing some of the facility time from people will not lead to better relationships or better partnership working. The opposite will happen and there will be a lack of trust and understanding of people and where they come from.

Some of the later proposals on check-off are probably even more significant. A ballot is the most intensive thing that any trade union and any employer prepares for, which is why the vast majority of employers in this country are not comfortable with the Bill. Drawing up the list of eligible people in the bargaining group is the most difficult thing that anyone on either side has to do. Check-off facilitates and helps with that process, because it means that the employer knows exactly where a person works within the organisation, but that is not known if someone pays by direct debit. There is also, potentially, a data protection issue, because if someone pays their trade union membership by direct debit, that information is confidential and known only by the union member and the trade union, not the employer. Therefore, in an industrial action ballot, the crucial checks and balances for getting the lists correct will not be there. Everyone wants the lists to be correct, because if they are not, the matter will end up in court.

[Tom Blenkinsop]

Apart from the fact that in certain sectors management would want to pay their trade union membership by direct debit, perhaps to keep it private and away from managerial colleagues, any employee with fewer than two years in post might not want to let their employer be aware of their trade union membership—depending on the relationship between the union or workforce and the employer—because of the employer’s history of behaviour towards unions. That would lead to problems for individuals seeking to exercise their right to be a union member. Furthermore, if someone had information about trade union members on direct debit, the potential for litigation in court over small anomalies being bounced back and forth between the employer and the trade union would be vast, and create even more expense for the employer and the union.

--- Later in debate ---

[Julie Elliott]

I could not agree more. None of us ever wants to reach the point where an industrial action ballot has to take place, but if we do, the time spent on the accuracy of the lists, under the new conditions, will be an enormous task. If it is a national public sector dispute, there will be at least hundreds of thousands of people to deal with. It is not just 50 or 60 people, or a handful in either direction. We are talking about huge numbers, and if it is a national dispute, they will be working all over the country and in displaced workplaces.

[Chris Stephens]

Does the hon. Lady believe, as I do, that part of the point of an implementing threshold is to stop national, or UK-wide, industrial action, by design, for many of the reasons she has mentioned?

[Julie Elliott]

That might well be the motivation behind some of it. As I said in my opening remarks, the measure makes it almost impossible for certain types of dispute to take place.

If the trade union side has to spend so much extra time not only on getting the lists correct, but on making the turnout so high, that is time the officials are not spending on talking to the employer and trying to avert strike action, which has to be the motive of everyone involved in an industrial dispute. The only way to resolve a dispute, whether an industrial dispute or any other disagreement in life, is by talking to people. If there is no time to sit down and talk constructively, the problem escalates. That is common sense.

So much time will be spent on the accuracy of the lists, with all the problems that the later clauses of the Bill throw up, and then on getting the enormous turnout. The 50% threshold is a difficult one in itself, but adding on the 40% threshold is incredible, if not completely unrealistic, except in a specific workplace with everyone working for one employer, as the rail disputes in recent history have shown. In the broader public sector there is genuine doubt as to whether the 40% threshold is achievable. The evidence from Stephen Cavalier, from Thompsons Solicitors, is that it will probably lead to more industrial action. Professor Ewing says in paragraph 10 of his written evidence:

“The ILO Committee of Experts pointed out that ‘account should only be taken of the votes cast’, while any ‘required quorum and majority should be fixed at a reasonable level’.”

I defy anybody to say that some of the measures in the Bill around thresholds are reasonable.

Where will the Bill take us if it comes into law as it is written today? My view is that it will make positive industrial relations much more difficult. Because of that, it will inevitably lead to more strikes, which I do not believe is what any Member, on either side of the House, wants. It will most likely lead to the Government ending up in court, with a massive cost to the taxpayer. Nobody wants us to end up in that situation, so I urge the Government to look again at the two thresholds.

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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.

[Tom Blenkinsop]

There is also a potential business cost. If we do not have collective bargaining, where one individual, on behalf of the company, talks to one individual, on behalf of the workforce, that will necessitate individual consultation. Depending on the size of the workplace, that could take a very long time and cost a lot of money.

[Julie Elliott]

I totally agree, and these are issues we will explore later when we talk about practical implications of facility time. In conclusion, I urge the Government to look again at the thresholds and what I believe will be their impact—probably unforeseen by the Government—namely more industrial action and more disharmony in the workplace, and the potential legal consequences, with the Government having to spend a lot of taxpayers’ money defending challenges in the courts.

[Chris Stephens]

It is a pleasure to serve under your chairmanship, Sir Edward. I declare my membership of Glasgow City Unison and the fact that I was a Unison activist for 20 years prior to my election. Indeed, when I submitted my new application to join the branch again, it had created a House of Commons sub-branch, so that is a good tale to have.

I oppose the threshold for three main reasons. The first is the impact on equality issues, particularly gender equality. The Government have not addressed the difficulties of women workers being able to prosecute and to try to get an industrial dispute on such issues as shift changes, where they would be impacted far more than male workers. Amnesty, Liberty and other organisations made clear their concerns on those issues during the evidence sessions. The second reason is the issue of people not voting. I find it incredible that the deceased will be described as being people who are against industrial action. There are many reasons for people not voting, and that principle is wrong.

The third reason concerns the practicalities of what happens during a ballot process and afterwards leading to a dispute. The key test of whether there is a mandate for industrial action is how many trade union members participate in the industrial dispute. The trade union has arguments and has to make a calculation after a ballot result about whether that is support for industrial action. Where there has been a low turnout, some trade unions have not gone forward to industrial action because they did not believe that they had that support. That is the true test of whether there is support, and on that basis trade unions make a gamble as to whether they should go forward.

With low turnouts, the notion has been presented that trade union activists and officials, after the ballot result has been announced and they have been unable to persuade members to take industrial action, develop mystical powers to persuade trade union members to participate in industrial action. It is almost as if trade union officials adopt Jedi-like powers, where all they have to do is make one wave of a Jedi hand and say, “This is the industrial action you’re looking for.” Frankly, that is a fanciful notion, and on that basis we are opposed to the principles of thresholds.

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The ONS says that 3.2 million of those households are two-parent working households, in which both parents work. A further 851,000 lone parents are also in work. I am not going to try to guess how many of those working single parents and double-parent families where both parents work actually had to take a day off work unexpectedly to look after their children when they could not go to school, because of course many of them may have been able to call a grandparent or make emergency childcare arrangements.

[Julie Elliott]

Will the Minister give way?

[Nick Boles]

I will not give way.

I am absolutely going to assert that millions of parents had to take a really difficult decision that had a great impact. Either one of them had to take a day off work, which they did not expect and so could not give their employer much notice, or they had to spend a great deal of money on emergency childcare, or they had to inconvenience another member of their family to provide childcare cover. So do not come to me—I know you would not, Sir Edward; I say this to the shadow Minister—bandying about your very low figures for the number of days lost directly to industrial action when 1 million parents in that strike that closed 20% of the nation’s schools had either to take a day off work or spend a great deal of money that they would rather not have spent on emergency childcare.

[Nick Boles]

I want to move on to the amendments. I am sure the hon. Gentleman will remember that the strike I was talking about, which happened last year, was supported by 22% of NUT members. I am sure it was very important for those 22%, but it was not particularly important—not sufficient for them to fill out a ballot paper and put it in the post—for the other 78%, so let us get this in perspective. It was clearly of rather more importance to the millions of parents who were affected than it was to the 78% who had the right to vote but did not.

I will now turn to the amendments unless hon. Members want to intervene.

[Julie Elliott]

I thank the Minister for giving way. I want to ask one simple question. Does the Minister regard children going to school as childcare?

[Nick Boles]

I am glad to say that it is a great deal more than that, but when a school is closed because of a strike supported by 22% of union members then, unfortunately, childcare is what parents have to be able to deliver.

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[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.

[Julie Elliott]

On whether bits of the Bill are legal and whether they will end up in the courts, the evidence presented last week by legal experts Stephen Cavalier and Professor Keith Ewing confirmed that the measure would end up in the courts. Does my hon. Friend agree?

[Stephen Doughty]

I certainly do. I am not a lawyer and I do not have experience of testing such things in the courts, but a significant amount of legal opinion suggests that the Bill is potentially in breach of a series of international conventions, let alone the devolution settlement and existing domestic legislation, and it questions whether many aspects of the Bill are enforceable in the courts.

Going back to the necessity of the measures in the Bill, the Minister has said that he accepts that there are historically low levels of industrial action in this country, and yet the Government have repeatedly extrapolated a sledgehammer from a limited number of examples. We can debate at length the rights or wrongs of any individual strike or industrial action, but we are making legislation for the whole country, all forms of industrial action and all trade union members. The legislation will affect every single trade union member in this country and every single dispute. It simply cannot be right to extrapolate and make general points on the basis of a few examples that the Government have used to back up their case.