Labour Research November 2015


Bill legitimises union-bashing

The Conservatives’ Trade Union Bill is an attempt at undermining unions and silencing resistance to public sector cuts, as Labour Research reports.

The Tories’ proposed Trade Union Bill is one of the most aggressive attacks on the trade union movement in decades. Shadow business secretary Angela Eagle, for example, has described the Bill as “the most significant sustained and partisan attack on six million trade union members and their workplace organisations that we have seen in this country in the past 30 years”.

And in a joint statement with Frances O’Grady, general secretary of the TUC, former coalition business secretary Vince Cable described the Bill as an attack on trade unions which is “very provocative, highly ideological” and without any evidence base at all.

Moreover, as O’Grady has pointed out, the Bill is being “rammed through at a rate of knots”. The government’s consultation has taken place at short notice and over the summer period in a cynical manoeuvre to minimise opposition to the Bill.

The Bill is intended to silence opposition to Tory cuts and, in particular, to “liquidate the power of public sector trade unionism”, says Keith Ewing, professor of public law at London’s Kings College, removing any barrier to austerity cuts in public services.Yet the government persists in its habit of doublespeak, describing the reforms as a way of protecting public services and standing up for working people. This could not be further from the truth.

Strike ballots

The Tory proposals are motivated by ideology, rather than evidence of need for reform. Among other things, the Bill mounts an attack on strike action — disruption from which, the government alleges, merits tighter control. Yet, as figures from the Office for National Statistics reveal, working days lost to strike action have plummeted over the years.

Since 2010, an average of only 647,000 working days have been taken by industrial action each year compared to 7,213,000 days per year in the 1980s. According to Peter Cheese, chief executive officer of the CIPD HR professionals’ body, this significant decline demonstrates that the government is “targeting yesterday’s problem”.

The proposed new strike ballot thresholds represent a serious attack on the ability to strike and are “almost certainly in breach of international legal obligations”, according to Keith Ewing and John Hendy QC in the Institute of Employment Rights’ publication Protect the right to strike: kill the Bill.

Hendy has observed that, “this Bill is about destroying collective bargaining”. The new higher ballot thresholds will make it very difficult to organise lawful industrial action. This goes to the heart of trade unions’ ability to organise collective action and thereby assert bargaining power, protect labour rights and resolve workplace disputes. As O’Grady stated in her address to this year’s TUC Congress: “If an employer believed we couldn’t strike, they wouldn’t bother to bargain.”

In agreement are over 100 of the UK’s leading academics who signed a letter in August explaining that weakening collective bargaining will impact negatively on pay, terms and conditions of employment and on productivity.

And while the Bill has been presented by the government as a modernising process, a glaring omission from the proposals is secure electronic and workplace balloting.

Len McCluskey, general secretary of the Unite general union, has urged the government to “scrap the archaic and undemocratic reliance on postal ballots and give trade unionists the right to secure, secret workplace balloting”.

The TUC has also expressed grave concerns about the new thresholds’ implications for equality. For example, TUC research suggests that women are likely to be disproportionately affected by the introduction of a 40% threshold in “important public services” (see box below) as nearly three-quarters of the trade union members working in these services are women.

Ballot thresholds

The proposed new ballot thresholds set out under the Trade Union Bill demand:

• a 50% turnout requirement for all industrial action ballots;

• that a majority vote in favour of industrial action must be achieved; and

• that in the case of “important public services”, support of at least 40% of all members entitled to vote in the ballot is required.

Anyone who abstains from voting will be deemed a “No” voter. The International Labour Organisation has criticised this as undemocratic, emphasising that “account should only be taken of the votes cast”.

The higher thresholds in ballots involving “important public services” mean it will be far harder to organise industrial action in the public sector. In addition, by giving a wide definition to “important public services”, the government seeks to restrict the right to strike of as many public sector workers as possible.

It is accepted principle in international law that special strike restrictions should only be placed on “essential” public services. “Essential” is defined as services where any strike action could endanger life, personal safety or health according to the ILO general survey 1994 (paragraph 159).

But the Bill defines “important services” far more widely, covering education, border security and transport, in addition to health, fire, decommissioning of nuclear installations and management of radioactive waste and spent fuel. The definition has also been broadened by including activities ancillary to the provision of “important public services”. Government examples of ancillary roles include groups such as hospital cleaners and technicians.

Any mandate for action will expire after four months. This will leave less time for a dispute to be resolved with the benefit of the additional bargaining power given by a mandate for industrial action.

Agency workers

The government plans to undermine strike action by allowing use of agency workers. Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 prevents employers using agency workers to cover the work of a striking worker. But the Tories want to remove this regulation and allow agency workers to provide cover, possibly on an indefinite basis.

These provisions specifically target public sector workers — all the examples given in the consultation document refer to use of agency workers in the public sector.

This is one of the government’s most blatant attempts to undermine strike action and collective bargaining and is “a breach of another international legal obligation, ILO convention 87”, as Ewing and Hendy point out. According to the ILO Freedom of Association Committee, “the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector … constitutes a serious violation of freedom of association”.

In addition, the period of notice of industrial action will be extended from seven days to 14, leaving more time for an employer to put in place arrangements to undermine the action.

Administrative and reporting requirements

By introducing additional administrative and reporting requirements, the Bill makes it harder and more costly for unions to organise lawful industrial action. For example, the ballot paper will need more detailed information than previously required, including a description of issues in the trade dispute, and there will be new reporting obligations to the Certification Officer (CO).

Keith Ewing has described the new role as a “state official who initiates complaints, decides complaints and then imposes a penalty” (see also Labour Research, October 2015, page 25). He adds that it is a “step into the Middle Ages in terms of constitutional principle”.


Meanwhile, when it comes to picketing, the government intends to infringe rights to protest on the picket line — and beyond. Picketing reforms include an obligation to appoint a picketing supervisor. Police must be given the picketing supervisor’s name and contact details. When picketing, the picket supervisor must wear a badge, armband or other identifying item.

These provisions will impact negatively on industrial action — it may prove difficult to persuade individuals to act as a picketing supervisor under these rules. Further, the detailed provisions make it harder to lawfully picket.

Beyond the picket line

Additional provisions go further, seeking to restrict protests away from the picket line, requiring unions to provide details such as plans for pickets and protests. This includes a requirement to state whether there will be loudspeakers and banners. However, as Labour Research went to press, it appeared likely that the government would drop a requirement that unions give two weeks’ notice of social media plans relating to picketing and protest (see page 7).

Public sector union UNISON’s successful online #TwoWeekWarning campaign pushed for this amendment. But Frances O’Grady has warned that “one concession” does not change the strength of opposition to the rest of the Bill”.

The government asserts that these reforms are intended to prevent intimidation of non-striking workers. Yet in 2014, the Association of Chief Police Officers reported that the current legislative framework in relation to managing picketing “is seen by the police as broadly fit for purpose and the range of criminal offences available to the police sufficient to deal with the situations encountered”.

Political funds

The Bill will end automatic contributions to Labour party funds on joining a trade union. It will introduce a requirement that members give written confirmation that they wish to contribute to a political party, changing to an “opt-in” system. This is clearly intended to impact negatively on Labour party funds and de-politicise unions.

Attacking union funding

And, in an attack on union funding, the Conservatives will end check-off in public sector organisations. Within Whitehall, despite strong opposition from unions like the PCS civil service union, check-off has already been scrapped in several departments.

Facility time

In a further infringement on legitimate union activities, public sector employers will be required to reveal details of union facility time, as the government also seeks to introduce regulations placing new limits on it.

This is described by Keith Ewing as, “the first time in British history that the government has taken the power to rewrite the terms of collective agreements — extraordinary”.

Opposition to the the Bill

Unions are united in their hostility to the Bill, and, last month, union members and supporters voiced their strong opposition to it at a national rally held to coincide with the Conservative Party’s annual conference.

Unions also came together to express a collective “No” to the Bill at September’s TUC Congress in Brighton where there were multiple motions against the Bill from a wide range of affiliates. The clear message was, as Frances O’ Grady said, to oppose the Bill “with every ounce of our strength”.

There is also international trade union opposition to the Bill. In a recent letter to business secretary Sajid Javid, the EPSU and PSI public sector union confederations confirmed that they are “collaborating with other international trade union organisations and reaching out to European Works Councils to join the campaign to oppose the proposed legislation”.

While there is, unsurprisingly, much trade union concern over the Bill, unions are far from alone in expressing alarm over the Bill’s provisions. From a variety of bodies representing many different interests — ranging from HR professionals, academics and MPs to civil liberties organisations — and from across the political spectrum, misgivings have been expressed at the government’s plans.

For example, the CIPD, Recruitment and Employment Confederation, British Universities Industrial Relations Association, Liberty, Amnesty International, British Institute of Human Rights, the Equality Trust — and even some Conservative MPs — have all expressed serious concerns about the content of the Bill.

The Regulatory Policy Committee (RPC), appointed by the government, has deemed the government’s impact assessments for the Bill to be “not fit for purpose”. They found evidence to be utterly lacking in relation to several aspects of the reforms (see Labour Research, October 2015, page 23).

Significantly, the devolved governments in Scotland and Wales, as well as a number of local authorities, have signalled that they may not cooperate with the new legislation.

Scotland, Wales and local authorities

In Scotland, where first minister Nicola Sturgeon, has proposed devolving trade union law to Holyrood as a method of blocking the Bill, the proposals have faced a backlash from Scottish Councils.

The Convention of Scottish Local Authorities (COSLA), which represents 28 out of 32 Scottish local authorities, issued a statement in September declaring that Scotland’s councils would “stand shoulder to shoulder with their trade union colleagues against the UK government’s Trade Union Bill”.

COSLA spokesperson councillor Billy Hendry said that COSLA leaders were “highly concerned that these changes are being brought in with no evidence to back up the assertion that this would modernise the industrial relations between councils and their trade unions”.

Hendry added: “Scottish councils are devolved public bodies and we are making it clear that we consider ourselves empowered to make our own arrangements with the trade unions in these matters. We will honour and protect existing industrial relations arrangements in local government.”

The proposals have also received short shrift from the Welsh government. First minister Carwyn Jones has expressed strong opposition, demanding that the Welsh parliament votes on the Bill before it can be passed as law. Speaking to the Caerphilly Observer in September, Jones said: “Public sector employment is devolved as far as we are concerned, although the Westminster government would disagree.

“In areas where we are responsible we will not be implementing the Trade Union Bill that attacks employment rights and trade union membership.”

Following Jones’s comments, Caerphilly Council became the first Welsh local authority to serve notice of a motion opposing the “counterproductive, vindictive, socially divisive” Bill.

And it seems that the government may also face a challenge from at least some English local authorities.

For example, in the north of England, Gateshead and Sunderland councils have condemned the Bill, while Yorkshire’s Wakefield Council has asked the government to rethink i ts “unnecessary attack on workers’ rights and civil liberties”.

In Leeds, council leader Judith Blake described the plans on check-off as “unnecessary and petty” and said the council would work with trade unions to campaign against the Bill.

Meanwhile, Labour leader Jeremy Corbyn has confirmed that Labour will oppose the Bill at every opportunity.

All in all, the Trade Union Bill represents a considerable blow for all those who believe in equality and social justice, the importance of collective bargaining and the role that trade unions play in safeguarding these.