Trade Union Bill (Fifth sitting)

Tom Blenkinsop Excerpts

Tuesday 20th October 2015 Public Bill Committees

[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.

[Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab)]

Does my hon. Friend think this goes beyond the percentages required for a ballot? The fact is that companies with recognised trade unions on site have either gone through voluntary recognition or compulsory recognition, which means that the workforce have already been balloted on whether they want a trade union representative liaising on their behalf with an employer. Is this legislation not going way beyond ballots and actually trying to give employers the ability to de-recognise unions across the country in all sorts of different workplaces, public or private?

[Stephen Doughty]

I believe that the Bill has many sinister intents. There are many provisions that can be used to tip the balance between employers and employees well beyond what would be reasonably expected in a democratic society. We heard during the evidence sessions that the Bill and these provisions put us at the bottom of the league when it comes to international labour standards and the rights of workers and trade unions.

Amendments 21 and 22 are to clause 5 and are consequential to other amendments for consistency.

Before I conclude on this group, it is worth referring to some of the comments. Many comments were made about this set of proposals in the written and oral evidence and it is important to bring the Committee’s attention to a number of them.

The Royal College of Nursing said that:

“The changes that are proposed…will do nothing for the improvement of industrial relations. The emphasis on ‘strikes’ and seeing all industrial action through the prism of strikes is misleading. This is at a time when the number of disputes is low compared to the past. The effect of the proposals to set thresholds”—

and a whole series of other measures—

“is not a ‘neutral’ step, rather it further strengthens the power already held by employers in workplace disputes now.”

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[Stephen Doughty]

The hon. Gentleman makes a very important point, which was made on Second Reading and by a number of witnesses. The Bill has a disproportionate impact on women, many of whom would be standing up on issues such as disparities in equal pay. We have repeatedly heard how, despite the Equal Pay Act being so many years ago, the reality is that women earn significantly less than men for the same hour of work conducted, particularly in certain sectors. Unions play a crucial role in standing up for those women. Importantly, I mentioned the diffuse nature of the workforce in sectors such as retail, highlighted by USDAW and others. A lot of women work in those sectors, and there will be a disproportionate impact.

Turning to some of the other evidence, we heard from the GMB which underlined the point I made that thresholds will lead to unions taking more time in the run-up to ballots to ensure the necessary turnout. It stated in written evidence that

“Employers will be encouraged to sit on their hands and wait to see if the threshold can be reached rather than address the underlying issues in the dispute.”

USDAW, which I have referred to a number of times, said:

“The best method to ensure high levels of workplace democracy is to make it as easy as possible to vote and to ensure that each vote counts equally. Under the proposed system of ballot thresholds, an individual choosing not to vote is likely to have more of an impact on the outcome of the ballot than someone choosing to vote against industrial action. If an individual votes against industrial action, their vote will be added to the turnout threshold even if they are in the minority, meaning that their vote could help to ensure that the ballot threshold is met. However, if someone chooses to abstain, their vote will not be added to the turnout threshold potentially meaning that, even if the vast majority of votes cast were in favour of action, the ballot will not meet the threshold requirements. As such—”

—USDAW is categorical about this

“the proposed ballot thresholds will clearly be detrimental to workplace democracy.”

I have another piece of evidence from Unison:

“In the UK an absent vote is not regarded as a negative one. There are a range of reasons why trade union members might not vote.”

It then gives a very practical example:

“There might be a positive decision to abstain. They might be on holiday or ill. They might not have an opinion on the dispute and rely on their colleagues to make their views clear.”

[Tom Blenkinsop]

Does my hon. Friend agree that they can be in management and also in the trade union, and it is dependent on the employer to recognise that member of management within the business unit, although not necessarily in their branch?

[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.

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[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.

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[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.

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[Nick Boles]

I am always happy to look and reassure myself, but I am pretty confident that that is the case. The amendments proposed by the Opposition go further. They would allow the union to import a reasonable belief into a trade dispute. That is in stark contrast to the current position, where there is an objective test to determine whether a matter constitutes a trade dispute or not. That is important because it is the basis from which flows the legal protections for unions and for strike action that is taking place properly. It would allow the issue to be open to a degree of uncertainty, according to what the union believed. That would be detrimental to employers and would tip the balance too far in favour of trade unions. The current wording allows clarity for both parties.

Other changes that the Government are making to the regulation of trade unions will simply make amendments 1, 8 and 22 unnecessary. The coalition Government introduced a new requirement for unions to submit membership audit certificates to show that they are complying with their duty to keep membership records accurate and up to date. The changes are designed to ensure that unions know who their members are, enabling them to be democratically accountable and to reflect the will of their members. The first membership audit certificates are due in June 2016. The fact that unions will therefore have more reliable membership records means that they will in future have more confidence that those who are entitled to vote receive the ballot paper. I am therefore not convinced that unions need leeway to allow certain members to be left out of the number of those who count towards the thresholds. Of course, that same point applies to amendments 20 and 21.

[Tom Blenkinsop]

Is an industrial ballot conducted among members or among employees?

[Nick Boles]

Obviously, the people who are eligible to vote have to be members of the union. They are also employees of the unit where the ballot is being held. Their entitlement to vote is based on being members of the union.

[Tom Blenkinsop]

The two are different, because the employees list could include people of other unions or none.

[Nick Boles]

I did not entirely catch what the hon. Gentleman just said. Perhaps he would repeat it.

[Tom Blenkinsop]

One list is the list of members set by the union. The other is a list of employees, which can include members of another union or of none. That is the proper list for an industrial ballot, not the members’ list by the union.

[Nick Boles]

I am not sure that I entirely understand the distinction that the hon. Gentleman is trying to draw. To be eligible to vote, someone obviously has to be both.

[Tom Blenkinsop]

No.

[Nick Boles]

To be able to call for strike action, people have to be both an employee of the unit where there is a dispute and a member of the union that is calling the ballot.

[Tom Blenkinsop]

No. The Minister is obviously unaware of the law.

[Nick Boles]

I am sorry not to have satisfied the hon. Gentleman.

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[Nick Boles]

I entirely agree with my hon. Friend. It is always good to be reminded of whom we are sent here to represent. Sometimes, I get the sense that Members think they are representing other people.

Perhaps I can help the hon. Member for Middlesbrough South and East Cleveland by describing as well as I can who is entitled to vote in a ballot:

“Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others.”

That is my understanding of the law. I have no doubt that he will want to draw my attention to where he disagrees with the law, but I believe that that is what it says in section 227(1) of the Trade Union and Labour Relations (Consolidation) Act 1992.

[Tom Blenkinsop]

I do not want to instruct the Minister in actual law, but as someone who has actually conducted a ballot, in terms of practice, a business unit and the employees within in it—[Hon. Members: “That is not the law.”] Well, it is the law. It is the same thing—it is a business practice that is conducted under the law and it means that employees on site are all part of the industrial ballot, whether members of the recognised union, another union or not a member of a union at all. We are talking about a business unit. That is the law.

[Nick Boles]

One of the beauties of British democracy is that we Members are not sent to Parliament to control the practice out there in the real world. We are sent here to pass laws and regulations. If the hon. Gentleman wants to confess that he has been party to practice that was not in accordance with the law, I am certainly not going to report him for it, but it seems to me that he is suggesting that there is a difference between workplace practice and the current law.

[Tom Blenkinsop]

On a point of order, Sir Edward. I do not know where the Minister is going with this, trying to infer things or besmirch my reputation when I was simply pointing out what the law and business practice is. We are only two hours into line-by-line consideration of the Bill. I do not think this is a very good start, Sir Edward.

[The Chair]

I am not sure that that was a point of order, but the hon. Gentleman made his point.