Nick de Bois
Main Page: Nick de Bois (Conservative - Enfield North)
Philip Davies
There may be an element of truth in what my hon. Friend says. The hon. Member for Hayes and Harlington tried to describe the Bill as a simple and non-contentious piece of legislation that, really, nobody could possibly quibble with, and it was helpful to him in presenting that case not to take any interventions, so that none of the flaws in the Bill could be exploited.
Nick de Bois (Enfield North) (Con)
Perhaps the hon. Member for Hayes and Harlington (John McDonnell) regarded his view—and his view alone—as substantive and sufficient grounds to go along with the Bill. I think we have demonstrated that that is not necessarily so wise.
Philip Davies
I am grateful to my hon. Friend, who is, as ever, on the ball. He has just demonstrated to the House how knowledgeable he is on these matters and he rightly says that there are different cases. Either case makes the point, but I am sure that the House will be happy to benefit from his expertise on both if the need should arise and there is any further confusion. I believe I am right in saying—he will correct me if I am wrong—that in the case of Network Rail v. RMT the dispute was largely over safety. So far as I can tell, the case was not about an employment matter, because the signallers were not subject to any proposals for staff redundancies—it is not as if their jobs were being threatened—and the RMT was complaining about a safety issue.
The hon. Member for Hayes and Harlington gave the impression, to me at least, that these cases were clear-cut victories for the unions in terms of their recommendation for a strike and that there should be no impediment to that democratic process being applied. I have to take issue with that initial premise, because the result of the ballot in the case of Network Rail v. RMT was that 3,199 votes were cast, 1,705 of which were in favour of strike action and 1,481 of which were against, with 13 spoiled papers. Therefore, the majority was just 224. I do not know whether or not my hon. Friends would say the same, but I was not originally given the impression of that margin of victory in the speech made by the hon. Member for Hayes and Harlington. He seemed to imply that there had been an overwhelming vote for strike action.
Before we get on to the niceties of why the unions fell foul of the law and why it is right that they fell foul of the law, as it stands, we must take into account—I think that the law should take this into account—the effect of strike action, if it were to go ahead, on the employer, on the economy and on the general public. That should be a factor in determining whether an injunction is granted. If it is going to have a disproportionate effect, we would want the judiciary to be risk-adverse in deciding whether to grant an injunction.
According to Network Rail, the cost of the strike action would have totalled about £20 million. That is a substantial amount of money and it was perfectly right that a judge should insist that everything was done rightly and properly, all above board, before action with such a financial impact on a business—on the taxpayer, I might add—was proceeded with. In the court papers, Network Rail claimed—the RMT did not dispute this, so we can safely say that we are on firm ground—that the strike action would have had the effect of preventing 80% of all rail services in the UK from running. That would have had not only a devastating effect on Network Rail as an industry but a massive effect on many employers, businesses and people who rely on getting about by rail to fulfil their daily duties.
The hon. Member for Hayes and Harlington might think that the RMT had a perfectly legitimate complaint against Network Rail that Network Rail was being irresponsible. That might or might not be true, but I am not entirely sure what grudge the RMT has against businesses, commuters and shoppers up and down the country, who would have been negatively affected by that action. I am not entirely sure why they should be penalised for any actions by Network Rail that the hon. Gentleman disagrees with, but that is the impact that the strike action would have had. The RMT union did not dispute that in the court case. It is perfectly proper that a judge should consider the impact on other people when bearing in mind whether to grant an injunction. Network Rail made it clear that a strike would have caused immense damage to the economy, to businesses that depend on rail for freight or transport, to commuting workers and to a great many individual rail users.
Nick de Bois
I thank my hon. Friend for being so generous in giving way. In effect, we have a situation in which every cause will have an effect. My hon. Friend outlines admirably the fact that in this case, if the processes are not followed and a strike subsequently takes place, many people outside the immediate target of the strike action are affected. They have no recourse. They have nowhere to go. When I was running my company, we were in the unfortunate position of having to make a small number of redundancies. We had to go through—and rightly so—a strict but nevertheless somewhat burdensome process and, as a result of a minor technical error, there was the right for redress for those involved. It strikes me that in this situation, the process should be adhered to as strictly as possible because there is no form of redress for those outside the immediate consequences of the action. Does he agree?
Philip Davies
I very much agree with my hon. Friend. I know that he is a great advocate for rail commuters in his constituency—he has even had Westminster Hall debates on the problems that his commuters face. He is a great champion for his constituents and I agree with him. This is a very interesting point. If the hon. Member for Hayes and Harlington wants to make it easier to have strike action, perhaps, as a quid pro quo, he might consider what my hon. Friend the Member for Enfield North (Nick de Bois) says and introduce into his Bill a provision that some statutory consultation must take place with all affected parties before any strike action, so that people can understand the full consequences of that action. It might well be that when a union decides that it wants to go out on strike because of a grievance with a particular employer, it does not take into consideration the wider impact it will have on innocent third parties who are no part of the dispute at all. My hon. Friend makes a very good point—perhaps that is an anomaly that should be addressed in legislation. I hope that the Minister was listening carefully to his intervention, because he is in a far better position to do something about that than I am. It is certainly worth considering.
Mr Davey
My hon. Friend is absolutely right. I urge Opposition Members, when they debate this issue—not just today but during the weeks, months and years to come—to think about where the trade union interest actually is. The fact that a body of case law has been developed, much of which, as I said earlier, has found in favour of trade unions, is creating certainty. It is clarifying what was previously uncertain. If we changed the law now in the radical way proposed—it is certainly not modest—we should have to go through that whole process again, which would increase uncertainty, and do precisely what the hon. Member for Hayes and Harlington says he is trying not to do.
Outside the trade union movement, which understandably has its own interests to pursue, I hear no clamour for the law to be changed in the way proposed. It seems that the average worker and even the typical union member do not see the law as unjust; still less is it seen as unfair by the general public. They do not want to see public services disrupted because striking has been made easier—quite the reverse. They want trade unions to help us to manage the painful adjustment that is needed to put this country's finances in order.
The supporters of the Bill argue that the law is too complex. According to them, it places too many procedural obligations on trade unions and as a result it is difficult for unions to comply with the last dot and comma of the law's many provisions. It follows, they say, that trade unions must be given more wriggle room to ensure that they can operate within the law. According to the Bill’s sponsors, the existing disregard, which provides some wriggle room, needs to be extended.
Again, I have to ask what has changed to make life so intolerable for trade unions. This legal framework has maintained its shape, give or take some refinements and amendments, for 20 years or more. Surely both trade unions and employers should be accustomed to it by now. They should know its requirements and they should know what needs to happen at every stage of the process to achieve compliance.
Let us remember that we are not talking about matters that are devolved to ordinary members or to local representatives of trade unions to organise unaided on their own. If that were the case, those local representatives perhaps could not be expected to know every provision of the law, but that is not the position that we face, or it should not be the position that we face. Rather, the taking of industrial action is a very serious matter and no sensible union would permit strikes to proceed without the specific authorisation of the union’s leadership and the involvement of its professional cadre of workers at every stage of the process. By and large, that is what happens.
Nick de Bois
The Minister touches on a point on which I would welcome some clarity: the consequences of industrial action go far wider than has been mentioned so far, as my hon. Friend the Member for Shipley (Philip Davies) highlighted. There is no call for redress for those who are affected beyond the immediate action. Therefore, surely it is responsible for the law as it stands to require the maximum process to ensure that strike decisions are not taken lightly. In that way, those who will suffer as a consequence of that action can at least draw some grim satisfaction from that maximum process. They have no other form of redress.
Mr Davey
My hon. Friend anticipates what I was about to say. Although it is true that in recent years there have been more applications for court injunctions, we must put that increase into some perspective. It is still relatively rare for the courts to intervene in industrial disputes. Over the past five years, just seven injunctions have been sought, on average, per year. During the five years from 2005 to 2009, there were on average 132 work stoppages each year. With an average of seven injunctions and 132 work stoppages, it is clearly not the case that employers are always going to court and that it is difficult for trade unions to ballot their members, give notices in the proper way and hold industrial action when their members so vote. I am afraid that the facts are entirely against the hon. Member for Hayes and Harlington.
Moreover, these cases have not always gone the way of the employer, even when there have been injunctions, as my hon. Friends have said. The Bill’s explanatory notes refer to the case of British Airways v. Unite. That case concerned the way that the union notified its members about the outcome of an industrial action ballot. On this occasion, the Court of Appeal upheld the union’s appeal and the injunction was overturned.
There are of course other cases in which the trade union lost. Reference has been made to another case involving British Airways and Unite. I freely acknowledge that most balloting processes across our society will contain some flaws. Existing industrial action law makes some allowance for such small errors, but in the case of British Airways v. Unite that Unite lost, the union had made serious mistakes in the balloting process and a large number of people were mistakenly accorded an entitlement to vote. We are talking about a tightly knit group of workers, all belonging to the same, very well-resourced, branch of the Unite union. The union should have known better. Frankly, the union got it wrong and, quite rightly, it had to rerun the ballot.
Nick de Bois
I am grateful to the Minister, who has been very generous with his time. Given the small number of applications for injunctions, would the Minister like to speculate on the motives behind this Bill? It strikes me that it is simply a device to allow and encourage more industrial disharmony at a time when we clearly cannot do such a thing, as well as to cover up the failure of unions to get their act together when they wish to follow this process.
Nick de Bois
I would not wish to suggest otherwise; I was merely asking about the situations that might arise at a time we can ill afford them.
Mr Davey
I certainly agree with my hon. Friend that were we to pass this Bill, it would not help the economy, in its current fragile state, to recover. There would be a danger of more strike action and that is not something that we want.
The courts are helping to develop everyone’s understanding of the practical applications of the law. Let us take the case of Metrobus v. Unite, which is something of a cause célèbre in union circles, and which centred on the time taken by the union to inform the employer of the outcome of a ballot. The employer, of course, has an intense interest in knowing the ballot result. The law therefore specifies that the union should notify the employer as soon as reasonably practicable. In this case, the court considered that the union should have informed the employer sooner. I can understand that the ruling may have inconvenienced Unite, but the ruling sets a clear standard for all unions to follow in future. There should therefore be less uncertainty and fewer legal complaints on that issue, as my hon. Friends have argued.
Let me turn to the detail of the Bill. As I said at the beginning of my response, the Bill amends section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. That section was inserted in the 1992 Act by section 4 and schedule 3 of the Employment Relations Act 1999. Several years later, in 2002 and 2003, the previous Government reviewed the practical operation of the 1999 Act. As a result, section 232B of the 1992 Act was slightly amended. Those amendments were introduced by the Employment Relations Act 2004.
So what does section 232B do? Its provisions enable the courts to disregard small failures by a trade union to comply fully with certain legal provisions concerning the organisation of an industrial action ballot. Those failures concern the requirements set out in four places in the 1992 Act. The first of those is section 227(1), which defines those who should be accorded an entitlement to vote by the trade union. The second is section 230(2), which places an obligation on the trade union to ensure that those entitled to vote are provided with a voting paper by post and are given a convenient opportunity to vote. The third is section 230(2B), which deals with the corresponding obligation on trade unions to ballot those persons entitled to vote who are merchant seamen. The fourth provision relevant to the disregard is 232A(c), which deals with the obligation on trade unions not to induce a person to take industrial action if that person was not accorded an entitlement to vote in a ballot.
The disregard applies to a small failure or failures to comply with those particular provisions. “Small” is defined as
“on a scale which is unlikely to affect…the result of the ballot”,
and the measures also apply if “the failures taken together” are on a scale that is unlikely to affect the result of the ballot. That test has a strong quantitative component, and it can therefore be used as an objective measure, so the test is relatively easy to apply in practice. Importantly, section 232B applies the law only to “accidental” failures by the trade unions. We have heard quite a lot of comments on that point.
As I have said, the original provision of the disregard was reviewed by the previous Government in 2002 and 2003, and after a detailed and thorough review, they were basically content with the operation of the disregard. They also concluded that other changes they had made to industrial action law had operated broadly as intended, so let hon. Members be in no doubt: the last Government saw no need for provisions such as those in the Bill. Having considered the case for them, and having reviewed them extensively on more than one occasion, they rejected the case for the amendments before the House.
So what are the proposed changes to section 232B? There are four major amendments proposed. I say “major”; the title of the Bill refers to “Minor Errors”, but we are talking about major ones. First, the Bill would apply the disregard to many more provisions in the 1992 Act. I counted that the disregard would apply to every aspect of 15 separate sections of the 1992 Act. In combination, those sections specify virtually all the procedures that trade unions must follow when organising industrial action. The disregard would apply to the running of ballots and to the notices that trade unions must provide to the employer or employers concerned before an industrial action ballot and before any subsequent industrial action. That, by any standards, is a substantial change to section 232B.
Secondly, the changes would remove the requirement for the failure by the trade union to be “accidental”. It would be replaced by the notion that the disregard applied where there had been “substantial compliance” with the provision or provisions in question. That therefore leaves open the possibility that the disregard will apply to situations in which the trade union knowingly makes a mistake or deliberately decides to flout the safeguards in the Act. We could not accept that change.
Thirdly, as the disregard would be extended well beyond the balloting provisions, we would be introducing a new way of defining the size of the failure to which the disregard applies, where the failure concerns a notice. In such cases, the disregard applies if the failure
“is unlikely to affect a reasonable person’s understanding of the effect of the notice”.
That alone raises many questions that are totally unanswered by the Bill.
Fourthly, the Bill places the burden of proof on the employer or other complainant to demonstrate that the failure does not qualify for the disregard. In other words, it is assumed that any failure by the trade union will be small scale and therefore covered by the disregard, unless the complainant demonstrates otherwise—a significant shift in the law, with a new presumption in favour of the trade union.
Earlier in my speech, I identified concerns that the Government have about the overall case for introducing this Bill. But, even if we were to assume that there is a compelling case for some changes to be made to section 232B, the Government would have serious misgivings about the way the Bill would amend the section. We cannot accept that the disregard should apply to every one of those 15 sections. That would be a major extension of the disregard and cannot be considered a modest measure. Just by way of example, the disregard would extend to section 230(1)(a), which provides that union members should be allowed to vote without interference from, or constraint imposed by, the union or any of its members. Where is the interest in allowing errors with respect to this safeguard?