Trade Union Bill

Written Evidence submitted by Tom Flanagan Consulting (TUB 42)

Trade Union Bill 2015

Introduction

I am very pleased to have been given the opportunity to submit comments on the Trade Union Bill. I have been closely involved in its history and development, in the background, so to speak.

Before the 2010 General Election, I was one of two consultant advisors to the Conservative Party on employment law policy, including industrial relations, dating back to when Alan Duncan was Shadow secretary for the DTI, then DBERR; one of his team, and the main link for us up until after the election, was Jonathan Djanogly, then Shadow Minister for Employment and for Justice. Much of what we discussed and on which we advised became the core of the Employment Law Review. Most of the changes in relation to ballots which are now proposed in the TU Bill were included in a paper which I helped to produce in 2008 on the Industrial Relations/TU policy proposals. Whilst a lot of the employment law changes went ahead, the Trade Union changes, particularly in relation to ballots, were unable to proceed largely because of opposition in the Coalition from the LibDems.

After that election, I was introduced to Simone Finn, Special Adviser to Francis Maude in the Cabinet Office, and worked with Simone to help develop policy on unions and industrial action. She introduced me to the think tank, Policy Exchange, and I co-authored their paper of September 2010 "Modernising Industrial Relations", which included a lot of the thinking behind the TU Bill. During this period, I worked with Simone to help her to hone her ideas on industrial relations.

In 2012-13, I was invited again by Jonathan Djanogly, with the other consultant with whom we had worked before, Philp Sack, to revisit the employment law strategies which we had discussed previously. We produced the strategy paper "Oiling the Wheels of Work" which traced what we planned originally, what had been achieved, what was still to be achieved and updated some of the proposals. This became the basis of the Conservative Party’s Manifesto commitments on employment law and unions.

During the passage of the Bill so far, I have been back in contact with Simone Finn, now in BIS, to contribute ideas to the Consultations and in relation to possible fall-back positions. Meanwhile, I was invited by the Industrial Law Society to take part in a debate at its annual conference in September 2015 on the TU Bill, my role being to "defend" the Government’s position.

I am a leading employer lawyer of over 30 years’ experience. During my career, I have advised trade unions, employers and individuals. Now retired, I am an Independent Consultant providing strategic employment advice to a wide range of businesses, including in relation to trade unions and collective issues, change management and contract variation and harmonization.

General Principles Behind the Bill

When first mooted by the Conservative Party in opposition in 2008, these ideas received support from CBI, the IoD and the Federation of Small Businesses. Therefore, whilst the suggestions are now included in draft legislation for the first time, with some additional thinking, their essence has been in the public domain for a number of years, with general support from the business community.

It should be borne in mind that, whilst strikes in what are being describes as "important public services" may appear to be in the public sector – and the TUC response to the Bill includes that its terms are unnecessary because there is very little industrial action activity in the private sector – the reality is that much of the transport network in the UK, at least, is contracted to private sector providers and is, in effect, in the private sector.

The TUC (notably Sarah Veale) has talked about how, in a civilised Society, there should be a fundamental "right to strike". It is said that this also reflects the international perspective, in the International Labour Organisation ("ILO") Conventions and the European Convention of Human Rights ("ECHR"). However, the ILO recognizes that there is no absolute right to strike – see below.

In the UK, at the moment, there is no "right to strike". When employees go on strike, they withdraw their labour, in effect in breach of contract. They and their union which induced the strike are generally protected against legal reprisal if the union follows the statutory requirements for conducting an industrial action ballot and the action itself.

In a sense, therefore, UK law provides a permission to strike in certain circumstances but it is not a right. Unions have a strong imperative to comply with the conditions of the permission because not to do so leaves their members open to potentially serious consequences of the breach of contract which their union will have induced them to commit.

Len McLusky, commenting on the UK’s law on industrial action, has famously stated that unions call industrial action only as a last resort. This is repeated in the TUC’s response to the Consultation on thresholds. Withdrawing labour should, indeed, be an act of last resort, and in the context only of a trade dispute between employees and their employer. However, my experience is that a call to action is sometimes not a last resort, particularly in the context of what might be categorized as political strikes, involving the public, given what other options might still be open at the time of the industrial action. Even in what is clearly the private sector, I have had experience of a number of examples of industrial action being called whilst negotiations were still ongoing and sometimes before the agreed mechanisms in a collective bargaining agreement had been exhausted.

Rights do not exist in isolation. It is arguable that any rights should be accompanied by concomitant obligations, particularly if the exercise of the right impinges on potentially conflicting rights of others. This is something which the ILO and ECHR recognizes, for instance Article 11(2) of the ECHR places some balancing limitations on the rights expressed in Article 11(1). Placing that in the context of the current debate, if the TUC, on behalf of its members, wishes to assert a right to strike, it should commit to an obligation to exercise it responsibly, particularly when a strike would have a significant impact on third parties and, in particular, on the public at large.

Take the example of 2014’s tube strikes. If the turnout was around 30% of the voting membership then even the nearly 80% vote in support meant that less than a quarter of those entitled to vote supported a strike. It would be irresponsible to actually call any strike in that situation, particularly one with the potentially far reaching consequences of a transport strike in the Capital.

In the private sector, generally, a ballot result of that nature would not usually lead to a call for strike action because it would not indicate strong enough support in the workplace for a strike. In the type of services which we are discussing, strike action does happen because the intended recipient of the action – the "victims" of it, in a real sense – are members of the public. Strikes happen in the public arena because, technically, the union can call one with such a result, whatever the consequences for the public.

The mere possibility of that happening again has encouraged a careful analysis of the law and practice, including consideration of requiring more evidence of participation in both a ballot and a yes vote before industrial action can go ahead.

A civilised Society should be managed in the interests of all of its stakeholders. It would, therefore, be appropriate to look carefully at a situation in which the tube strike level of disruption can occur at the behest of a small minority of a small stakeholder interest, to the detriment of much wider interests.

In the current debate, the type of industrial action with which we are most concerned – in services which affect the public – is different to the standard model of industrial action, which is action taken by employees against their employer in order to influence negotiations in relation to a trade dispute between them. Here, the stakeholder most affected by the industrial action – and in some instances the actual target of the action - is not the employer but the general public who have no direct interest in and cannot influence the outcome of, the negotiations. This type of industrial action against third parties should require a clearer and, perhaps, a more significant mandate, particularly when the impact can be extremely severe.

Law/Industrial Relations/Politics

As was identified in the Policy Exchange Report of September 2010, in the current industrial relations climate, unions and employers go to law as much as each other. It is apparent that, in some instances, strikes are not an action of last resort particulary when the context of some of the industrial action is political opposition to the Government’s austerity programme.

There are high profile examples in recent years of politicising and litigating workplace disputes, such as the BA – v - Unite saga, the PCSU legal action over public sector pensions, the "Boots Case" on the law in relation to TU applications for recognition, which includes the TUC argument that UK law on industrial action is in breach of Article 11 of the European Convention of Human Rights.

Pause for a moment on the issue of a supposed right to strike in international law, which is invoked regularly by unions and academics. Since at least 1952 there has been an internal dispute in the ILO about the existence of a "right to strike". The argument has been largely based on the proposition that ILO Convention 87 enshrines a right to strike and that that has been reinforced in Article 11 of the European Convention of Human Rights ("ECHR"). However, key ILO documents such as the "ILO Principles Concerning the Right to Strike", first published in 1998, recognizes that there is no such stand alone right. The "right to strike" is an adjunct of Freedom of Association, both in ILO Conventions and the ECHR. The argument runs that the right to Freedom of Association cannot be fully realized unless there is a right to strike. Were it that simple, there would have been a clear right to strike years ago. (In my view, that proposotion might be true in some instances but not in others, depending on the facts, so that there is no general principle involved).

That argument has also never been accepted by the Employers’ Group (one of the three constituent groups of the ILO), even after the meeting held in Geneva on 23-25 February 2015 entitled: "Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87), in relation to the right to strike and the modalities and practices of strike action at national level". The follow up PR on the meeting from Unite and other employee organisations hailed the outcome as the ILO upholding the right to strike (thus impliedly admitting that, until then, there had not been a right to strike!). They quote from the joint statement released from the meeting:

"The Government Group recognizes that the right to strike is linked to freedom of association which is a fundamental principle and right at work of the ILO. The Government Group specifically recognizes that without protecting a right to strike, Freedom of Association, in particular the right to organise activities for the purpose of promoting and protecting workers’ interests, cannot fully be realized".

However, they do not quote the paragraph from the same statement which follows the one above:

"However, we also note that the right to strike, albeit part of the fundamental principles and rights at work of the ILO, is not an absolute right. The scope and conditions of this right are regulated at the national level…"

The groups then committed to further dialogue on what should be in place to regulate the proposed right:

"We are ready, ... to consider discussing, in the forms and framework that will be considered suitable, the exercise of the right to strike."

Therefore, this is a continuing dialogue between the groups about the existence and extent of a "right to strike". Returning to the set of principles in the 1998 statement – above – the ILO recognizes that the right to strike is subject to conditions which can be imposed by national law and which can include prior notice, a quorum and a required majority, as long as the conditions actually imposed do not make it "very difficult" or "impossible in practice" to exercise the "right".

Meanwhile, look at Article 11 of the ECHR. Article 11(1) sets out the principle of Freedom of Association:

  "11 (1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. "

but that is limited by Article 11(2) which creates derogations:

"11 (2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are 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. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

There is a debate about the proper interpretation of 11(2), the TUC view being that the various elements of the derogation are all subject to the general proposition at the start of the clause that they all must be "in the interests of national security or public safety". My view is that the more natural reading of the clause is that after "..necessary in a democratic society…." we have a list of examples of where the derogation bites, the first of which is ".. in the interests of national security or public safety" and the others follow, including "for the protection of the rights and freedoms of others." Therefore, the national security element is just the first in a list; it is not a general proposition governing the rest of the clause. On that basis, 11(2) provides for exactly the sort of balance between stakeholders in Society to which I made reference above, by making the right to Freedom of Association subject to, inter alia, "the protection of the rights and freedoms of others" as long as any actual limitations are "prescribed by law" and "necessary in a democratic society".

In a balanced, civilized society it is undoubtedly important that employees have the ability to withdraw their labour in support of a trade dispute with their employer but it needs to be set in the context of the rights and freedoms of other stakeholders in society, particularly the general public.

In other words, what the Government now proposes is entirely consistent with ILO Conventions and Article 11 of the ECHR.

For whatever reason, industrial relations disputes are being played out in the courts far more frequently than is healthy. Part of the reason is undoubtedly the complicated web of legislation and case law which has gone into creating the legal platform of UK industrial relations. Within that explanation is also the fact that the law on balloting, in particular, is based on legislation created over 30 years ago, when the political, economic and legal environment was quite different to the present. When any element of it is reviewed, as now, the technique is to tinker with, add to, subtract from or adapt the same legislation which has given rise to the over legalization of UK industrial relations in the first place.

Perhaps the time has come for a complete rethink.

Meanwhile, we are faced with the current proposals and I will now venture some views on them, based on the general comments above.

Ballot Thresholds

For the reasons set out above, I believe that the proposed voting criteria are reasonable in their context of strikes in the "Important public services" of fire, health, education, transport, border force and nuclear decommissioning.

However, the main part of this Consultation focuses on whether there should be limits or definitions of which employees within an organization should be caught by the 40% voting requirement. Perhaps the focus should be the impact of the industrial action, not the identity of the individuals who take part in it. If the action is aimed at or has its main impact on third parties, rather than the employer, particularly if it is aimed at the public who have no direct interest in the Trade Dispute and cannot affect the outcome of any dispute or negotiations, then the voting requirements should apply to the action itself, regardless of who takes part in it. All employees of the relevant employers should be covered by the threshold requirements.

In other words, the new voting requirements should apply to all industrial action which "affects the public", rather than is "in the public sector".

This would also reduce – even eliminate completely – the risk of satellite disputes and legal challenges over which workers are covered by the 40% requirement.

It is argued that there should be a distinction between action which is aimed at the public and action which, as a matter of fact, has a greater impact on the public. In the second instance there may be a case for the sort of requirements proposed in the Bill whereas in the first instance there is already a remedy for members of the public, perhaps through a Commissioner, to take action, such as an injunction, to prevent the industrial action from proceeding. I think that that distinction is artificial if only because one can question why members of the public should have to go to the lengths and costs (who would pay? Ultimately, the taxpayer?) of an expensive and uncertain application to Court in circumstances in which it is apparent that there is no justification for the industrial action. Better to stop it at source.

This legislation, therefore, is not intended to be nor is it "anti–union". It is "pro Society". It is designed to readdress the balance between stakeholders in Society, to allow a reasonable exercise of the industrial relations technique of withdrawal of labour, whilst not causing disproportionate disruption to those who are not directly involved in the dispute.

It is also not designed to make industrial action more difficult to take, per se. However, if striking the balance referred to above has the effect of requiring higher standards to be met for calling industrial action in these types of services, then, in my view, that is appropriate and the means currently suggested are proportionate to achieving that result.

Other Ballot Requirements

Information on ballot papers : the prerequisite of a call for industrial action is that there should be trade dispute. It is clearly a lacu na, therefore, that, when formal ly calling its members to action, the union does not have to identify to either the employer or even to its own members the nature of the trade dispute in relation to which they are being called upon to take action .

This can create confusion for both employer and members. Where the u nion has a number of grievances, there is often a tendency to circulate to members a list of issues, sometimes at the same time as and even accompanying the ballot, paper. It is not unknown for it to be unclear what the actual reason is for the strike, where there is a number of ongoing grievances. It should not be difficult for the union to identify the "trade dispute" and, given the overriding need for the union to protect i ts members , it should welcome the opportunity to be clear about the reason for the employees being asked to withdraw their labour.

Similarly, a simple statement of what type of action, when and how long it is intended to last is in the members’ interests and will give the employer a clearer sense of what w ill be involved, which will allow it to manage its business and understand the options in any negotiations.

Remember the "twelve days of Christmas" in the BA strike! It was reported that a number of those who had voted in favour of strike action were nevertheless unaware that it would mean remaining out of work for so long over the Christmas period.

A " reasonably detailed indication of the matter or matters in issue " is likely to be a step too far , in my view, and risks more legal challenges in endless satellite litigation. A proper identification of the trade dispute, type of action and proposed timing will probably be sufficient.

Strike mandate to expire after 4 months . There may well be a reasonable argument that the absence of the ability to extend the period by agreement might discourage negotiation and encourage more aggressive action. Perhaps the ability to extend it by agreement should be retained. However, a long stop date is valuable as providing certainty to both employer and members.

I have had experience of inventive timing of strike days extending action by some months, such as one week on, two weeks off. In one example, b y the time strike action was still taking place some months down the line, what appeared to be the original trade dispute had been resolved and the arguments were about something which has arisen meanwhile. Arguably, therefore, there was no strike action mandate any longer but the timetable had continued. Because there is no need to identify the trade dispute on the ballot paper, what was clear from applying common sense – that the mandate had expired - was nevertheless a complicated and uncertain legal argument.

Notice of industrial action to be 14 days , not 7. This is simply pragmatism. There will always be arguments about individual instances where 7 days was enough or not enough time and the impact which that may have had on an individual negotiation. This is a balance and, placed in the context of the inevitable arguments about hiring agency workers or taking other reasonable steps to provide for continuity, particularly where the public is affected, 14 days does not seem unreasonable.

A s there should be a balance, it is not unreasonable to suggest that, if employees exercise their ability to withdraw their labour, the employer should have a reasonable opportunity to take measures to maintain the continuity of its business.

Details of turnout in ballot result and whether compliant . T here is nothing wrong, it seems to me, about requiring the published result to include reference to whether the ballot satisfied the threshold requirements, given the potential implications for the members if it did not.

Picketing

The draft Bill is limited to making legally enforceable section F of the Code of Practice on Picketing, that is placing obligations on the supervisor of the picketing. Granted, the Consultation asks for respondents’ views on whether similar provisions should apply to all picketers, am ong other things but that provision is not (yet) in the draft Bill. In my view, it would be an unnecessary extension to apply the requirements of section F to all picketers.

There is a point to requiring some notice of other planned action and the means of organising it. This is one of the areas where more detailed discussion between stakeholders might be valuable, to see how this might work without being too intrusive or unworkable.

I would question the ability to adapt the Certification Officer’s role to be able to police the elements which are intended to be under its jurisdiction but, no doubt, there are plans to redesign the role and provide the resources necessary to make it work. That, too, could benefit from further stakeholder discussions. There are concerns about extending the judicial nature of the CO’s role and, at the same time, require the role to include a greater investigatory and inquisitorial character. This could damage confidence in the independence of the Office, if not handled sensitively.

Should the Code be reviewed? Yes, I think , but only in the context that all Codes should be reviewed with sufficiently regularity to sense check them.

Agency Workers

This is about repealing Regulation 7 of the Conduct of Employment Agencies and Employment Busi ness Regulations 2003. Actually, t his regulation has a very nar row impact .

The regulation affects Employee Businesses ("EBs") , only, that is those agencies who provide their own employees to work for the end user. The EB continues to employ them at all times.

Regulation 7 provides that it would be an offence for an Employment Business to supply an Agency Worker specifically to carry out:

· t he duties n ormally performed by a worker who is actually taking part in a strike or other industrial action; or

· t he duties n ormally performed by another worker who is assigned to cover the work of a worker who is taking part in a strike or other industrial action…..

unless the EB does not know and has no reasonable grounds for knowing that the workers being replaced are taking part in industrial action.

If that situation arises then, subject to the defence, a criminal offence is committ ed by the EB, not by the end user which is potentially liable only to a charge of aiding or abetting.

Nothing in this regulation prevents the following:

· employing Agency Workers directly;

· moving other employees into strikers’ roles;

· clearing up a backlog of work, using own employees or Agency Workers, whether employed directly or provided by an EB.

The specific prohibition on using Agency Workers to cover for striking employees is a Recommendation of the ILO.

It has to be said that the potential removal of this prohibition has not been met with universal approval by Employment Businesses, represented by the Recruitment and Employment Confederation ("REC"). Apart from concern about EBs and their employees becoming a football in someone else’s trade dispute, it should be remembered that it is the EB which would be committing the offence . The potential penalties include a fine of up to £5,000, personal liability for directors or managers of the EB, a prohibition order preventing the EB from acting and even from operating at all for as long as 10 years – with another potential fine of up to £5,000 for a breach of such an order – and rendering unenforceable any terms of the contract between the EB and the end user including, for instance, for payment or an indemnity!

This range of potential penalties leads to the possibility of EBs, rather than end users, being targeted by unions, in an attempt to put them off becoming involved. In reality, many EBs are unlikely to want to become embroiled in this troublesome situation, if there is any doubt about the legality of the repeal.

Therefore, I am of the view that repealing regulation 7 probably will not lead to much use of EBs providing Agency Workers during a strike, as opposed to any of the other potential strategies listed above. On that basis, the repeal of this regulation, very sensitive as it would be for unions, is probably an argument which is not worth creating, as it is unlikely to achieve the desired aim of employers being free to use Ag ency Workers during a strike to cover for striking employees.

Perhaps what is needed, here, instead is some clear guidance on scope of regulation 7, along with what can or cannot be done , thus showing h ow limited it actually is .

General Concerns Expressed by Unions

Elections aren’t judged with these thresholds : this argument is n ot comparing like with like . There needs to be a result in an election; there does not have to be a strike . There should not be a "minority government" equivalent in a strike action ballot , particularly if the action would have a significant impact on third partie s, and particularly on the general public.

More could be done to improve the turnout, such as looking at online voting – if the concerns expressed about security and effectiveness can b e overcome.

However, the comparison with elections is a regular quip and those making it must know that it is irrelevant.

A majority not voting is deemed to have voted against . This is the complaint that if the combination of turnout and s upport produces a strike vote of , say, 30% of the voting population in favour, then rendering the vote invalid is assuming that the other 70% voted against. The only assumption ( a fact , in fact ) which can made in those circumstances is that the 70% did not vote in favour , which is sufficient to make the poi nt that the industrial action does not have sufficient support.

This is all unnecessary in the private sector – where there is little TU activity . See above – a lot of the action is in services which are outsourced but still affect the public .

This leg islation is an outmoded reaction: in my view, th is whole debate on existing legislation is outmoded – see proposed solutions , below.

Possible Solutions

Forgive this sort of rallying cry but isn’t it time that we returned industrial relations to the workplace? In particular, we need to have an environment in which both sides do not feel the need to resort to law, of the UK and Europe, virtually every time there is any industrial action.

That environment needs to be modern and relevant, not constantly adapting legislation which has been causing the stampede to the courts in the first place.

So, what could that environment involve?

Possibly, legislate a "right to strike" in the UK but conditional upon it being exercising responsibly. What would "responsible" look like? It could be generally based on the content of the draft Bill. I would suggest:

1. the minimum voting requirements contained in the Bill, or something very similar;

2. apply them to industrial action which "affects the public";

3. in most traditional collective agreements there is a negotiating process which provides for at least two stages of "failure to agree", followed by compulsory conciliation (usually through ACAS) and then a possible voluntary reference to arbitration; most such agreements then provide that industrial action of any sort is not permitted until the process has been exhausted; a provision could be included in the Bill which sets out this type of process and provides that action can’t be taken until the process has been followed in full; that would be consistent with union past practice and would be appropriate if industrial action really is to be a last resort.

Ensure that strike action is, indeed, a last resort in trade disputes between employees and their employer, and not, for example, a weapon to be used in political disagreements. Whatever right to strike there may be in the ILO Conventions, even the ILO does not recommend providing protection for "political" strikes.

This approach might avoid all parties having to become involved in complicated and expensive legal arguments about the interpretation of and supremacy of international law and could provide a platform which is relevant to industrial relations in the UK currently.

In relation to other elements of the draft Bill and the Consultations, use or adapt the points in this note.

How should this progress?

I would suggest a "clean start": a general review, involving all key stakeholders, of how industrial action ballots and the action itself should be conducted. This could be done as a three stage process, involving consultation with the key stakeholders, to try to arrive at a consensus:

· Stage 1: agree some key basic principles of how ballots and action should be conducted, to take account of the impact on the main stakeholders involved: employees, unions, employers, the public;

· Stage 2: work out some details of how to implement those principles;

· Stage 3: only then draft legislation, preferably with a light touch.

In other words, start again, with a white board, agreeing principles, borrowing from past best practice but creating a new and relevant industrial relations framework.

This would have the merit of finally abandoning the over used approach of continually adapting existing legislation which was drafted, originally, in a very different political, economic and legal environment and is now well past its "sell by" date.

October 2015