Trade Union Bill (Fourth sitting)

Victoria Prentis Excerpts

Thursday 15th October 2015 Public Bill Committees

[Chris Stephens]

Q 347 One last question on the thresholds. Do you think that there are also gender equality issues, where in workplaces a majority of women workers might not be able to go on strike because a shift change would impact on them more than it would on male workers?

Professor Ewing: That is a good point, which I had not thought of, and it is something that I would like to think about before coming back to you. I am happy to address the Committee on that point, but I would like to think about it first.

[Victoria Prentis (Banbury) (Con)]

Q 348 You talked about the ILO conventions. A great deal of your report is concerned with ECHR conventions, and I accept you cannot mention everything in your brief summary today, but would you accept that as recently as last year, the European Court acknowledged that it was legitimate for the Government to legislate to impose some constraints on article 11? Would you accept that there is a wide margin of appreciation for the Government in the way that this can be handled?

Professor Ewing: Are we talking about the RMT case?

[Victoria Prentis]

Yes.

Professor Ewing: Yes, the British Government won in that case, but what I would say to you is that that case was really quite eccentric. There have been five or six decisions on article 11, specifically in relation to the right to strike, since April 2009, and the only case in which the Court has held in favour of the Government is the RMT case involving the United Kingdom. If I were the Government here, I would not be feeling very complacent or comfortable about that decision, because we have got cases from Croatia, Ukraine, Turkey and Russia in which the Court has said that the right to strike is protected and restrictions have to be justified. That case on its facts accepted that the restrictions could be justified, but you cannot conclude from that that all restrictions will be justified.

[Victoria Prentis]

Q 349 No, no, and I do not think that anybody on the Government side would disagree that the right to strike should be protected and that restrictions should be justified. That is absolutely the Government’s position. Let me turn it around. Are there any cases that support your view that it is not legitimate for the Government to make proportionate restrictions under article 11?

Professor Ewing: It is quite difficult to answer that question directly, because every case is different. In this case, whatever the challenge is under the convention to this legislation, first, it is not clear yet what the challenge will be, and it will be a strategic question for trade unions to consider which will be the best way in to attack the legislation, I imagine; and, secondly, when the challenge takes place it will also be informed by the influence of other treaty obligations. The European convention is not an island that sits on its own. We have regard to the decisions of the Social Rights Committee of the Council of Europe, which has also expressed criticism about our existing law. We will have regard to ILO supervisory bodies and their views on it. That will help to construct the case, so at this stage, it is hard to know what the case will be. We have got pointers as to what it might be, but the case will have to be built. I guess a very careful case will be built in order to learn from the lessons of the RMT case.

[Victoria Prentis]

Q 350 Okay. Can we move on to certification officers? I am thinking about the type of person who is a certification officer. It tends to be an Employment Appeal Tribunal judge or people of that type. Do you really feel it is unreasonable for others with a legitimate cause for complaint, because of the results of industrial action, to encourage the beginning of an investigatory process?

Professor Ewing: The certification officer is not a judge. The existing officer is a solicitor or partner in a law firm. Previous officers, I think, were former civil servants who did not have legal qualifications. You are telling me something I did not know, in the sense that the certification officer’s powers are going to be triggered by complaints made to him.

[Victoria Prentis]

Q 351 No, I am just suggesting that is one type of person who might feel—

Professor Ewing: Are you thinking about employers who might use the certification officer as a kind of surrogate rather than going directly to court?

[Victoria Prentis]

Q 352 More someone with a legitimate cause for complaint—someone who is affected by strike action.

Professor Ewing: Looking at the powers in schedule 2, we are talking about provisions relating to trade union elections, trade union expenditure and trade union amalgamations. This is about the internal affairs of the union, principally. If employers or whoever have a problem with strike ballots or whatever, they already have a remedy by way of complaint to the ordinary courts, which would be much quicker.

[Victoria Prentis]

Q 353 I do not want to go on too long, but I was not thinking of employers; I was thinking more of those who are affected by the results of strike action.

Professor Ewing: I am not sure how they would have access to the CO.

[Victoria Prentis]

Q 354 The certification officer himself might be able to take a view that it was appropriate to investigate non-compliance.

Professor Ewing: Non-compliance with what, in the case of a strike?

[Victoria Prentis]

Q 355 His job is to investigate non-compliance.

Professor Ewing: Yes, but only with specific obligations. If you look at page 16, the obligations to which the investigatory powers apply are listed in paragraph 1(a) to (h). They do not seem to apply to industrial action. The powers in schedule 2 are to make complaints against a union that he himself will adjudicate. These are powers that relate to the internal affairs and government of the union, so I do not know where the power you refer to arises. This was a power we used to have from the last regime, but I thought it had gone.

[The Chair]

Professor Ewing, thank you very much. You have been very helpful indeed. We will now move on to the next panel.

Examination of Witnesses

Janet Davies, Jon Skewes, Matt Wrack, Mark Serwotka and Dr Patrick Roach gave evidence.

--- Later in debate ---

[The Chair]

I well understand that. It is not your view; it is the evidence that you have come up with that we need the detail of for consideration. We have got eight minutes left and we have still got four questioners to ask their questions and get a reply, so could we be more succinct on both sides—the interviewees and the Members?

[Victoria Prentis]

Q 398 I was a public sector worker myself for 17 years, and although you may feel that we have got it in for you on this side of the Committee, I learnt a certain amount about industrial relations in that time and I am fully aware that we are very lucky to have giants of negotiation strategy in front of us, helping us with this Bill.

Mr McCluskey, in a way that does not surprise me at all, has put forward his position in writing and he has given his position is on thresholds: 50% if he gets e-balloting—[Interruption.] Sorry, workplace balloting. Do the other three of you share that position?

Dave Prentis: I do not believe that there is a need for thresholds. If the aim is to increase participation—that was the pretence behind it—I believe in moving to e-balloting, but, more than that, workplace balloting. Do not make the assumption that all of our members have got access to computers. Our refuse collectors do not sit at a computer all day; they are out on the streets, collecting our rubbish, as so many other public service workers are.

We do want to bring in e-balloting. We do want a safe computer in the workplace, but we also want workplace balloting. You may have been a member of my union in the past, but I come from a union that, before our merger in ’93, we always had secret postal ballots that went to the workplace and the turnout was 70%. As soon as Thatcher’s law came in that said that they had got to go to home addresses, it dropped to 22%.

[Victoria Prentis]

I will take that as a no.

Frances O'Grady: The TUC is clear, as I said before, that it is actually the ILO that the Government need to answer to. The real issue here that all good democrats should be focused on is how we improve participation in ballots across the board.

[Victoria Prentis]

I will take that as a no, too.

Frances O'Grady: It is a yes to modernising methods of balloting.

[Victoria Prentis]

But no to thresholds. Sir Paul?

Sir Paul Kenny: I am a negotiator.

[Victoria Prentis]

I thought you might be.

Sir Paul Kenny: My position is that no vote should not count, but that is a principled position I can hold. What Len McCluskey has done is put down a challenge: if people are serious about improving participation, come and talk. That may mean people have to move their principled positions, but I always understood that the end result was to find something workable and real. I do not know where you are going to put me down.

[Victoria Prentis]

I am going to put you with Mr McCluskey in my head.

Dave Prentis: It is a no to the two thresholds.

[Jessica Morden (Newport East) (Lab)]

Q 399 The ILO definition of public services talks about “essential”. The Bill talks about “important”. Are you clear from the Government so far how important public services will be defined and, crucially, which workers will be covered?

Frances O'Grady: No, and I do not think the Government are clear either. In particular, the proposal that so-called ancillary roles could be included is extremely interesting but has yet to be defined. It makes it very difficult to have an intelligent discussion about this aspect of the Bill when we do not even know what jobs and functions could be covered.

To give a practical example, if a call centre is providing public services as part of its work and for parts of those call centre workers’ jobs, but it is based in the private sector, does it fall under the 50% threshold or the 40% threshold? Quite genuinely, how are unions supposed to run a lawful ballot when it is simply not clear how that would work in the real world? So far, we have not had an answer to those questions. It could be cleaners, call centre workers, ancillary staff—all sorts of job could be covered—but I am not sure how the Government’s proposals are supposed to work in the private sector that is providing public services.

Dave Prentis: It will be a nightmare, and it will be a goldmine for solicitors because for every work group we try to define, it will be fought out in the courts. None of us want that, surely. It is so ambiguous and so badly worded that it is difficult to find out how essential these people who are caught are. At the moment, it catches teaching assistants, who work in our schools at different levels, may only work at term time and, in many cases, are abused in the way they are treated, yet they may find themselves caught by this idea of important public services. It is ill defined and will lead to litigation going on for many, many months around disputes. Instead of trying to solve the disputes, we will be involved in fighting out in the courts whether or not we should be balloting, or whether we need an 80% majority or half of the members actually voting. It is going to be an absolute nightmare for industrial relations in public services.

Frances O'Grady: What is clear is that the Government are going way beyond any international definition of an essential service. International bodies are very clear that it is not enough to say you are further restricting strike action purely because of—however bad it is, however inconvenient and however disruptive to other businesses, that in itself cannot constitute a reason for further restrictions on the right to strike in certain sectors. In any case, the Government’s definition—carefully worded, I think—of important services goes way beyond any international definition of “essential”.