An absence of fairness: the Trade Union Bill

According to Sajid Javid, the Secretary of State for Business Innovation and Skills (BIS), the Trade Union Bill currently before Parliament is “not a ban on strike action. This is about ensuring that our rules are modern and right and fit for today’s workplace”. As the Bill progresses through the House of Lords, Mr Javid’s rosy view has been challenged by the International Labour Organisation (ILO), the UN supervisory body responsible for scrutiny of compliance with international labour standards.

The Bill is introduced against the background of the labyrinthine procedures which unions must already follow before taking strike action, including requirements of a full postal ballot in which a majority vote in favour of a strike. Its key provisions include:

• new ballot thresholds – a minimum 50% turnout in all strikes and, in important public services, a requirement that at least 40% of the members eligible to vote are in favour of the strike (clauses 2-3),
• detailed notice requirements about strikes (clause 4),
• a shorter period during which strikes can be held (clause 8),
• additional constraints on picketing, requiring a supervisor at every picket (clause 9),
• new rules restricting members’ contribution to union political funds (clauses 10 and 11),
• restrictions on unions’ facility time – the time union officials spend on union duties – in the public sector (clauses 12 and 13),
• a prohibition on the deduction of union subscriptions direct from wages, known as check-off, in the public sector (clause 14) and
• linked changes, in separate regulations, allowing employers to employ agency workers to replace striking workers.

Despite opposition to the Bill from Conservative backbenchers as well as Labour Party MPs, so far only minor amendments have been made to the Bill. The provisions dealing with strikes, facility time and check-off were recently strongly criticised by the ILO Committee of Experts on the Application of Conventions and Recommendations, a body of twenty renowned experts responsible for monitoring national governments’ compliance with ILO Conventions. The Committee concluded the Bill would breach various international treaties ratified by the UK Government. Their report was made available in February 2016.

Regarding the new ballot rules, the ILO Committee accepted that a quorum may be fixed at an acceptable level, but criticised ‘the heightened conditions in important public services of support by 40% of all workers… which effectively means a requirement of 80 per cent support where only the 50 per cent participation quorum has been met’. This would, according to the Committee, ‘constitute an obstacle to the right of workers’ organizations to carry out their activities without interference’. Such a rule might be permissible for strikes in essential services where the health and safety of the population would be at risk or with respect to ‘public servants exercising authority in the name of the State’.

But the Committee expressed concern that the 40% requirement goes far beyond this, extending to primary and secondary education as well as all transport sectors, where it is ‘likely to severely impede’ the right of workers and unions to act in defence of their occupational interests. The Committee noted that these changes ‘come within a cumulated context of heavy procedural requirements for balloting, including the fact that balloting must be by postal balloting only’ and recommended the Government review the balloting method ‘with a view to its possible modernization’. It went on to criticise the proposal to allow employers to use agency workers to replace strikers, saying this too should be limited to strikes in ‘essential services’.

The Committee also emphasized the value of facility time and check-off for ‘the development of harmonious industrial relations’, especially in larger workplaces, such as the public sector. If there is to be any withdrawal of these entitlements, according to the Committee, this should not be by unilateral imposition, as contemplated in the Bill, but through genuine dialogue with the social partners including trade unions.

The findings of the ILO Committee give further support to the view that the provisions of the Bill will harm rather than promote harmonious industrial relations. They also beg the question: if the current Conservative Government wants truly to ‘modernise’ balloting rules, then why not consider forms of electronic voting, as hinted at by the ILO Committee? If such a mechanism is appropriate for selection of a Conservative mayoral candidate, why not here? While conceding it is not opposed to electronic voting ‘in principle’, the Government continues to resist its use for strike ballots, relying on unspecified security concerns.

Writing to Parliament’s Joint Committee on Human Rights (which raised concerns about compliance with international labour standards), Sajid Javid said there were no grounds for reconsidering the Bill. An Annex briefly reviewed compliance with ILO Conventions and reiterated the Government’s belief that ballot thresholds were being set at a ‘reasonable level’ and that ‘facilities should not impair the efficient operation of the employer’. If he has read the ILO Committee’s report, Mr Javid might want to think again.

Featured image credit: ‘Houses of Parliament’. CC0 via Pixabay.