Public Bill Committee

TRADE UNION BILL

WRITTEN EVIDENCE

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51715 Printed in the by The Stationery Office Ltd Contents

Dr Charles Umney (TUB 01)

Todd Bailey (TUB 02)

James Jeavons (TUB 03)

Society of Radiographers (TUB 04)

Stuart Seaman (TUB 05)

UNITE (TUB 06)

Royal College of Midwives (TUB 07)

Welsh Local Government Association (TUB 08)

Leeds City Council (TUB 09)

Trades Union Congress (TUC) (TUB 10)

Taxpayers’ Alliance (TUB 11)

Union of Construction, Allied Trades and Technicians (UCATT) (TUB 12)

Cllr. Simon Blackburn, leader of Blackpool Council (TUB 13)

UNISON (TUB 14)

City of Wolverhampton Council (TUB 15)

GMB (TUB 16)

ASLEF (TUB 17)

Community (TUB 18)

Vera Baird QC, Police and Crime Commissioner for Northumbria (TUB 19)

Royal College of Nursing (TUB 20)

Professor Keith Ewing (TUB 21)

Thompsons Solicitors LLP (TUB 22)

CBI (TUB 23)

London HR Directors Network (TUB 24)

NASUWT, The Teachers’ Union (TUB 25)

British Medical Association (BMA) (TUB 26)

SUEZ (TUB 27)

UNITE – further submission (TUB 28)

RMT (TUB 29)

Tony Wilson, Managing Director, Abellio London and Surrey (TUB 30)

Cllr Darren Rodwell, Leader, London Borough of Barking & Dagenham Council (TUB 31)

Communication Workers Union (CWU) (TUB 32)

National Union of Teachers (NUT) (TUB 33) CollegesWales/ColegauCymru (TUB 34)

North Lanarkshire Council (TUB 35)

Chair of North East Regional Employers’ Organisation TUB 36

Professor Keith Ewing – further submission TUB 37

UNISON – further submission TUB 38

Cllr Julian Bell, Leader, Ealing Council TUB 39

Directors of Workforce & Organisational Development, NHS TUB 40

The Law Society of TUB 41

Tom Flanagan Consulting TUB 42

Sara Ogilvie, Policy Officer, Liberty TUB 43

Dave Godson & Alan Duffell, Joint Chairs of East Midlands Social Partnership Forum TUB 44

Councillor Dee Martin TUB 45

Councillor Barrie Grunewald – Leader of the Council, St Helens Council TUB 46

Councillor Tony Newman TUB 47

GMB - further submission TUB 48

Councillor Alan Rhodes TUB 49

TUC – further submission TUB 50

Cllr Doug Taylor, Leader of the Council, Enfield Council TUB 51

Fire Brigade Union TUB 52

John Hannett, General Secretary, Usdaw TUB 53

Cllr Anthony Hunt, Deputy Leader at Torfaen County Borough Council TUB 54

Cllr Jennifer Mein, Leader of Lancashire County Council TUB 55

Dusty Amroliwala, Deputy Vice Chancellor, University of East London TUB 56

Cllr David Perry, Leader of Harrow Council TUB 57

Letter from the Department for Business, Innovation and Skills TUB 58a

Letter from the Department for Business, Innovation and Skills TUB 58b

Letter from the Department for Business, Innovation and Skills TUB 58c

Letter from the Department for Business, Innovation and Skills TUB 58d

Letter from the Department for Business, Innovation and Skills TUB 58e

Letter from the Department for Business, Innovation and Skills TUB 58f

Oldham Council (TUB 59)

Derbyshire County Council (TUB 60)

Derby City Council (TUB 61) Bill: Written evidence 3

Written evidence

Written evidence submitted by Dr Charles Umney (TUB 01)

1. I am a lecturer in relations at Leeds University Business School who has conducted and published various pieces of academic research on trade unionism and industrial disputes. I am submitting these remarks for consideration in relation to the Trades Union Bill. 2. Before continuing to address specific elements of the Bill in further detail, I would like to express concern over the consultation process. Various other observers have noted the short period for consultation. However, more fundamental than this was its restrictive nature, which frequently seems intended to shut down any scope for criticisms of the general thrust of the proposals as a whole. For instance, the respondent to the consultation is told about the proposals on turnout thresholds, and then prompted to suggest any additional groups they should be applied to, rather than seeking comments on whether they should be applied at all. This is evidently a problem because it suggests that the government has no real interest in understanding the nature of the issues involved in contemporary industrial disputes; only in pushing through its own agenda which, for various reasons discussed below, appears to be ill-founded and partial. 3. The overall tone of the Bill and the surrounding discussion is deeply worrying. The underlying assumption appears to be that strikes are simply a problem that must be minimised to the benefit of everyone. However, for many workers the right to strike is a critical last resort in their efforts to preserve jobs or working conditions, which may be under unprecedented pressure given current economic conditions. Even if in the, vast majority of cases, this last resort is rarely used, the existence of this right is likely to be an important factor in mitigating more severe downward pressure on wages and working conditions. 4. The point here is that while the government wishes us to believe that this legislation is targeted at counteracting only certain cases of high-impact militant trade unionism, the implications will be felt far beyond these. Any group of workers seeking to negotiate better conditions at work will be disadvantaged by these measures whether they intend to strike or not. More unscrupulous employers seeking to bargain aggressively with workers will know that, where a last resort once existed, it is now de facto out of reach (albeit not technically illegal). Indeed, as I will suggest below, the people likely to suffer most from it are those workers outside of well-organised bargaining units, and who may be in more contingent or low-wage forms of employment. These are people for whom, even at the present moment, conducting is a frightening and stressful , and whose ability to do so would be all but eradicated should this Bill be made law. 5. More specific comments on the three main proposals follow.

Ballot thresholds 6. The government has claimed that the proposed new turnout thresholds will in no way undermine the right to strike. This is of course important given that to do so would be in contravention of international conventions on workers’ rights. For example, the International Labour Organisation has recently held that the broader human right of freedom of association can only be upheld where the right to strike is also enforced. So while it is unsurprising that the government claims to be upholding the right to strike, any close reading of the proposals and wider context suggests that this claim is mistaken and possibly disingenuous. 7. It is clear that these proposals will be highly obstructive. This is most obviously the case with regard to workers classified as providing ‘important public services’. In such cases, it suffices to hypothesise a in which a strike ballot has a turnout of 50%. Even if 75% of votes cast were in support of the strike, the strike could still be declared illegal under the proposed thresholds. In this kind of (highly feasible) example, it is very difficult to sustain the belief that the right to strike is being maintained. While it has not technically been withdrawn, extraordinary and disproportionate obstacles have been placed in the way of exercising it. Indeed, research has already found that around half of strikes conducted since 1997 would have been rendered illegal by these measures.1 More worryingly still, the same researchers show that around 3.3 million workers, since 1997, would have been denied the right to strike after having voted for it. 8. However, even setting aside this initial assessment, wider context shows that trade unionists are indeed being treated in a discriminatory manner. Clearly, trade unions should also be worried about low turnouts on strike ballots. And indeed they are, because for some time they have been lobbying to be able to conduct electronic balloting. At present, they are forced to ballot for strikes through sending postal ballot cards to members’ homes. This renders them extremely vulnerable to various problems: outdated addresses (it is hardly unusual for someone to move house and omit to update their trade union), the extra effort involved for the respondent, or the likelihood that communications will simply be overlooked. These problems, which are likely to be important contributors to low turnout, could be at least partially rectified by electronic balloting. But it appears that the government will continue to refuse to allow this. As a result, we are left with a situation whereby trade unions are punished for low turnout, while legislation remains in place which ensures that turnout remains low. The government vaunts trade union ‘modernisation’ in one breath, and actively prevents

1 http://blogs.salford.ac.uk/business-school/wp-content/uploads/sites/7/2015/08/SalfordReport.pdf 4 Trade Union Bill: Written evidence

it the next. This is an extraordinary state of affairs which greatly exacerbates concerns that the rights of trade unionists are being specifically targeted. 9. The government’s reticence on removing barriers to improving strike ballot turnout indicates that they lack confidence in the central assumptions that guide these proposals. In its policy rhetoric, the government has argued that this will solve the perceived problem of strikes being conducted on weak mandates. This suggests that policymakers believe that there are some strikes which are forced on moderate memberships by militant union leaders. However, if this were really the case, then positive measures to improve turnout would a moderating influence making strikes less likely. The fact that the government does not appear willing to test this proposition tells a story in itself. In fact, the main losers from this Bill will be those workers where workforce sentiment is supportive of , but where for a wide variety of possible reasons, such as difficulties in balloting methods, lack of awareness of balloting procedure, or other logistical concerns, they are forbidden from striking on technical grounds. Such a situation is wholly forseeable under these measures, and it is hard to quantify the problems it would cause for constructive employer-employee relations. A highly likely outcome would be a more widespread sense of unaddressed on the part of the workers (which could well be manifested in other, less formalised, ways such as slow-downs, refusal of overtime, and so on), as well as longer and more entrenched strikes being called when they are allowed. 10. A particularly serious concern with these proposals is the potentially vague and all-encompassing way in which criteria such as ‘important public services’ are defined. In its consultation, for example, the government prompts respondents to tick a box agreeing that any activity likely to cause ‘severe economic disruption’ be considered in this category. This is worryingly expansive and could potentially be extended to any number of activities, depending on interpretation. Moreover, it also suggests that the important public service criteria could potentially be extended across entire bargaining units when any workers within the unit could fall into this category. Taken together, two points become apparent: (a) Firstly, that, far from these measures being directed at outlying cases of well-organised militancy such as Tube workers, even private sector employees performing jobs far removed from frontline public service provision could face insurmountable obstacles in pursuing their right to strike. In particular, workers in outsourced ancillary service positions, who are disproportionately likely to be in low- waged, , and who may well not be fully conversant with the legal technicalities surrounding employment law, could fall victim to these legal barriers. Indeed, they are far more likely to do so than the Tube workers mentioned previously, given the more difficult circumstances in which they would be balloting, with much weaker sources of moral or legal support from union representatives. In this sense, repressive new measures on strike activity are inevitably more likely to impact harder on already-vulnerable workers. (b) Secondly, the indeterminacy and vagueness of the legislation is likely to result in both unions and employers becoming involved in more and more legal disputes over the nature of the threshold that should be applied. As indicated by recent cases such as the British Airways/Unite dispute, these kinds of problem are liable to exacerbate and extend ill-feeling and conflict in the workplace, rather than ameliorate it. 11. To make such changes, the justification and evidence offered would need to be overwhelming. But given that strikes are now at historically low rates, and given the reputational damage and weakened bargaining position that inevitably accrues to union leaders that call strikes on genuinely weak mandates, the inability to provide this evidence is hardly surprising. As the Regulatory Policy Committee has noted in its evaluation of the government’s Impact Assessment, the actual supporting evidence and rationale offered for these measures is inadequate and unconvincing. The proposals thus seem like they are using flimsy pretexts to impose draconian measures. 12. Furthermore, it is easy to foresee what the negative consequences of these measures will be, and yet the government appears to have failed even to recognise, let alone mitigate them. In appearing to have acted in an illiberal and discriminatory towards workers, the proposals will generate huge resentment and lowered morale in workplaces (both in the public and private sector), thus also damaging productivity and the possibility of efficient, collaborative employment relations. Moreover, by generating new sources of bad feeling, it could serve in many cases to prevent the amicable resolution of disputes and even escalate industrial conflict. In the event of strikes taking place, the government will create a raft of new ways in which employers can legally obstruct them, meaning that both unions and employers will be tied up in complex legal conflicts over the technical details of ballots which endure far longer than the proposed action. Addressing Britain’s productivity gap requires good relations between management, employees, and employee representatives, and this means collaboration with, rather than suppression of, trade union activity.

Tackling ‘intimidation’ of non-striking workers 13. These measures proposed by the government regarding intimidation during the conduct of industrial disputes are ill-considered, partial and counterproductive. Some reasons for this assessment follow. 14. As with the ballot thresholds, it is extremely important that the government’s justification for these measures is strong. The government is, in effect, proposing to extend criminal law to entire new areas of activity. This is very worrying, given the concerns over freedom of assembly noted previously, as well as the Trade Union Bill: Written evidence 5

more common-sense point that subjecting ordinary workers, whose lives are entirely removed from any kind of illegal behaviour, to the threat of criminal proceedings is not something that should be done without very good cause. 15. However, the first problem with these proposals is that the government appears incapable of offering anything but the most cursory evidence of the ‘problem’ being addressed here. The government’s Impact Assessment is extremely unconvincing in this respect, and previous bodies such as the Carr Review have failed to find evidence in support of the assumptions underpinning this measure. It thus appears that the government is rushing into imposing draconian and extensive new measures, based only on its own assumptions drawn from isolated cases and stereotypes of trade unionists (the latter often amplified by sensationalised media reporting, which it appears the government has been influenced by). 16. The second problem with this recommendation is how partial it is. The Bill is explicitly geared towards ‘preventing intimidation of non-striking workers’. However, it apparently has absolutely nothing to say about intimidation of striking workers or of workers considering whether to strike (or rather, these things are mentioned in the introduction to the proposals and then hastily dropped). There are many issues in this respect which go completely unmentioned in the government’s literature in support of these proposals. These could include high profile problems such as the blacklisting of union members, as has happened most notoriously in the construction industry, but which the government appears to show little interest in acting against. However, it could also include less egregious but more widespread practices such as the following examples. (a) Threats issued by management that the pay deducted as a result of a strike will be disproportionate to the actual duration of the action. For instance, in the recent strikes over pensions and pay in Higher Education (of which many of your respondents will likely have personal experience), many workers in the bargaining unit have informally reported being told by the management of various universities that they would lose an entire day’s pay as a result of taking part in a two-hour strike. (b) Line managers sending emails to staff in a run-up to the strike, asking them to report in (against current strike rules) to state whether or not they will be joining the action. 17. While there is so far little formal research charting the prevalence of these kinds of activities (data gathering would be difficult here, for one thing), discussions with people in workplaces involved in strike action indicate that this is a recurrent issue in various different cases. This should not be taken lightly: managers are often able to instil profound fear and worry in workers, who are naturally afraid of any reprisals that should occur to them as a result of participating in a strike. In principle this should not be the case given that strike action is a protected activity, but it is clear that not all workers are going to be intimately aware of their rights in these instances. Hence it is highly feasible that the kinds of legalistic communications disseminated by management in advance of strikes, which refer in grave tones to the consequences of breach of contract, may in many cases have a distressing and repressive effect on workers – even those not actually planning to take part in the action. Once again it is likely to be those workers at the more precarious end of the labour market that are less able to contextualise and dispute this kind of pressure. The legislation currently appears to have nothing to say about these problems, preferring instead to target only trade unionists as the apparent source of workplace ‘intimidation’, and nothing about the duty of care owed by Human Resource managers to their staff. 18. Indeed, a third problem is that the Bill actually creates the potential for new forms of intimidation during industrial disputes, via the unprecedented criminalisation of ordinary workers taking industrial action. It requires that certain picketers be named in the capacity of ‘supervisors’, with their personal contact details provided directly to the police and makes it a criminal offence to have more than six people on a picket line. This represents a punitive and disproportionate approach to which, as at least partially indicated by the government’s own lack of evidence to the contrary, is in the overwhelming majority of cases a wholly peaceful act. Ordinary workers with no malicious intent whatsoever would be placed under police scrutiny and the ambit of criminal law, even for extremely minor ‘infractions’. 19. A fourth problem is that the Bill creates new stipulations which appear to demand huge quantities of bureaucratic micro-management both on the part of unions and indeed on the part of law enforcement. These appear ill-thought through and likely to lead to myriad complications and potential legal wrangling. For instance, the measures require that unions submit a full proposal of planned actions two weeks in advance of a strike, including stating whether tools such as social media will be used in the conduct of industrial action. This raises very worrying questions about potential repercussions for unions if their members, for example, send out tweets of facebook status updates relating to the strike. Will these all be vetted? By whom? What kind of communications will be criminalised and according to what criteria? The Bill is alarmingly unclear on questions such as these. 20. Hence, we have legislation that proposes subjecting huge numbers of ordinary workers to potential criminalisation in the course of wholly peaceful and legally protected activity. It is frankly incredible that this was seen as an appropriate response to such a weakly-defined problem.

The use of agency workers as strike breakers 21. The rationale for the proposed measure here is dubious and unconvincing. The purported financial benefits of this measure appear to have been drawn out of thin air, as explained in more detail by the Regulatory Policy Committee in its response to the Impact Assessment. In allowing employers to hire agency workers as 6 Trade Union Bill: Written evidence

strike breakers the government will be creating a tool which is of very limited utility to employers themselves even in the short term, and which is potentially disastrous for employment relations and human resource management in the long term. 22. As identified by the government’s own impact assessment, there are various reasons why employers would be ill-advised to draw on these new powers. The skills and training provided by agency workers may be ill-adapted to the nature of the job they are being asked to do, particularly in important public services. It may be wholly unworkable and chaotic to draft in a new staff for extremely short periods at very short notice. Even disregarding the logistical problems, the financial burden of agency fees and probable extra training costs would be significant in many cases. And perhaps most significantly, using agency workers as strike breakers is highly inflammatory from the perspective of workplace relations. It sends a clear message to workers that their employer prioritises the short-term solution of preventing the disruption over reaching agreement with their representatives. The bad feeling resulting from these measures would in many cases be incalculable. 23. Of course, the government may counter that the existence of these new rights is not an obligation to use them. However, even for those more enlightened employers that decline to use these measures, the Bill will cause problems. The logistics of familiarising relevant managerial staff with a new legal framework will raise further costs and bureaucratic complexities for all employers. Moreover, these measures will put agency workers in a highly difficult and potentially damaging situation. They could, in effect, be asked to intervene in an industrial dispute on the side of the employer. It may well be that they are uncomfortable with the ethics of this, but feel unable to turn down offers of work for fear of jeopardising future opportunities.

Alternatives 24. Ultimately, with these measures the government is choosing to address problems of industrial conflict by treating the symptoms rather than the cause. Moreover, it is attempting to treat the symptoms in a highly authoritarian and discriminatory way. This will lead in many cases to frostier employment relations, and a series of oppressive new conditions in the exercise of employment rights which will fall most heavily on the most vulnerable workers. Instead, the government should be trying to address the causes of industrial disputes. Where we find recurrent strike activity, this may well be a sign that unions, far from being too strong, are actually shut out of any real channels of influence. In Britain, if we had stronger co-determination rights (such as wider use of Works Councils) and better institutions for preserving worker voice, including legally-binding , the ‘last resort’ of the strike would be used even more infrequently than it is today. This is a lesson illustrated by other European economies such as Germany or the Nordic countries, where strikes are less frequent due, not to weaker unions or more restrictive legal frameworks, but quite the reverse: a genuine effort to create institutional space in which trade unions can function. This Bill is a decisive step away from that objective and towards more confrontation. September 2015

Written evidence submitted by Todd Bailey (TUB 02)

1. Summary. Under UK law, unions cannot force employer recognition if an employer already recognises another union voluntarily, no matter how few employees are members of the other union. I urge the House of Commons to amend the Trade Union Bill so as to ensure that an employer could not conspire with an unpopular union to perpetuate self-serving collective bargaining arrangements that lack substantive employee support. 2. Introduction. I write as an academic employed in a Russell Group university, with some 10 years’ experience as an officer in the union’s local branch. I am currently also an elected representative on my union’s national executive committee. Although my university colleagues generally appreciate the efforts I make to represent their interests to management, many of these colleagues do not believe that “the union” as a whole reflects their views. Some have talked of starting an alternative union that would be more representative of the workforce, but the legal framework makes it hard for a new union to win recognition by an employer. 3. Statutory recognition. According to the gov.uk web site, a union can force a reluctant employer to recognise the union by applying for ‘statutory recognition’. The union must have a certain level of membership, along with evidence that most employees are in favour of recognition. However, the union cannot apply for statutory recognition if there’s already a recognition agreement that allows another union to represent employees in the bargaining unit. The web site referred to here is at: https://www.gov.uk/trade-union-recognition-employers/statutory-recognition 4. Example 1. A new provider enters the higher education market, and its employees ask their employer to recognise Union A. The employer could pre-emptively enter into a voluntary recognition agreement with Union B, even if not a single employee is a member of Union B. In that case the employees could not force their employer to recognise Union A, even if 100% of employees were members of Union A, favoured recognition of Union A, and believed that Union B would not represent their interests well. 5. Example 2. A university with a large medical school employs many doctors and pays them the same rates they would earn in the National Health Service (NHS), on a pay scale which is separate from that used for Trade Union Bill: Written evidence 7

other employees. The British Medical Association (BMA) asks the university for recognition, but the university refuses. If the university already has a voluntary recognition agreement with some union, there is no way for the doctors employed by the university to force the university to recognise the BMA. 6. Conclusion. Although the principle of self-determination means that peoples have the right to be governed by their own consent, as in the Falkland Islands, for example, or Gibralter, Northern , or Scotland, under UK law workers do not have the right to choose which union will represent them in collective bargaining with their employer. The Trade Union Bill should be amended to allow employees to determine which union represents them in collective bargaining. September 2015

Written evidence submitted by James Jeavons (TUB 03)

1. This is submitted in my own personal capacity as an interested member of the public. 2. I support Sections 2 and 3 (requirement for 50% turnout and 40% support) if these requirements are extended to other ballots involving those seeking election to public office. If this is not the case, then this is an excessive burden on Trade Unions given that those in public office have more of an impact on the day to day lives of the public. Any turnout and support requirement must be the same for all such ballots in the interests of fairness. 3. Section 9 (2) seems excessive and I am concerned that the union picket supervisor could be made responsible for the behaviour of others involved in the picket. Each individual must obey UK law and remain responsible for their own actions, so I would change the word ‘supervise’ to ‘facilitate’. 4. I question whether any political parties could meet the conditions specified in Section 11? If they cannot, then this section is hypocritical and the rules for political parties and trade unions should match. 5. I do not support Section 13 as this opens up the possibility of unnecessary meddling in the functioning of public services based on political ideology. Working Together between employers and trade unions is the best way to prevent industrial action happening in the first place and providing facility time as required to meet the needs of good industrial relations a central part of this. Restricting facility time will reduce the ability of trade union representatives to do their job and industrial relations will suffer, making strike ballots that are in no ones’ interest more likely. 6. I question whether UK political parties have to comply with Section 14 and 15 (Annual Returns)? If not, again, this is hypocritical and rules for both should match.

Summary 7. I support most provisions of the Bill on the grounds that most well run Trade Unions should be able to comply with the requirements set out and that it is fair that such requirements are met given the potentially disruptive nature of the action. 8. I oppose some specific provisions of the Bill as I feel they are excessive either because they exceed the requirements laid down for political parties or make individuals responsible for the actions of others that they should not reasonably be asked to control. 9. I feel that any excessive and hypocritical pieces of legislation damage the reputation of politicians and the political system in the UK. Fairness of the rule of law is a fundamental principle of the ‘union’ that forms the UK and anything that disrupts that balance is ultimately damaging at a time when the existence of the UK is still under intense scrutiny. September 2015

Written evidence submitted by the Society of Radiographers (TUB 04)

1. introduction 1.1 The Society of Radiographers is the trade union and professional body representing over 28,000 members working at all levels in diagnostic imaging and radiotherapy. The vast majority are registered radiographers although our membership extends to others working in radiography including assistant practitioners and support workers. Over 85% of radiographers in the UK are members. We are democratic, led by a Council of elected members with policy determined by an annual delegates conference. Our work is transparent and we are, at all times, accountable to our membership. 1.2 Most members are employed in the NHS throughout the UK. Around 3000 work in the private sector. We rely on our local workplace representatives to provide members with representation with one representative in each workplace to cover industrial relations issues. We also have 388 Health and Safety representatives undertaking the role of protecting the health and safety of members and 209 Trade Union Learning 8 Trade Union Bill: Written evidence

representatives who assist members with their continuing professional development which they are required to evidence as part of their professional registration. We are committed to the partnership model of industrial relations. 1.3 We are proud affiliates of the TUC. We have contributed to their response to this consultation and support its conclusions. In this response we focus on areas of specific concern to us and on the unfair and disproportionate impact much of the Bill will have on our members. We also comment on the publicised position of Government to allow agency workers to cover for striking workers. Although not part of the Bill itself this must also be seen in the context of the comments we make below. 1.4 Radiographers are regulated by the Health and Care Professions Council (HCPC). They are therefore subject to the HCPCs Standards of Conduct, Performance and Ethics. This places upon our members a requirement to act in the best interests of patients.2 This is supplemented by our own Code of Professional Conduct requiring radiographers to promote and protect the best interests of patients at all times.3 1.5 Our members are therefore subject to stringent regulatory and professional obligations ensuring they act at all times in the interests of their patients. These obligations dictate how a radiographer works and has a significant impact on the conduct of our members even when they take strike action. This response takes into account this background and the requirements already placed upon our members externally and through our own guidance. We believe Government may not be briefed in detail on organisations such as ours and it is therefore our considered opinion that the introduction of the provisions of the Bill will create an unhelpful industrial relations climate making it more difficult for our members to put patient interests first even during industrial action. Inevitably this will adversely impact of patient care.

2. Background 2.1 Our members rarely take industrial action. In the last 35 years we have had two national stoppages. One for four hours in 2011 protesting at cuts to pensions and simultaneous increases in contributions. Our members also took three short stoppages during the 2014-15 pay campaign after the coalition government rejected the recommendation of the Independent Pay Review Body to increase NHS pay by 1%. This was resolved when government belatedly applied the 1% increase to most workers in the NHS. 2.2 Occasionally members are involved in local disputes. Usually these occur where members work long, unlawful, and dangerous hours covering out of hours work. When resolved members often see a reduction in pay but can go to work without feeling exhausted and better able to comply with their professional and regulatory obligations to patients. Unfortunately it can take strike action to concentrate the minds of NHS managers even where the issue is unequivocally related to the safety of patients. 2.3 Nevertheless members rarely take strike action. When they do it is unquestionably a last resort when discussions have failed. However, when they strike we agree detailed arrangements ensuring that while patients may be inconvenienced their care is not compromised. Indeed, after the pay dispute ended the Secretary of State for Health thanked the unions for maintaining patient safety and the quality of care. Of course for our members the commitment to patients is paramount as evidenced by the documents already referred to. 2.4 This submission looks at areas of the 2015 Trade Union Bill of particular concern to our members. Enhancing our democratic and transparent process, we also conducted a membership survey on the Bill, the results of which have been used to inform this submission. The results can be found at Annex 1 and we draw the committees’ attention to the fact that nearly 80% responding felt the Bill’s measures adversely impact on patient safety.

3. industrial Action Ballot Thresholds 3.1 Even for a relatively small organisation such as ours the proposed new ballot thresholds make it more unlikely that members would participate in industrial action and would thus curtail their right to strike. 3.2 Our members rarely strike over their pay and conditions. Occasionally, however, it is necessary to strike on issues of patient safety and working hours. Imposing threshold requirements without a parallel decision to allow modern electronic methods of participation in the ballots will undoubtedly make it more difficult for our members to take, or even threaten, industrial action in these circumstances. 3.3 The Government have promoted this Bill as enhancing trade . Nothing could be further from the truth. Many of our members abstain from voting in industrial action ballots. This is a principled position they wish to take but then abide by the decision and participate. Unfortunately this Bill will no longer allow members to abstain and would instead regard them as voting against industrial action. This is unfair, disproportionate and has no respect whatsoever for the principle of abstaining. 3.4 During the 2014-15 pay dispute 75% of our members participated in strike action, although only 43% participated in the ballot.

2 Page 3 of the Standards: http://www.hcpc-uk.org/assets/documents/10003B6EStandardsofconduct,performanceandethics.pdf 3 Paragraph 1.7 of SCoR Code of Professional Conduct: http://www.sor.org/learning/document-library/code-professional-conduct Trade Union Bill: Written evidence 9

3.5 This is explained by two factors. First that many members think carefully before taking industrial action ensuring their professional and regulatory obligations are not being compromised. An abstention in the vote, but support for the overall decision, recognises this and should be permitted and not treated as a vote against as it will be if this provision of the Bill becomes law. 3.6 Secondly we are still prevented from using secure on line means of voting. In our survey (appendix 1) it can be seen that 83% of members would be more likely to participate in industrial action ballots if electronic voting were to be allowed. 3.7 It is unfair that legislation still prevents unions from using these methods. No other sector of society is restricted in this way. Company AGMs, other voluntary groups, Building Societies, and political parties all use electronic means of voting if they wish. Shares are securely traded on-line. The fact that this remains illegal for industrial action ballots show this is a Bill that aims to restrict strike action and is not concerned about assisting unions to ensure their members participate more fully. 3.8 Our student members qualifying this year and registering with the HCPC have lived their entire life with home computers, the internet and email. They are comfortable using all forms of new technology. They routinely bank on-line and pay for things securely using contactless payment cards. Government should be mindful of the message it is sending to this generation of trade unionists who unanimously believe that it is not government’s role to prevent the use of modern technology by their trade union. 3.9 We therefore propose amending the Bill to allow unions to use secure online voting methods. Our survey shows this would help achieve the participation levels government wants.

4. Picket Line Arrangements 4.1 We believe the provisions in the Bill to further regulate picket lines are unnecessary and harm the good industrial relations maintained during a strike. The requirement to give names to the police raise human rights issues and could be used for blacklisting purposes by the worst employers. 4.2 We believe this will have an adverse impact on the conduct of picket lines. The Bill’s proposals imply that strikes, trade unions and trade unionists taking strike action are motivated by self interest, are aggressive and hold the public at gunpoint while pursuing their own interests at the expense of customers, patients, passengers or pupils. Nothing could be further from the truth. 4.3 Picket lines involving our members are disciplined and show respect for patients and other colleagues not on strike. The professional and regulatory standards required of our members apply at all times whether at work or not. If our members fall short of these standards while on a picket line they can be referred to the regulatory body (HCPC) and potentially struck off. There are no examples of a member’s conduct on a picket line leading to a referral which shows just how unnecessary these proposals are. 4.4 Our picket lines are flexible allowing members to show support for strike action but also to return to work, while still on strike, honouring our commitment to patient care during the strike action. Whilst we always aim to keep within the guidelines on picketing, members on a picket line will be changing regularly even during a four hour stoppage. The responsibilities placed on the picket line supervisor are therefore unrealistic for an organisation such as ours with our responsibilities to patients, particularly for members employed in radiotherapy treating patients whose treatment is quite clearly time critical. 4.5 In addition, as a small organisation, responsibility for picket line supervision falls on members. Understandably they will be reluctant to accept this responsibility meaning the picket line itself will be unlawful under the Bill. 4.6 These provisions need to be scrapped. Legal redress is available where there is intimidation but is rarely used. Picket lines tend to be good natured and friendly. Often people are leaving and joining whilst at the same time seeing patients. Should this become law our members on strike will not attend the workplace making them unavailable to provide care. 4.7 We believe these provisions demonstrate a prejudicial view of unions and members and fail to recognise the commitment healthcare professionals show to patients during strikes and when on a picket line.

5. Political Fund Arrangements 5.1 We are preparing to ballot members on the establishment of a political fund as a direct result of the changes made to the Political Parties, Elections and Referendums Act 2000 by Part II of the 2014 Lobbying Act and the threat posed to our long-established campaigning The rules of the fund prevent it being used for affiliation to a political party. 5.2 The new requirements to opt-in to paying into a political fund and for a reballot every five years are unfair, burdensome, and unnecessary, implying that every trade union political fund is used to affiliate to the Labour Party. 5.3 Establishing a fund will ensure we continue to speak up on behalf of members, their patients and on behalf of the profession. Without a political fund we are concerned that we could be stopped from doing this by politicians who do not like what we say. When we speak out on issues such as hospital closures, patient safety, 10 Trade Union Bill: Written evidence

developing the role of the radiographer to allow prescribing and reporting, the impact of being a shortage profession in radiotherapy and against cuts in protected study time, we do so because our members want us to. We need to establish a political fund to ensure we can continue to do this, as is our democratic right, on behalf of members and their patients. 5.4 The Bill makes it more difficult for us to establish a viable fund and potentially reduce our effectiveness in speaking out for our members and their patients. Any opt-in arrangement inevitably reduces take up. That is why the coalition Government introduced opt-out in relation to the auto-enrolment of working people into pension funds. 5.5 Legislation already requires a ballot of all members to establish the fund allowing those who wish to, to opt-out once it is established. As we will not affiliate to any political party and have a position of political independence we make no comment regarding using political funds for affiliation purposes. However, there is no justification whatsoever for requiring opt-in in our circumstance where the rules of the fund, as overseen by the Certification Officer, rule affiliation out and instead allow our organisation to challenge decisions of politicians regardless of political party. Any limit on this is anti-democratic and concerns not just those with an interest in trade union rights but also those with an interest in human rights. 5.6 These provisions need to be scrapped.

6. facility Time Arrangements 6.1 The proposals to abolish check off or DOCAS do not affect us so we make no comment other than to say the proposals ignore the fact that these arrangements are commercial arrangements between unions and employers. There is no place for Government to legislate in relation to such commercial arrangements. 6.2 We are very concerned about the proposals in relation to facility time. Again we conclude that these proposals are based on a mistaken and prejudicial view of the role of local trade union representatives. 6.3 Again there is no place for Government to legislate here. Each NHS Trust or health board is a separate employer and facility time arrangements are agreed through the collective bargaining process. This is not an area for government to legislate, as is proposed in the reserve powers contained in the Bill. 6.4 The concept of ensuring industrial relations issues are resolved at the lowest possible level by the people impacted by them is a fundamental cornerstone of the partnership approach to good industrial relations. Time off for local representatives is therefore efficient, cost-effective and cheap ensuring matters are not escalated unnecessarily. Restricting facility time in the way proposed damages this approach immeasurably, resulting in far more issues being passed to full time officials of unions who inevitably will not have local knowledge needed to resolve matters. Conflict will inevitably increase and harm the partnership approach embedded within the NHS. 6.5 Of particularly concern is that Health and Safety Representatives and Union Learning Representatives (ULRs) are included in the Bills provisions. The positive work of health and safety representatives is well documented and the work of SoR H&S reps is widely respected throughout the NHS by all as being impartial and evidence based, providing much needed expertise on issues such as compliance with the Ionising Radiation Medical Exposure Regulations. 6.6 Our ULRs provide an essential service in assisting members with their ongoing commitment to Continuing Professional Development, a commitment they are required to regularly evidence if they are to maintain their registration. 6.7 These representatives deliver significant savings to the NHS as we share the responsibility for ensuring members are working safely and able to maintain their professional registration. 6.8 Including Health and Safety reps and ULRs in the facility time provisions will do nothing to improve industrial relations instead leading to the NHS incurring greater cost than at present. Industrial Relations reps make a huge contribution to ensuring partnership working is embedded at every level in the NHS. Any reference to the NHS should be removed from the Bill. Facility time is a matter for individual NHS employers to decide on and not one for legislation.

7. use of Agency Staff 7.1 We also understand that Government is planning to allow agency staff to be used during a period of industrial action. This separate but related consultation is deeply worrying. At present when members take industrial action we put in place clear and detailed guidance to members to ensure patient care is maintained. In the case of members working in radiotherapy this advice stipulates the criteria for assessing which patients should be treated during a strike and is externally verified. 7.2 We believe the use of agency workers to do the job of radiographers on strike will inevitably have a detrimental impact on patient care. There will be no role for us to ensure service levels are maintained. Agency workers will be registered radiographers but will lack detailed knowledge and team working experience excellent patient care relies on. Our experience is that there is a disproportionate number of referrals to the Trade Union Bill: Written evidence 11

HCPC of radiographers working for agencies and a higher number receive their training from outside of the UK. 7.3 We believe we show professional leadership in ensuring patient care is fully protected when our members are on strike but the proposals to use agency staff will at best hinder this and at worse make it impossible to achieve inevitably putting patients at greater risk.

8. Summary —— We believe the 2015 TU Bill is unnecessary and counter-productive. It will do nothing to improve industrial relations, but will do the opposite. It is not needed and it will make it far more difficult for our members to ensure patient safety when they take strike action. —— Its provisions in relation to Facility Time, Picket Lines and Political Funds should be scrapped. —— The facility time proposals will harm the partnership approach to industrial relations embedded in the NHS and make it more difficult for problems to be resolved locally by those directly affected. —— The picket line proposals fail to appreciate the professional and regulatory standards our members must apply at all times and place unnecessary and burdensome requirements on what are always peaceful affairs. —— The political fund proposals are undemocratic and will make it unnecessarily difficult for organisations like ours to stand up for members, their patients and for their profession. —— The proposals for ballot thresholds are also unnecessary but if Government is concerned about participation in these ballots the restriction on trade unions using modern, secure means of voting must end. Unless they do this the Bill will be regarded as an attack on trade unions, an attack which Government appears to want to pursue with little or no regard for the adverse impact on the excellent industrial relations that exist in most parts of the NHS or, in our case, for the adverse impact it will have on patient safety. September 2015

APPENDIX 1

SOCIETY OF RADIOGRAPHERS – TRADE UNION BILL SURVEY RESULTS Q1. Do you think it is fair that members of trade unions working in essential services such as the NHS should have different rules? Response: Yes 21.7% No 78.3% Q2. Would you be more likely to participate in industrial action ballots if we were allowed to use secure online voting methods? Response: Yes 83.3% No 16.7% Q3. Do you think allowing agency workers to take over the jobs of trade union members on strike would impact on patient safety? Response: Yes 79.2% No 20.8% Q4. Do you think the restrictions that will be placed on trade union members using social media during industrial action are fair and workable? Response: Yes 15.2% No 84.8% Q5. If the Trade Union Bill does become law is it likely to have any effect on the way you would vote in the future? Response: Yes 62.6% No 37.4% 12 Trade Union Bill: Written evidence

Written evidence submitted by Stuart Seaman (TUB 05)

I am a member and workplace rep of the National Union of Journalists.

These are my comments about provisions in the Trade Union Bill that affect me as a union member and rep.

Picket lines and

The requirement to appoint supervisors of picket lines with official authorization documents that the police or anyone who feels like it can demand to see is unduly onerous. The same goes for the requirement to identify oneself to the police in advance. I’m sure the police have better things to do.

Reporting plans for picket lines and protests 14 days in advance (apparently with times, places, numbers, paraphernalia such as banners etc) is unrealistic; it would be next to impossible to comply with this. As a workplace rep who has organized pickets, I know that the precise details and names are usually agreed the night before.

The proposed demand for advance notice of campaign methods including via social media is completely unreasonable and will be impossible to comply with. How can a union control what its members do and post on social media? The dividing line between official union and unofficial members’ posts will be impossible to police.

The scope for vexatious challenges is obvious. Perhaps that is the purpose. This can be selectively applied, as and when it suits, depending on the target. It is a method used by the Kremlin with some success (not so far- fetched when one Conservative MP has already described some of the Bill’s provisions as worthy of Franco’s Spain).

Ballot turnouts

The imposition of thresholds, set against the refusal to allow electronic or online voting, is unreasonable and points to an agenda. I see that electronic voting is acceptable for the Conservative Party to choose its London mayoral candidate.

Journalists can be called on to travel on assignments, which can be lengthy and abroad. They may not be able to familiarize themselves with the issues or to vote, especially if the vote is non-electronic. Turnout thresholds could hamper my union more than many.

Certification officer

The proposed power to investigate unions even if nobody has complained (so if the officer simply feels like it) is unreasonable. Like the picketing and social media stipulations, it is needless red tape and a recipe for vexatious challenges and for unions to be victimized and threatened with being financially crippled.

Facility time

This is time well spent. In fact much of my trade union activity takes place in my own free time. But I do make use of facility time to prepare for meetings with members and to support them in resolving workplace issues. This time saves the employer resources in the long run, by avoiding escalation.

As a workplace rep I have helped members to resolve issues with the employer that could have gone to Tribunal. And I have helped members to file cases at Tribunal as a last resort – these were resolved before trial, again saving the employer the cost of full proceedings. (On the single occasion I did help a member all the way to Tribunal, the employer lost the case.)

The requirement for public sector employers to publish detailed statistics on facility time will cause unnecessary red tape and seems designed to provide ammunition for those who do not understand the benefits of facility time and would have it curtailed or banned.

Political funds

My union (the NUJ) is not affiliated to any political party and nor am I. But I believe that the proposed changes to the way that unions fund political activities including the Labour Party are an attack on the Labour Party’s finances and are damaging to democracy. They could also be counter-productive: a future non-Conservative government might like to examine the non-transparent and undemocratic corporate funding of the Conservative Party. Governments should legislate in the national interest and not for partisan political advantage. Trade Union Bill: Written evidence 13

Strike action The assumption seems to be that union members go on strike at the drop of a hat. I can assure you that is not the case. Unlike some people (and dare I say it, some MPs) I have no source of income other than the day job – no consultancies, or non-exec directorships or after-dinner engagements on the side – so the loss of a day’s pay matters. Striking is a last resort. October 2015

Written evidence submitted by UNITE

This evidence is put forward by . Unite is the UK’s largest trade union with 1.4 million members across the private and public sectors. The union’s members work in a range of industries including all the manufacturing and transport sectors, financial services, print, media, construction, local government, education, health and not for profit sectors. 1. Unite is in a position to provide the Committee with evidence based on our experience of workplace ballots and analysis of information from others, which is particularly relevant to the issues. We would be happy to supplement this evidence orally on 13 October or provide other evidence at a hearing. In seeking to assist the Committee focusing on the issue of democracy and workplace ballots, we do not want to undermine our other evidence and responses to the Bill and related matters, including on using agency workers4 to break strikes and on human rights and the rule of law. 2. Sajid Javid, the Minister responsible for the Bill in the Commons says in the explanatory notes to the Bill, in relation to the European Convention on Human Rights: “In my view the provisions of the Trade Union Bill are compatible with the Convention rights.” 3. This is a dismissive affront to Human Rights, Fundamental Freedoms and the Rule of Law.5 Unite is bound to ask itself whether it is right to break domestic laws that are themselves so far beyond the pale of international laws and standards mainly founded on British requirements after World War II. 4. Sajid Javid’s only response to the House at Second Reading to the calls for secure workplace ballots was: “I assume the hon. Gentleman is referring to e-balloting, but I am concerned about fraud and that the identities of people voting in a secret ballot may be revealed. In fact, the Speaker’s Commission on Digital Democracy, which looked at the use of digital apparatus in elections, also shared those concerns. I do not think it would have been appropriate to suggest such changes.” 5. This is an affront to democracy and to the intelligence of our members. 6. We will deal with fraud, identity and the Speaker’s Commission below. There is strong evidence of the successful use of workplace ballots under the auspices of the Central Arbitration Committee (CAC) since 2000, in relation to the law on recognition. 7. Analysis of the CAC data on workplace ballots is set out in the first appendix to this document. The headline data is that between 2000 and 2014 there were 862 applications for trade union recognition, and of these 209 went to a ballot of the workforce. There were 63 CAC ballots that were conducted at the workplace (including ‘combination ballots’).6 For workplaces with bargaining units of more than 50 workers in both forms of ballot recorded a return rate of more than 52%. The mean average return rate in workplace ballots (including combination ballots) was 88%. In those ballots of more than 50 workers, all workplace ballots (including combination) had a return rate of over 87%. 8. It bears emphasis that these are not usually electronic workplace ballots. There is no evidence of fraud. Indeed there is no evidence of problems with the workplace ballots at all. The CAC annual report for 2009/2010 refers to the introduction in 2004 of “the facility to complain that another party was using an ‘unfair practice’ during the balloting period… potentially a contentious provision, because perhaps there is sometimes a fine line between vigorous campaigning and undue pressure, but, to date, the CAC has received only six complaints.” In the 2007/2008 report7 we read: “There have now been six such complaints and the CAC has yet to uphold one.” There must have been one such complaint outstanding at that

4 Here is the response to the BIS consultation on hiring agency workers to break strikes submitted on 9 September 2015 (inks to the other 2 responses are in Appendix 2 below): https://apps.groupdocs.com/document-viewer/ Embed/9649e0dafaefdb0b6aacbc16b4b7cd545b0341b8ba346c44fc74c9381dab32b9?quality=50&use_ pdf=False&download=False&print=False&signature=m8a%2BbZBLzCsWlZa8HMrXibUhhiw 5 Unite has seen the evidence to the Committee from Thompsons Solicitors on the legal issues and endorses that, in references the union has made in the responses to the BIS consultations. 6 A workplace ballot with the option of, for example, an email and/or postal vote for those who might be away on the day of the ballot, or who might prefer to vote away from the workplace. 7 http://webarchive.nationalarchives.gov.uk/20140701192834/http://www.cac.gov.uk/media/pdf/j/2/Final_CAC_Annual_ Report_07-08.pdf 14 Trade Union Bill: Written evidence

time, because in the following year’s report8 there is specific reference to one complaint by the CWU, but the union’s complaint was not upheld. 9. Since then in every year the following sentence appears in each annual report:9 “The CAC was not called upon to adjudicate on any complaints that a party had used an unfair practice during the balloting period.” 10. Electoral Reform Services10 told us recently: I. “Section 54 of the Employment Relations Act 2004 provides that any ballot or election authorised or required by the Trade Union and Labour Relations Act 1992 (the 1992 Act) conducted by a particular means of voting must meet a “required standard”. II. A ballot or election meets “the required standard” if it is such that:– (a) those entitled to vote have an opportunity to do so; (b) votes cast are secret; (c) the risk of any unfairness or malpractice is minimised. III. ERS believes that “the required standard” when the place of voting is the workplace can readily be met providing the union and the administrator ensure that certain standards, practices and processes are adhered to (as they have been since 2000 in the context of recognition ballots). IV. Those entitled to vote have an opportunity to do so This will require: (a) arrangements with the employer regarding access to employees at all workplaces for sufficient periods to enable all members to vote at all workplaces or, alternatively, appropriate polling places established near the place of work or outside the place of work could be established (eg mobile polling stations) (b) arrangements for members who are not at the workplace for any reason on the day of polling must be adequately provided for. V. Votes cast are secret This is relatively straightforward to achieve: any workplace ballot would be conducted in line with public elections, polling station rules. The actual process of voting could either by the marking of a ballot paper or indeed using a tablet device – both would provide secrecy. VI. Unfairness or malpractice Again, arrangements can be put in place to deal with this and the ballot should be monitored appropriately. The issue of members identifying themselves in the workplace is not problematic. With the notice letters and description requirements as they are, members are already identifiable.11 The difference is that they are only identified to the union and the employer and not necessarily to their co-workers. Whilst it could be argued that undue pressure is placed on individuals to have to almost openly declare their membership to vote, some sort of opt out of workplace ballot should be available for members who were concerned, which could also deal with the issue for those who are not at work on the day referred to above. In practice a correctly administered polling station would provide greater security of the actual than a postal ballot so unfairness and malpractice in relation to the administrative vote casting process would be reduced. 11. No doubt the Committee will be aware of electronic balloting in other contexts, such as selection for the Conservative mayoral candidate. Presumably there were no insurmountable concerns about fraud for this election. Another example is the Labour Party’s recent leadership election – possibly the biggest e-ballot in UK voting history and for which there was no evidence of widespread fraud, in spite of claims by some sections of the media and MPs. 12. Unite inevitably has vast experience of balloting, not least in the context of industrial disputes. Given the state of the law, including the ease with which injunctions are granted,12 we have to apply enormous resources. The problems of postal balloting are huge. The problem of maintaining up to date postal addresses of 1.4 million people is vast – people simply do not notify the union, in good time or at all. They access the unions services at the work place, by telephone or online.

8 http://webarchive.nationalarchives.gov.uk/20140701192834/http://www.cac.gov.uk/media/pdf/0/n/Final_CAC_2009_Annual_ Report.pdf 9 See for example the latest report here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/446943/CAC_ Annual_Report_2015.pdf 10 http://www.electoralreform.co.uk/company-overview 11 It is hypocrisy to refer to concern that “the identities of people voting in a secret ballot may be revealed” and at the same time introduce laws requiring trade unionists to wear arm bands, especially coupled with the very real problem of blacklisting. 12 Both the ILO and the Council of Europe have condemned the ease with which the courts here grant interim injunctions to employers. Trade Union Bill: Written evidence 15

13. We have many examples that we can give of problems with balloting and challenges we have faced. When technicalities under domestic law are used by employers and the court nullifies the effect of a ballot, in the face of the members’ overwhelming vote to take industrial action, we have to re-ballot. One such challenge by British Airways was based on the failure to notify our members that there were 6 spoilt ballot papers in relation to a ballot of about 10,000 members. Clearly that does not help industrial relations. 14. Northampton General Hospital NHS Trust, was so keen to force its 78 biomedical staff, to take a £6,000 a year pay cut and a doubling of their night shift patterns, they locked them out first sought to bring in agency workers and then to make those agency workers into personal service limited companies. 15. It is not uncommon for disputes to arise in the context of risks to the health, safety and lives of our members and the public, such as in relation to airlines seeking to reduce the number of cabin crew on flights to dangerous levels. Another dispute recently have involved refusal to have a health and safety committee at Sellafield. 16. We currently have a dispute with six companies that supply catering and auxiliary services to offshore oil and gas rigs in the North Sea, after the employers withdrew the 2015-16 pay award, agreed and accepted as part of a two year pay deal. Whilst the union was successful in defending the legal action previously, our legal advice and experience of the law in practice means we are having to try to provide details of the member workplaces, when there are more than 250 rigs, platforms and floating hotels and members move from one to another. Understandably the members, officials and staff are extremely frustrated. 17. We return now to Sajid Javid’s remarks and make additional comments that, although it has not been seen to take place in the context of union workplace ballots in relation to recognition, fraud can and allegedly has taken place in elections by post. There are a number of examples in relation to political elections. Sajid Javid was wrong to say that the identities of people voting in a secret ballot could be revealed. They cannot, as that information is protected by Data Protection legislation. But that fact aside, the minister’s logic would imply that the identities of people voting in a secret postal ballot could just as easily be revealed. The fact is that the union member can only reveal information, as it is their data. It is not for the government to claim to defend the identity of union members, who have the option to do so. 18. As for the Speaker’s Commission on Digital Democracy13 the Speaker said: “I set up the Digital Democracy Commission to explore how Parliament could make better use of digital technology to enhance and improve its work.” It has nothing to do with union ballots. It is actually about encouraging engagement with Parliament generally. Its key recommendation 4 is that: {By 2020} secure online voting should be available for all voters.

Concluding remarks We have referred to our submissions to the BIS consultations and provided links to those. We stand by those, subject to the developments in the evidence and conclusions from this document, including that: —— reference to “Important public services” in relation to ballot thresholds is arbitrary and too wide by reference to international law —— “support staff in ancillary roles” is confusing, unworkable and extremely wide —— requirements to opt in to political funds is partisan (mention concern around electoral role) —— proposals on picketing are unnecessary and provocative —— a state encouraged blacklist is abhorrent (Unite currently is pursuing legal action on behalf of nearly 300 blacklisted members) —— the new role for the Certification Officer imposes excessive interference and cost. In the Unite response to BIS in relation to picketing we referred to the need for alternative, more progressive reforms to help working people, society and the economy.14 We believe that our evidence here demonstrates that the time for workplace ballots is here. October 2015

APPENDIX 1

ANALYSIS OF CAC COMBINATION & WORKPLACE BALLOTS

Background Between 2000 and 2014 there were 862 applications for trade union recognition, of these 209 went to a ballot of the workforce. There were 63 CAC Ballots that were conducted at the workplace (including Combination Ballots).

13 The Speaker’s Commission on Digital Democracy is here: http://www.parliament.uk/business/commons/the-speaker/speakers- commission-on-digital-democracy/ 14 See for example, this IMF research paper http://www.newunionism.net/library/internationalism/World%20Bank%20-%20 Unions%20and%20Collective%20Bargaining%20-%20Economic%20Effects%20-%202002.pdf 16 Trade Union Bill: Written evidence

Return Rates at Workplaces with 50 or more workers —— All workplaces with bargaining units of more than 50 workers in both forms of ballot recorded a Return rate of more than 52%. —— The GPMU & Ritrama UK Limited ballot of 53 workers was the only ballot at the workplace to record a 100% return rate. —— The mean average return rate in Workplace Ballots (including Combination Ballots) was 88%.

Table 1: Workplace Ballots (including Combination) with more than 50 Workers with a Return Rate of more than 85% —— 93.75 % of relevant Workplace Ballots (including Combination) had a return rate of more than 90%. —— The mean average number of workers that could vote in relevant Workplace Ballots (including Combination) was 214. —— All relevant Workplace Ballots (including Combination) had a return rate of over 87%.

Workers Ballot Eligible to Papers % Return Case Date Vote Returned Rate ISTC & Mission Foods 24-Nov-03 168 151 90% GMB & Bisley Office Equipment 29-May-07 454 410 90% TGWU & Porvair Technology 19-Nov-03 70 64 91% ISTC & Brian Hewitt Construction Ltd 04-Feb-04 92 84 91% Unite the Union & London and North Western Railway Co. Ltd 12-Jun-09 99 90 91%

AMICUS & South Marston Distribution Centre Limited 22-Sep-04 411 375 91% TGWU & Cytec Engineered Materials Ltd. 03-Oct-02 51 47 92% AMICUS & Teconnex Limited 20-Apr-04 90 83 92% The Amalgamated Union (formerly known as T&GWU) & Harrods 08-May-07 150 139 93% Unite the Union & Tuilp (Coalville) Ltd 06-Feb-09 154 143 93% GMB & Bisley Office Furniture 05-Dec-03 457 424 93% GMB & Nuaire Limited 19-Jun-13 207 196 94% AMICUS & GE Thermometrics (UK) Limited 30-Jul-04 102 97 95% RMT & JW Filshill Ltd 27-Jul-15 111 105 95% Unite the Union & Gillette UK Ltd 17-Jul-09 138 131 95% GMB & Gleason Works Ltd 11-Feb-05 246 235 95% Unite the Union & Kettle Foods Ltd 11-Oct-07 318 301 95% AMICUS & GE Caledonian Limited 28-May-02 730 694 95% ISTC & Hanmere Polythene Ltd 11-Dec-03 70 67 96% AMICUS & X-FAB UK Limited 02-Nov-06 173 167 96% TGWU & Nacam UK Ltd 09-Jul-02 161 157 97% AMICUS & Baker Oil Tools 13-Oct-05 186 181 97% GMB & Caunton Engineering 21-Mar-05 60 59 98% Unite the Union & Johnson Security Limited 20-Sep-10 69 67 98% CATU & Industrial Agricultural Engineers 05-Nov-04 112 110 98% Unite the Union & GE Caledonian Limited 01-Jun-12 752 736 98% AEEU & Honeywell Garrett Engine Boosting Systems 12-Oct-01 90 89 99% TGWU & International Radiators * 30-Jan-03 102 89 87% RMT & Epsom Coaches* 23-Oct-14 277 244 88% AEEU & Huntleigh Healthcare Limited* 17-May-01 172 157 91% Trade Union Bill: Written evidence 17

BFAWU & Seabrook Potato Crisps Ltd* 23-Nov-01 239 218 91% GMB & Magna Kansei Ltd* 27-Mar-06 353 333 95% *Workplace Only Ballots

Table 2: Workplace Ballots (including Combination) With 50 or More Workers in Order of Return Rate

Workers Eligible to Ballot Papers % Return Case Date Vote Returned Rate GPMU & DSR Ltd 26-Apr-02 69 36 52% TGWU & REST ASSURED LIMITED 17-Oct-02 212 130 61% TGWU & Armchair Passenger Transport Co 13-Feb-04 260 173 66% Ltd. TGWU & NIC HYGIENE SPECIALISTS 12-Feb-03 50 34 68% Unite the Union & National Car Parks Limited 10-Mar-09 60 43 71% Unite the Union & Sports Direct International 05-Sep-08 486 358 74% PLC GMB & ASDA 25-Aug-04 575 435 75% GMB & The Video Duplicating Company Ltd 26-Mar-03 170 129 76% TGWU & Hozelock Limited 17-Aug-01 266 201 76% TGWU & Riverstone Spinning Ltd 28-Feb-02 196 153 78% AEEU & Honda of the UK Manufacturing 10-Dec-01 4045 3140 78% Limited ISTC & Cornelius Electronics Ltd 13-Sep-02 131 103 79% TGWU & KING ASIA FOODS LTD 03-May-02 154 125 81% GMB & Madame Tussauds 07-Apr-04 139 115 83% TGWU & Comet Group plc 14-Aug-06 55 47 85% GMB & Washington Metal Works 15-Jul-15 155 132 85% Unite the Union & Cranberry Foods Ltd 15-Sep-10 289 245 85% TGWU & DuBois Limited 21-Feb-03 140 120 86% GMB & Dart Products LTd 06-Sep-06 137 121 88% TGWU & Plane Handling Limited 02-May-03 586 517 88% TGWU & TVR Engineering Ltd 22-Feb-05 272 242 89% GMB & Walkers Snack Foods Ltd 13-Dec-10 353 315 89% Unite the Union & Walkers Snack Foods Ltd 14-Aug-13 490 438 89% ISTC & Mission Foods 24-Nov-03 168 151 90% GMB & Bisley Office Equipment 29-May-07 454 410 90% TGWU & Porvair Technology 19-Nov-03 70 64 91% ISTC & Brian Hewitt Construction Ltd 04-Feb-04 92 84 91% Unite the Union & London and North Western 12-Jun-09 99 90 91% Railway Co. Ltd

AMICUS & South Marston Distribution Centre 22-Sep-04 411 375 91% Limited TGWU & Cytec Engineered Materials Ltd. 03-Oct-02 51 47 92% AMICUS & Teconnex Limited 20-Apr-04 90 83 92% The Amalgamated Union (formerly known as 08-May-07 150 139 93% T&GWU) & Harrods Unite the Union & Tuilp (Coalville) Ltd 06-Feb-09 154 143 93% 18 Trade Union Bill: Written evidence

GMB & Bisley Office Furniture 05-Dec-03 457 424 93% GMB & Nuaire Limited 19-Jun-13 207 196 94% AMICUS & GE Thermometrics (UK) Limited 30-Jul-04 102 97 95% RMT & JW Filshill Ltd 27-Jul-15 111 105 95% Unite the Union & Gillette UK Ltd 17-Jul-09 138 131 95% GMB & Gleason Works Ltd 11-Feb-05 246 235 95% Unite the Union & Kettle Foods Ltd 11-Oct-07 318 301 95% AMICUS & GE Caledonian Limited 28-May-02 730 694 95% ISTC & Hanmere Polythene Ltd 11-Dec-03 70 67 96% AMICUS & X-FAB UK Limited 02-Nov-06 173 167 96% TGWU & Nacam UK Ltd 09-Jul-02 161 157 97% AMICUS & Baker Oil Tools 13-Oct-05 186 181 97% GMB & Caunton Engineering 21-Mar-05 60 59 98% Unite the Union & Johnson Security Limited 20-Sep-10 69 67 98% CATU & Industrial Agricultural Engineers 05-Nov-04 112 110 98% Unite the Union & GE Caledonian Limited 01-Jun-12 752 736 98% AEEU & Honeywell Garrett Engine Boosting 12-Oct-01 90 89 99% Systems GPMU & Ritrama UK Limited 10-Oct-02 53 53 100% TGWU & International Radiators * 30-Jan-03 102 89 87% RMT & Epsom Coaches* 23-Oct-14 277 244 88% AEEU & Huntleigh Healthcare Limited* 17-May-01 172 157 91% BFAWU & Seabrook Potato Crisps Ltd* 23-Nov-01 239 218 91% GMB & Magna Kansei Ltd* 27-Mar-06 353 333 95% *Workplace Only Ballots

APPENDIX 2

On “Intimidation of non-striking workers”: https://apps.groupdocs.com/document-viewer/Embed/6f1952a7227da11ecb09b8ad43c44e6d2f5398a 4a0d1e318ea4c3a85e97e1112?quality=50&use_pdf=False&download=False&print=False&signature=Lgmnv 9CWt09XjzjybRZCSYQApnY

On Ballot thresholds in important public services: https://apps.groupdocs.com/document-viewer/Embed/0bfde45849582920365f0ddbb4eab556a3ffb 9a0165e64cde1a6f0e1ee5b2070?quality=50&use_pdf=False&download=True&print=False&signature= 6omSUkJiA4XSu%2Btnls2ScvIxHKQ

Written evidence submitted by the Royal College of Midwives (TUB 07)

Executive Summary The Royal College of Midwives (RCM) welcomes the opportunity to submit evidence to the Public Bill Committee about the Trade Union Bill. The RCM is the trade union and professional organisation that represents the vast majority of practising midwives and maternity support workers in the UK. The RCM is the voice of midwifery, providing excellence in representation, professional leadership, education and influence for and on behalf of midwives. We actively support and campaign for improvements to maternity services and provide professional leadership for one of the most established clinical disciplines. The RCM is profoundly concerned that measures set out in the Trade Union Bill will unjustifiably restrict the right to strike in the UK. This will undermine workers’ ability to organise collectively to protect their jobs, their Trade Union Bill: Written evidence 19

livelihoods and the quality of their working conditions. Protecting working conditions is important because midwives’ and maternity support workers’ working conditions are women’s birthing conditions. The right to strike is a fundamental human right which is protected by an array of international treaties and human rights standards, including ILO Conventions, the UN Covenant on Social and Economic Rights, the European Social Charter (1961) and the European Convention on Human Rights. We would like to concentrate our evidence on: —— the proposals to remove the ban on employing agency workers; —— the proposals around picketing; and —— the impact on partnership working and employment relations in the NHS.

Agency Workers The RCM is firmly opposed to this proposal which will permit employers to use agency workers to undermine the effectiveness of industrial action or even to break strikes. Our key concerns are: —— We do not agree that there is a necessity to hire agency staff to cover the duties of striking workers. During the RCM’s industrial action in 2014-15 we provided extensive guidance to our Workplace Representatives to make contingency plans to ensure safe and essential services could still go ahead. Our Workplace Representatives granted exemptions so that RCM members could provide those services based on three fundamental priorities: —— safety for women and babies must be ensured; —— a women’s choice of birthplace must be ensured; and —— RCM midwife members should not break their NMC Code of Conduct. We made it crystal clear that our dispute was with employers, not with the women and babies we care for. Therefore, we feel the removal of this ban is completely unnecessary. —— If the Government were to remove the ban it would make it very difficult for the RCM to put in place contingency arrangements as we did in 2014/15. This would cause far more uncertainty about the cover during the strike period as the employers would not be guaranteed of how many agency workers they would be able to get to work and couldn’t be certain that those agency workers would be willing to cross the picket lines. Employers would be in a far safer and certain position if services were agreed with us and the ban on employing agency workers was left in place. —— We believe that the removal of the ban could impact on patient safety by employing agency workers unfamiliar with local procedures. Many NHS trusts do not use agency staff regularly and instead ask their existing staff to work extra hours on overtime or using the trust bank. If employers were allowed to use agency staff who were unfamiliar with local procedures and facilities this could fundamentally impact on patient safety and care. —— The Government’s stated intention is to limit the disruption felt by the public. However, we believe that members of the public would be concerned about the impact on patient safety. —— We want to impress on the Government the seriousness of ensuring safe staffing in the NHS and they could be in the position that they do not have enough agency midwives to cover safe services. There are the recommendations and procedures outlined in the NICE safe staffing guideline ‘Safe Midwifery Staffing for Maternity Settings’ to ensure that women and babies receive safe, effective and high quality care. We would also remind the Government that legally only a registered midwife (or doctor) can attend to a woman in labour. We are concerned that the Government is grossly overestimating the numbers of agency midwives that would be available and we urge them to rethink the removal of the ban and rather use the RCM’s contingency arrangements to ensure essential services can be delivered safely. —— We understand that the majority of midwives who work as agency midwives do so in addition to their permanent employment. We believe this would mean there would not be enough agency midwives to cover the duties of striking workers as the majority of agency midwives would be on strike themselves. —— We are concerned that if this could fundamentally damage the working relationship between agency midwives and permanent midwives. We conducted a survey and midwives said they would not be happy to work under these conditions because they would feel they were betraying their fellow midwives. In particular, they raised concerns about how this would damage relationships in the long term following the dispute. —— Furthermore, we have concerns that under UK law agency workers are not protected from suffering a detriment if they refuse an assignment because they do not wish to replace striking workers. It is not clear whether permanently employed midwives who also work agency shifts could be pressurised by the employment agency to go to work even though they had voted in support of industrial action. There could be the absurd scenario of a midwife working an agency shift to cover their own duties while they’re on strike. 20 Trade Union Bill: Written evidence

—— Employers are likely to incur significant additional costs as a result of deciding to hire agency workers during industrial action, for example agency fees. In our survey of midwives the cost of agency staffing was raised on numerous occasions, in particular it was seen as hypocritical in light of the Government’s new cap on the use of agency nurses and midwives in the NHS. —— The ban on the supply of agency workers during industrial action has been in place since 1973. A succession of previous Governments has recognised that the ban forms an important part of the industrial relations landscape in the UK. The Government have failed to demonstrate why the removal of the ban is now necessary or justified. Indeed, the approach has been roundly criticised by the Regulatory Policy Committee (RPC). The RPC found that the BIS impact assessment was not fit for purpose and ‘considers that the case for the central assumption has not been made and that it is not a robust basis for assessing the costs, and in particular, the benefit of the proposal.’15 —— Indeed, it is not just Trade Unions who have grave concerns about the use of agency workers. The Recruitment Employment Confederation (REC) has also recognised that the Government’s proposals are likely to have detrimental effects for employment businesses. During July/August 2015 we carried out a survey of our members who work as agency midwives. Our research found: —— 73% of respondents worked agency shifts in addition to being permanently employed as a midwife. —— 66% of respondents said they would not be willing to carry out the duties of a striking worker. In our survey we asked midwives the reasons why they wouldn’t work an agency shift to cover the duties of a striking worker and they said: “I would feel that I was betraying my work colleagues/profession” “I would feel very guilty and disrespectful of my colleagues. It would also negate their actions, making a strike less effective.” “I would not do this. Striking is a last resort and needs to be kept as a tool to show Government we are serious about an issue. If agency workers cover the strike there is no impact of the strike.” “I feel that all midwives need to stand united to be heard and if agency workers cover shifts during strikes then it takes away the power of the strike and doesn’t put pressure on management to listen to their workforce’s grievances.” “No. The reasons for striking would be the same reasons as myself so it would be counter productive to cover for striking midwives, as ultimately they are striking for better and safer working conditions which is what we all want.” “Like I was betraying the other midwives. The unit I work in generally uses the same midwives. We are all friendly and work together on regular basis. This would make it feel like a betrayal. There is no segregation of agency staff and contracted staff usually.” In our survey many midwives noted their concerns about patient safety: “Under the previous industrial action, our wards were sufficiently staffed to ensure safe care for women and their babies. I would be concerned that use of agency staff unfamiliar with trust policies and guidelines would put women and babies at risk.” “This makes me angry as it belittles those who are striking in the first place; the strike won’t mean much if the work can be easily covered by agency staff. I think it is also potentially dangerous covering shifts with agency staff during a strike as they may outnumber the permanent more experienced staff leaving themselves and the women open to omissions in care.” “It would be unfair as agency staff are highly paid and I’m sure there would not be enough of them to cover the service anyway. It would also be unsafe for woman as our unit does not usually employ agency midwives, so they would not be familiar with any local issues/facilities.” In our survey many midwives noted concerns about the cost of using agency workers as opposed to making contingency plans with the RCM: “I feel it shows that the Government does not understand how much agency workers cost! Arrangements were made that ensured patient safety was not compromised, and even during the strike, the system ran on goodwill. Agency workers covering the service shows that the Government does not care about our voice and what we are trying to say.” “I think it would be extremely hypocritical of the government to endorse or even encourage trusts to use expensive agency staff to cover industrial action when they have criticised the use of such workers.”

15 Regulatory Policy Committee: Hiring agency staff during striker action: reforming regulation. Date of issue: 18 August 2015. Available at: https://www.gov.uk/government/collections/red-rated-impact-assessment-opinions-since-may-2015 Trade Union Bill: Written evidence 21

In our survey many midwives said that using agency workers undermines their right to strike: “It completely undermines our right to strike… Striking would have no impact what so ever so what would be the point? We do not want to strike on a regular basis we want fair negotiations.” “Most of our managers and senior managers are also members of a union so I would imagine there would be a strong sense of conflict. Our trust very rarely uses agency workers but I would feel insulted if they were used for this purpose.” Therefore, the RCM believes the Public Bill Committee should reconsider the removal of the ban on employing agency workers.

Picketing The RCM is firmly opposed to the proposals relating to picketing as they are unnecessary, unjustified and disproportionate. We do not recognise that there has been intimidation of non-striking workers and was certainly not the experience of our members on our picket lines when we took industrial action in 2014-15. Our key concerns are: —— The right to picket and is a fundamental human right which is safeguarded by ILO Convention 87 (Article 3), the European Social Charter (Article 6(4)) and the European Convention on Human Rights (Articles 10, 11 and 14). Pickets and protests enable trade unions and their members to communicate the reasons and purposes of industrial action publicly, peacefully to persuade employees and substitute workers to support the industrial action and to mobilise support for their campaigns. —— Our picket lines were peaceful and supported by the public. There is no evidence to support strengthening the laws on picketing and protest as there is no evidence that picket lines are anything but peaceful. The Carr Review16 in 2014 found that the current legislation on picketing is fit for purpose and the RPC17 concluded that not only is there no evidence on which to base the proposals in the Trade Union Bill but there is also no discernable benefit to be derived from the proposal. —— During our pay dispute in 2014-15 we commissioned ComRes to conduct a poll of members of the public and 80% of the British public supported giving NHS staff the 1% pay rise that was recommended by the Pay Review Body and that we were campaigning for. Additionally, 63% of British adults supported midwives taking industrial action, provided arrangements were made to ensure that any pregnant woman in need of immediate care continues to receive it during any action, which we did with our contingency plans. —— We would like to caution the Government against giving the impression that they are trying to prevent workers from raising workplace concerns, in particular public sector workers. We are very alarmed by the extreme nature of the proposals in the consultation documents as they are complicated and wholly disproportionate. We believe the intention is to frighten and confuse midwives from exercising their right to protest for fear that they will make a simple mistake and be prosecuted. It is a fundamental right that workers should be able to peacefully protest and these proposals are an attack on civil liberties and are wholly disproportionate and unnecessary. We conducted a survey of members about their views of taking industrial action and many members commented on the level of support they received from the public on the picket lines: “The atmosphere on the picket line was up beat, we were all overwhelmed by the extent of the support from the public.” “A joyful gathering, not a display of aggression, more of a sisterly event supporting one another.” “Very good, there were retired staff came along to support us and someone brought us food. Lots of drivers going past were hooting their horns in support.” “Very good. We had the biggest representation including babies and a dog! The public drove past and gave us food and also beeped their horns for us.” “We were strident but it was cheerful and sociable. We were on a busy road and it was tremendously uplifting to see the support we got from the public.” “We received an enormous amount of public support, especially from women, families, medical staff and other healthcare professionals. The picket line had a large turn out and people stood for the entire duration of the strike. The atmosphere was very united and encouraging, we all left feeling very positive and optimistic about the future.” “Full of energy, determination, pride and respect for each other to be finally standing up for ourselves... But the best feeling came from the support of the public we serve every day; bringing us hot drinks, hooting their horns, waving and the words of encouragement they gave.”

16 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/363806/Carr_Review_Report.pdf 17 https://www.gov.uk/government/publications/regulatory-policy-committee-opinions-issued-since-may-2015 22 Trade Union Bill: Written evidence

Our experience is that picket lines were peaceful and well supported therefore we believe the Government’s proposals are unnecessary, unjustified and disproportionate.

Partnership Working and Employment Relations We believe the Government’s proposals will fundamentally damage employment relations and make it more difficult to resolve disputes. Industrial action is a symptom of poor employment relations not the cause. Industrial action is a last resort for trade unions; it certainly was for the RCM with our first period of industrial action taking place in 2014, which was the first time in our 134 year history. The Government should not underestimate the gravity of the union’s decision to ballot their members for industrial action and the seriousness of the member’s decision to vote for and take industrial action. Allowing employers to undermine industrial action will only further damage the employment relationship. In our survey of members we asked about how they felt about voting for, and taking, industrial action for the first time: “Because I feel the Government are not listening to concerns. Midwives work long hours in sometimes very stressful and emotionally demanding circumstances. I am not a greedy person but feel a fair wage, in line with inflation, is the least midwives deserve in recognition of their work.” “As I felt that the Government was not acting in a fair way.. The time had come to show that we would not be walked over any longer.” “It was a last resort. The Government had pushed us so far and was so unwilling to listen that it was the only option left for us to make our voices heard. It is not just us that suffers from the constant put downs, and feelings of worthlessness that Government is trying to promote amongst us. When we feel so overtired, overworked, underpaid and disrespected, the patients see it too, however hard we try to hide it.” “We appeared to have no alternative as no-one ever listens. I have been in the health service over 30 years and I would never have contemplated industrial action in the past but with ever increasing workloads… I felt that it was right.” Traditionally in the NHS trade unions, employers and the Government have enjoyed good partnership working and good employment relations. These proposals will fundamentally damage that partnership working. Government should be working to improve employment relations and helping both sides resolve disputes rather than profoundly shifting the power balance and allowing one side to steamroller across the other.

Conclusion The RCM is profoundly concerned that measures set out in the Trade Union Bill will unjustifiably restrict the right to strike in the UK. This will undermine workers’ ability to organise collectively to protect their jobs, their livelihoods and the quality of their working conditions. Protecting working conditions is important because midwives’ and maternity support workers’ working conditions are women’s birthing conditions. We believe that in the event of industrial action (which is very rare in the NHS and always a last resort) the public would be far happier with the arrangements that we put into place during our industrial action in 2014-15. We provided extensive guidance to our Workplace Representatives to make contingency plans to ensure safe and essential services could still go ahead. Our Workplace Representatives granted exemptions so that RCM members could provide those services based on three fundamental priorities: safety for women and babies must be ensured; a women’s choice of birthplace must be ensured; and RCM midwife members should not break their NMC Code of Conduct. We made it crystal clear that our dispute was with employers, not with the women and babies we care for. Therefore, we feel the removal of the ban on employing agency workers is completely unnecessary and in fact could have implications for safety. We believe that the public would benefit far more if the Government was working to improve employment relations and helping both sides resolve industrial disputes rather than profoundly shifting the power balance and allowing one side to steamroller across the other. October 2015

Written evidence submitted by the Welsh Local Government Association (WLGA) (TUB 08) 1. I am writing on behalf of the WLGA to submit evidence on the Trades Union Bill. The Welsh Local Government Association (WLGA) represents the 22 local authorities in Wales. The three national park authorities and three fire and rescue authorities are associate members. 2. The WLGA seeks to provide representation to local authorities within an emerging policy framework that satisfies the key priorities of our members and delivers a broad range of services that add value to Welsh Local Government and the communities they serve. Trade Union Bill: Written evidence 23

3. The WLGA Council, comprised of the senior Welsh local authority political Leaders considered a report on the Trades Union Bill at its recent meeting on 25th September 2015 and determined to oppose the Bill. Our decision to do so was based on our many years of experience of generally good industrial relations in public services, including those defined as ‘important public services’ within the Bill. We have a long and shared history of working effectively in partnership with our trades unions and a commitment to joint working and joint solutions as being the most effective means of addressing the many challenges within the sector. 4. We have very real concerns that these unnecessary and unjustified proposals, rather than in any way modernising or otherwise improving employee relations as claimed, would in fact create more division and industrial unrest through hardening attitudes and increasing tension between employers and trades unions. 5. In terms of the stated aim of ‘protecting the public’ from the disruption of strike action the actual reality of the modern work place is that the number of days lost to strike action has dropped by over 90% in the last 20 years with action increasingly taking the form of protest action rather than all-out strikes. In terms of local government the sector has delivered a number of years of pay freeze and below-inflation pay rises in recent years with very little industrial unrest or disruption to the public. In view of these facts it is hard to see how the legislation on ballot thresholds can be considered necessary or warranted. 6. With regard to facility time, our experience is that appropriate facility time is vitally necessary for the efficient functioning of a local authority. Change is a constant within local government and there is a need to ensure that the workforce are consulted about and kept abreast of changes affecting them and the way services are delivered. Employees must be afforded the opportunity to participate in the development of solutions to the difficult funding problems that we face. If councils had to consult with and negotiate with employees on an individual basis on all these matters the time resource required would be huge. Facility time enables councils to consult and negotiate with the trades unions officials representing the workforce, and therefore actually saves considerable time and resources. It is therefore essential in our view, and very much in the interests of council tax payers to see it maintained. 7. We also see no reason to outlaw the ‘check off’ system which is not considered problematic by local authorities, and indeed is part of our social partnership approach. The view has been promulgated that this is a ‘huge expense to the tax payer’ but again the facts do not bear this out. In our experience there are already arrangements in place in some authorities where the trades unions are paying for the administrative costs of the system. With the continuing budget cuts more are considering introducing appropriate charges. The trades unions in our experience fully understand that financial difficulties and this is not viewed as problematic. Mandating an appropriate charge would be a reasonable approach but seeking to ban the system is entirely unnecessary and again, unwarranted in our view. 8. We agree that the intimidation of non-striking workers in the course of industrial disputes is completely unacceptable. However, again in our experience this is extremely rare, and if it were to occur there are already sufficient legal and other safeguards in place to deal with it effectively. There is no need to create an additional new criminal offence. There are already a number of existing public order offences, including assault, harassment and trespass which can be used where necessary. Within the local authority we would regard any intimidation of non-striking workers as a serious disciplinary matter and would not hesitate to take action. However it is rare that any issues arise and on the very few occasions of a strike, picketing and other activity is generally peaceful and good-humoured. The unions themselves recognise perfectly well that anything less than appropriate behaviour by one of their number is likely to lose them employee and public support. 9. Finally we do not support repealing the ban on using agency workers to cover for striking employees. Even when we are in dispute with our trades unions we work together to ensure that there are sufficient employees exempted from striking to provide suitable cover for essential services. It is unlikely in any case that we would be able to recruit sufficient suitably qualified and trained agency workers to maintain operations effectively during industrial action. However, hiring such workers as might be available would be very likely to lead to much harder attitudes to essential cover by the trades unions and thus to far greater difficulties in this regard than are currently experienced. We would also question whether Employment Agencies would wish to place people in the position of replacing striking employees or if agency workers themselves would much relish such an assignment. Indeed, we understand that Recruitment and Employment Confederation (REC), the professional body for recruitment, has said in relation to this of the Bill that they are “not convinced that putting agencies and temporary workers in to the middle of difficult industrial relations situations is a good idea for agencies, workers or their clients.” (Kate Shoesmith REC Head of Policy in a recent interview with the BBC). 10. In summary then, we believe that the provisions of this Bill are unnecessary and are likely to be counter-productive in practice. We believe the government should instead focus on positive ways to develop an efficient, engaged and productive public sector workforce and promote a culture of more consultation and ongoing dialogue and engagement with the workforce rather than seek to introduce mechanisms that reflect the industrial relations challenges of a bygone era. Cllr. Bob Wellington Leader of the WLGA October 2015 24 Trade Union Bill: Written evidence

Written evidence submitted by Leeds City Council (TUB 09)

Summary The Trade Union Bill 2015-16 provisions proposed by the Government represent a fundamental change to the way Trade Unions will function in the United Kingdom, inevitably having a significant impact on relations between Leeds City Council and its approximately 15,000 employees, with 12,600 full time equivalents (FTE). Industrial relations between the Council and employees particularly since 2010 have been productive, highlighting a strong working relationship even with the need to generate unprecedented savings. The importance of maintaining key communications with Trade Union members has not only enabled this Council to manage budget reductions, but to also agree successful results such as the Early Leavers Initiative (ELI) reducing headcount by more than 2000 and adopting a flexibility protocol where employees are redeployed in other areas of the Council avoiding compulsory redundancies. The proposals to raise the ballot threshold will risk shifting the emphasis of Trade Union activity towards securing a mandate for formal strike action rather than engagement with the employer. Furthermore, the necessity for this Bill to be implemented is challenged when the evidence from 2010, highlights the frequency of industrial action taken by trade union members is uncommon. Moreover, when this is ascribed to local level disputes, the numbers reduce even further. The experience of Leeds City Council and its relationships with Trade Unions has been pivotal to ensure communication with our employees remains strong and importantly productive. The Government’s proposals put at risk the continuation of positive industrial relations, creating uncertainty and from our recent experience the effects of this change could be counterproductive.

Introduction 1.0 Leeds City Council is the second largest of the 36 metropolitan district councils in in terms of both population and geographical area. The council is responsible for all local authority services within its boundaries. The estimated population of Leeds is 775,666, with more than 170 languages spoken in the city. The Council’s gross spend (including Revenue and Capital) is £2.5bn annually. 1.1 Leeds City Council values are at the heart of everything we do. They inform the way we design and deliver our services and the way we all work and behave. The values are: Working as a team for Leeds, Being open, honest and trusted, Working with communities, Treating people fairly and Spending money wisely.

Industrial Relations 2.0 Industrial relations with Trade Unions and Leeds City Council (LCC) have achieved successful results, throughout the process of negotiation and consultation, where communication has become pivotal to ensure both the Council and trade unions work closely together to maintain services and avoid compulsory redundancies, whilst responding to the Governments spending reductions. Strong communications have ensured we have reached positive results such as the following: —— Early Leavers Initiative (ELI) – This scheme was introduced to enable staff to leave the council on a voluntary basis where there was a need to reduce numbers in the interest of efficiency through an enhanced severance scheme. Currently, 2,100 people having left on ELI since 2010. —— Collective agreement to achieve savings on terms and conditions e.g. pay protection, expense claims and increasing flexibility, achieving savings around £15m. —— LCC provides key job finding support and exclusive access to internal vacancies to staff that are potentially at risk of losing their job, this is according to skills, pay and personal interest staffs are matched to vacancies. One example of this is the Talent Pool, affecting typically around 150 people, the majority of which are seeking new work as a precautionary move ahead of planned reductions. Furthermore, a smaller group of staff are supported more intensively as they have been given notice of redundancy. By matching people to jobs LCC has had less than 20 enforced redundancies over the last five years, holding the basic objective to find work for people who want to continue their employment. Central to the success of this approach has been cooperation trade unions, ensuring that decisions are on a trusting basis. 2.1 There has been limited disruption to services with regards to industrial action. Furthermore, industrial action has stemmed from primarily national disputes, with local disputes holding a very small number of people participating in formal action since 2010.

LCC Industrial action since 2010 3.0 The table referred to in Annex 1 demonstrates the number of industrial action since 2010 taken by Leeds City Council staff, accounting for six nationally and one local. Six national level industrial actions have taken place since 2010, regarding various issues including pension charges and pay and conditions. Trade Union Bill: Written evidence 25

3.1 The Parks and Countryside service strike action in 2014, demonstrated the only case of local industrial action at a local service level. However, this only was represented by four people participating in formal strike action.

3.2 The level of strike action activity is clearly extremely low and further demonstrates the strength in communication between the Council and its employees, avoiding mass industrial action, causing little service disruption.

Collective Agreements 4.0 Collective agreements both on a council wide basis and local service level have been made with our trade union colleagues over the years avoiding the need for industrial action. These have predominantly been around changes to terms and conditions of employment.

4.1 To achieve savings some of the changes collectively agreed include the closure of services with no or low demand over the Christmas/New Year period, reduction then removal of protected pay, changes to the Managing Workforce Change process, introduction of Managing Staff Reductions policy, changes to essential car user allowance/rates and the introduction of HMRC mileage rates for casual car users.

4.2 Since the first comprehensive spending review in 2010, we have achieved at least 5 council wide collective agreements with additional collective agreements at local service level, all through good work relations with our recognised trade unions which has also lead to a number of averted industrial action.

Deductions of Union membership fees by LCC 5.0 Salary deductions such as paying Council Tax, Give as you earn, Credit Unions and health care schemes are a very low cost being a convenience benefit for employees at LCC. The option to pay trade union fees should be seen in the same light. In Leeds we estimate that this costs under £5,000 per year; a negligible 41 pence per year per trade union member. Therefore, in order to achieve better employee relations, the Council will seek to continue salary deductions for trade union subscriptions as it recognises trade unions and sees a benefit to negotiating, consulting and communicating with trade unions.

October 2015

Annex 1

INDUSTRIAL ACTION SINCE 2010 *This information is a quick overview and has not been sourced extensively due to the timeframe available. All instances of industrial action in the first table have been due to national issues outside the control of the LCC.

Year National Level Issue/subject Strike y/n 2011 Nov 30 yes Pension changes yes 2012 Sept Pay & Conditions yes 2013 – October, 1 * Yes Teacher pay, terms and yes conditions and pensions provisions 2014, July 10 yes Pension changes yes 2014 – October yes Pension changes cancelled 2012/15 * Yes Teachers pay, terms and No – action short of conditions and pensions strike action provisions Schools industrial action not exhaustive

Year Local Service Level Issue/subject Strike y/n 2014 yes Parks and Countryside Yes – intermittent into service – Technicians – 2015 Support of a colleague 26 Trade Union Bill: Written evidence

Written evidence submitted by the (TUC) (TUB 10)

Introduction The Trades Union Congress (TUC) has 52 affiliated trade unions, representing nearly 6 million members who work in a wide variety of industries and occupations across the public and private sectors. While its use is always a last resort, the right to strike is a fundamental human right and a hallmark of any free and democratic society. It is safeguarded by a wide range of international treaties, including ILO Conventions, the European Social Charter (1961) and the European Convention on Human Rights. The TUC is profoundly concerned that the right to strike is under threat from proposals in the Trade Union Bill. The government is introducing thresholds for industrial action ballots, whilst denying modernisation of balloting methods which would increase participation. The right to strike will also be undermined by the proposed removal of the ban on the use of agency staff during strikes. The Bill will lead to a serious imbalance of power in the workplace. It is designed to weaken workers’ bargaining power. Strike action is the deterrent of last resort against employers who act unreasonably and exploit their staff and who otherwise would not enter into negotiations and make fair agreements on jobs, pay and conditions. The government is also proposing tighter restrictions on picketing activities, even though pickets are amongst the most regulated individuals in the UK. Human rights groups, lawyers and politicians have roundly criticised the government’s picketing proposals as a major attack on the civil liberties of working people. The government is taking powers to restrict the ability of unions to represent their members effectively in the workplace by limiting the amount of ‘facility time’ available to workplace reps in the public sector. The introduction of employment tribunal fees means that ordinary working people no longer have recourse to the law to protect their rights at work. Now the government is seeking to prevent working people from relying on trade unions to protect their interests in the workplace. The Bill will impose extensive new red tape on unions. The remit and powers of the Certification Officer (CO) will also be substantially extended. Unions will be expected to pay for the existing and addition regulation through a new levy which will cover the costs of the CO. The TUC is concerned that the government is proposing wide-ranging legislation without proper consultation. BIS consultations on the Bill proposals lasted for just 8 weeks over the summer. This is not consistent with the government’s consultation principles.18 The government has also failed to substantiate the need for far- reaching restrictions on trade unions and their members. To date the government has failed to publish a full impact assessment of all the measures in the Bill. Whilst impact assessments have been published relating to the balloting thresholds, restrictions on pickets and protests and the proposed removal of the ban on the use of agency workers during strikes, these have been roundly criticised by the Regulatory Policy Committee as ‘not fit for purpose’ conclusions.

Threatening the right to strike The TUC is firmly opposed to these proposals which create new legal hurdles for unions seeking to organise lawful industrial action. Clauses 2 and 3 would introduce arbitrary thresholds for industrial action ballots, making it far more difficult for millions of working people to organise collectively in defence of their jobs, their livelihoods and the quality of their working lives. We are concerned that the thresholds are discriminatory and will particularly disadvantage public sector staff. The right to strike is a fundamental human right which should be enjoyed equally by all working people, regardless of their job or function or whether they work in the public or private sector. Women will also be disproportionately affected by the proposed thresholds. Nearly three quarters (73 per cent) of the trade union members working in ‘important public services’ are women. The introduction of thresholds will damage constructive employment relations. Unionised workplaces tend to be safer. They are more likely to have enhanced family friendly policies,19 and to invest in skills and training than non-unionised workplaces.20 Unionised workplaces are also well-positioned to innovate and respond to changing economic conditions. The BIS-commissioned Macleod Report,21 endorsed by Prime Minister David Cameron,22 encouraged managers to listen to the concerns of employees and their representatives as increased levels of employee engagement can help to deliver sustainable economic growth.

18 The government Consultation Principles are available at: https://www.gov.uk/government/uploads/system/uploads/attachment_ data/file/255180/Consultation-Principles-Oct-2013.pdf 19 BIS (2014) Fourth Worklife Balance Employer Survey, published in December 2014, BIS Research Paper No. 184, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/398557/bis-14-1027-fourth-work-life-balance-employer- survey-2013.pdf 20 Stuart, M., Valizade D., and Bessa, I. (2015) Skills and training: the union advantage: Training, union recognition and collective bargaining. Unionlearn Research paper 21, May 2015. 21 Department for Business, Innovation and Skills 2009. 22 www.gov.uk/government/news/new-task-force-for-employee-engagement Trade Union Bill: Written evidence 27

Such positive outcomes are not easily achieved. They rely on equal bargaining power between unions and employers. The ability of unions to organise lawful industrial action provides essential support for effective negotiations. It ensures that employers take the views of the workforce seriously and engage in genuine negotiations. The government claims that the 40 per cent threshold in ‘important public services’ is needed to protect the public from disruption. However, statistics published by the Office for National Statistics confirm that industrial action in the UK stands at historically low levels, with union members, on average, taking one day’s industrial action every 15 years. The level of disruption caused by industrial action is also very limited.23 The TUC is also concerned that the proposed restrictions on strikes in important public services flout international standards: —— The Employment Law Association (ELA) has warned the government against introducing thresholds to services not covered by the ILO definition of ‘essential services’. In their response to the BIS consultation on ballot thresholds,24 ELA cautioned the government ‘if the provisions are not drawn as narrowly as possible then the Government runs the risk of a challenge on the basis that the imposition of the raised thresholds infringes Article 11 of the European Convention on Human Rights. Any restrictions on the right to strike must not be greater than necessary to pursue a legitimate aim and are necessary in a democratic society.‘ —— The government’s proposals are undemocratic as they treat abstentions as no votes. The ILO has confirmed that only votes cast should be taken into account in industrial action ballots. —— According to the ILO’s Committee on Freedom of Association, it is also not legitimate for governments to restrict the right to strike on the grounds that industrial action will impair wider economic activity.25 The TUC is concerned that the Bill does not define ‘important public services’. Instead the government plans to specify which workers will be covered by 40 per cent threshold in regulations. MPs will therefore have limited opportunity to scrutinise and amend new legislation which restricts the democratic rights of millions of UK workers. The TUC calls on the government to publish draft Regulations before the Bill completes its Parliamentary stages. The TUC is concerned the government has decided to extend the 40 per cent threshold to individuals engaged in ancillary activities which support important public services. In doing so, the government appears to be attempting to restrict the rights of hundreds of thousands of workers employed in private sector services via the backdoor. The government claims to be interested in increasing workforce democracy. However, it refuses to permit union members to use secure electronic workplace voting for union statutory elections and ballots even though this change would increase participation in union democracy, particularly among younger workers. The TUC believes that the current system of postal ballots is in need of reform. We call on the government modernise balloting rules for the digital age and to permit union members to use secure online voting for union ballots and elections. Placing tighter restrictions on trade unions is likely to prolong and escalate disputes in the workplace, making them more difficult to resolve swiftly and amicably. For example: —— The introduction of ballot thresholds (Clause 2 and 3) will mean that unions will take more time in the run up to ballots, to ensure the necessary turnout. This will inevitably extend the dispute. —— The new ballot thresholds will remove the incentive on employers to seek an early resolution of a dispute. Many will decide to ‘wait to see’ if a union can meet the strike thresholds before making a revised offer. —— Where unions succeed in meeting the new high statutory thresholds, this is likely to raise members’ expectations. Unions’ negotiating positions may therefore harden, making a settlement more difficult to achieve. —— The extended 14 days’ notice (Clause 7) for industrial action will needlessly delay the start of industrial action. —— Time-limits for strike mandates (Clause 8) are likely to escalate disputes. Employers may decide to ‘sit-out’ the dispute and refuse to negotiate in the knowledge that unions will incur excessive costs if they are required to re-ballot their members after 4 months. In contrast, unions will feel forced to bring forward any planned strike days in an attempt to secure an early settlement. —— If union members feel that unions are no longer able to organise lawful industrial action, there could be a greater risk of wildcat strike action. In these cases, unions’ hands are tied as they will be expected to repudiate the action. It will therefore be more difficult for employers to get employees back to work and it is not clear who ACAS should invite into negotiations.

23 The 2011 Workplace Employment Relations Survey revealed that despite an increase in public sector strikes in 2010-11, only 3 per cent of managers reported experiencing any disruption as a result of strikes in another workplace. 24 http://www.elaweb.org.uk/resources/responses-to-consultations/ela-response-bis-consultations-ballots-essential-services 25 ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, paragraph 592 28 Trade Union Bill: Written evidence

The Bill will increase the prospect of legal challenges against unions when organising industrial action. The provisions on ballot thresholds and the requirement on unions to provide additional information on voting papers (Clause 4) are particularly ripe for litigation.

Restricting the right to picket and protest The TUC is seriously concerned the government is proposing to restrict the rights of trade unions and their members to picket and protest in defence of their jobs and economic interests. Pickets and protests enable trade unions and their members to communicate the reasons and purposes of industrial action publicly, peacefully persuade employees and substitute workers to support the industrial action and mobilise support for their campaigns. The Bill and the accompanying consultations propose significant additional restrictions on picketing activities and union protests. The TUC believes these proposals represent a serious attack on the civil liberties of working people. They will also divert scarce police resources away from tackling serious crime. Clause 9 will require unions to appoint a picket supervisor and to inform the police of the supervisor’s name and how they can be contacted. This will deter responsible individuals from volunteering to co-ordinate pickets, for fear of future victimisation. More worrying is the expectation that the police should compile and retain information about union activists. This could amount to excessive monitoring of union activities. Picket supervisors will be required to wear an armband or badge identifying them and to carry a letter of authorisation which they must show upon request to the police and to ‘anyone who reasonably asks to see it.’ This could lead to needless tensions on the picket lines. Failure to comply with these overly prescriptive requirements may also expose the union to legal action, including applications for injunctions and damages. The government is also contemplating26 requiring unions to publish picket and protest plans in advance which must detail when and where protest will take place, whether the union plans to use social media, including twitter and Facebook accounts and what they plan to set out on websites and blogs. The TUC is concerned that the campaigning activities of unions, union officials and workplace reps could be subjected to unprecedented supervision by employers, the police and other government agencies, notably the Certification Officer. Unions failing to comply with these requirements could face financial penalties of up to £20,000. The government is considering introducing new criminal offences and even the use of protection notices (previously known as ASBOs) to regulate the activities of pickets. The TUC believes that these measures represent a serious and unjustified attack on the civil liberties of trade unions and their members. The activities of union pickets are already heavily regulated. Unions and their members are subject to a range of civil and criminal laws on peaceful picketing, public order, highways protection from harassment and criminal damage. It is also a criminal offence for pickets to use violence or intimidate individuals or their families. The government’s proposals are discriminatory as they only apply to trade unions and their members but not to other civil society organisations in the UK. The TUC is concerned that the government has failed to demonstrate that additional restrictions on trade unions are necessary or justified. The absence of substantiating evidence has attracted censure from the independent Regulatory Policy Committee.27 Leading civil liberties groups – Liberty, Amnesty International and the British Institute of Human Rights also recently issued a joint statement criticising the government’s proposals: “The government’s plans to significantly restrict trade union rights – set out in the Trade Union Bill – represent a major attack on civil liberties in the UK ..... [T]he unprecedented measures in the Bill would hamper people’s basic rights to protest and shift even more power from the employee to the employer. It is hard to see the aim of this bill as anything but seeking to undermine the rights of all working people.”28 In the light of such criticism, the TUC calls on the government to reconsider its proposals.

Restricting the ability of unions to represent members at work The TUC is deeply concerned that the government is proposing to restrict the ability of unions in the public sector to represent their members effectively in the workplace by limiting the amount of time that workplace reps can spend negotiating improved pay and conditions, raising safety standards, promoting learning opportunities, and accompanying individuals in grievance and disciplinary hearings. The government plans to require all public authorities to report on the amount they invest in facility time (Clause 12). The government is also taking sweeping reserve powers which will enable Ministers to impose an arbitrary cap on so called ‘facility’ time (Clause 13). Ministers will have the ability to use secondary legislation to amend trade union rights set out in primary legislation. They will be able to interfere with contracts of employment

26 https://www.gov.uk/government/consultations/tackling-intimidation-of-non-striking-workers 27 https://www.gov.uk/government/collections/red-rated-impact-assessment-opinions-since-may-2015 28 https://www.liberty-human-rights.org.uk/news/press-releases-and-statements/trade-union-bill-represents-major-attack-civil- liberties-uk Trade Union Bill: Written evidence 29

and collective agreements even though they have been mutually agreed by public sector employers, individual employees and their union representatives. The TUC is concerned these measures will seriously interfere with the ability of the Scottish Parliament, the Welsh Assembly, and local authorities to manage devolved services and to decide how to engage with staff and their union representatives. The proposals will also undermine effective joint working between employers and unions in public services which helps to maintain and improve quality. For example, health unions have worked closely with NHS employers, through the Social Partnership Forum to agree responses to the Francis Inquiry into Mid-Staffordshire. The (FBU) also trains highly qualified Serious Accident Investigators (SAIs) who work with fire authorities to investigate where firefighters are killed on duty and to identify and implement service improvements which can prevent future fatalities. Caps on facility time could restrict the ability of FBU representatives to participate. This would further endanger firefighters and could mean any safety critical problems identified left unresolved.

Prohibition on the use of check-off On 6th August, the Government announced that it would introduce amendments to the Bill which will prevent any public sector employers from running “check off” systems to deduct union subscriptions from the payroll. The TUC is concerned the government plans to introduce this change, even though there has been no prior consultation with employers, engagement with unions or assessment of the impact on employment relations. Deductions from the payroll are a common way that employers help their employees manage their finances. Often childcare, travel, bike or computer payments are made through payroll deductions. The government claims that the legislation will save taxpayers up to £6 million. In reality in many workplaces trade unions pay employers for providing check off arrangements.

Increasing remit and powers for the Certification Officer The Bill will impose extensive new red tape on unions. Unions will be expected to pay for the costs of both existing and additional regulations through a new levy which will cover the running costs of the Certification Office (Clause 17). Whilst the levy may also apply to employers’ associations, it is expected that unions will be required to meet the majority of the costs. Unions will also be required to report annually to the Certification Officer (CO) about levels of industrial action (Clause 6). This will create significant new administrative burdens on unions. The TUC questions why this new duty is necessary and what purpose it will serve. Employers are likely to object to detailed information about private disputes between management and unions being published online. Unions will also be required to report annually on how political funds have been used (Clause 11). Union members will be required to opt-in every five years to any payments into a union political fund (Clause 10). Opt-in processes will increase administrative costs for unions and may reduce the level of contributions raised, as has been the case in . This proposal will also restrict unions’ rights to freedom of association and their ability to engage in political debates. Clause 10 also provides unions with just three months to sign existing members up to their political fund. The TUC believes this is unworkable, particularly as unions will also need to amend their rulebooks in order to comply with the legislation. Most unions only hold rule-making conferences once every year or two years. It will impossible and excessively expensive to convene a special rule making conference within three months of the Bill coming into force. The TUC is also concerned that Bill will change the role of the CO from an independent arbitrator of disputes into an enforcer with wide-ranging powers. Clauses 14 to 16 provide the CO with the power to: —— initiate complaints against unions, even though no union member has raised a complaint; —— carry out investigations or appoint inspectors to do so; —— adjudicate on issues and —— impose substantial financial penalties on unions. The TUC believes that the wide-ranging nature of the CO’s powers is inconsistent with the principles of natural justice.

Other useful documents: Balloting thresholds for ‘important public services’ – TUC response to the BIS Consultation on the Trade Union Bill: https://www.tuc.org.uk/sites/default/files/Balloting%20thresholds%20for%20important%20 public%20services%20-%20TUC%20response.pdf 30 Trade Union Bill: Written evidence

Restricting the right to picket and protest – TUC response to the BIS Consultation on the Trade Union Bill: https://www.tuc.org.uk/sites/default/files/Picketing%20and%20protest%20consultation%20-%20TUC%20 Response.pdf Using agency workers during strike action – TUC response to the BIS Consultation on the Trade Union Bill: https://www.tuc.org.uk/sites/default/files/Using%20agency%20workers%20during%20strike%20 action%20-%20TUC%20response.pdf October 2015

Written evidence submitted by the TaxPayers’ Alliance (TUB 11)

Who we are 1. The TaxPayers’ Alliance (TPA) is an independent, non-partisan organisation, set up in 2004, which scrutinises public spending and campaigns for lower taxes, less government waste, better value for taxpayers and further transparency from government.

Summary 2. The TPA generally welcomes the reforms included in the Trade Union Bill, having consistently voiced concerns about the unfairness of present arrangements. We certainly believe it is wrong for taxpayers’ money to be spent often unchecked on trade union activity, only for us to be rewarded with strikes and disruption. 3. There are two areas in particular where the bill has our full support; —— in addressing the lack of transparency around facility time; —— legislating against check-off payments (not in the original bill, but announced by Matt Hancock MP, Minister for the Cabinet Office and Paymaster General, as something to be introduced during the bill’s passage through Parliament). 4. Our submission explores both these issues in detail citing our own independent research. 5. But there are areas in which the bill can be further improved. Currently public sector bodies are not required to record the amount of office space given to trade unions. The TPA believe that trade unions should have to cover the cost of their office space and equipment – rooms, telephones, internet etc – at their own expense and not that of the taxpayer. 6. While there is much we believe is good in the bill, there are also areas which need to be rethought. Clause 9 states that unions will have to nominate a “picket supervisor” who will be the to the police. This individual will have to: —— give forward their name and telephone number to the police; —— be in possession of a letter stating their authority; —— produce the letter to any constable who asks to see it; —— wear a badge or armband which identifies them as the “supervisor”. 7. The TPA believes that this course of action is unnecessary and takes away from the good parts of the bill. We would, therefore, urge the Secretary of State to rethink Clause 9 as policy should be made on good analysis and not on political misgivings.

Facility time 8. The TaxPayers’ Alliance has produced three reports looking into facility time in the public sector, in 2011, 2012 and 2013. Additionally, in 2015 a report solely looking at the issue in Northern Ireland was released. 9. Since the information is not as yet widely published, producing the reports required extensive use of freedom of information requests to government departments, local authorities, public corporations, non- departmental public bodies, NHS trusts, police forces and fire and rescue services. 10. The findings of the 2013 report emphasise the importance, not just of greater transparency, but also the need for more diligence and robust monitoring of facility time from public sector employees. The report found that in the 2012-13 financial year, at least 2,871 full-time equivalent (FTE) staff worked on trade union duties at the expense of the taxpayer. At the time this was two and a half times the workforce of HM Treasury. A selection of the findings is below: —— The organisation with the highest number of staff working for trade unions was the Department for Work and Pensions with 248 full-time equivalent staff. HMRC had the second highest number with 172 full-time equivalent staff; —— Birmingham City Council was the local authority with the highest number of staff working for trade unions with 69 full-time equivalent staff working on trade union business. The second-placed local authority was North Ayrshire Council with 45 full-time equivalent staff; Trade Union Bill: Written evidence 31

—— The police force with the highest number of full-time equivalent staff working for the trade unions (not including the Police Federation) is the Metropolitan Police with 57 full-time equivalent staff; —— The fire service with the highest number of full-time equivalent staff working for the trade unions is the Scottish Fire and Rescue Service with 78 full-time equivalent staff; —— The other public bodies with the highest number of staff working for trade unions were Transport for London with 35 full-time equivalent staff, Scottish Prison Service also with 35 full-time equivalent staff and HM Land Registry with 19.1 fulltime equivalent staff. 11. This number was multiplied by the average salary and employer pension contributions of a public sector worker (£29,990 in 2012-13) to produce an estimate of the cost of facility time to taxpayers of £85 million. 12. However, given that 344 organisations did not record facility time, or only recorded it partially, we consider the figures to be an understatement. This includes 154 local authorities, 122 NHS trusts and 37 quangos. 13. The fact that we have not been able to determine a certain cost underlines the importance of increasing transparency in an area of concern for many taxpayers. 14. Since then, central government has started regularly publishing detailed information regarding the number of union representatives, the amount of facility time and the percentage of the pay bill this time represents for each department. The Local Government Transparency code also mandates local authorities to publish this information. The Trade Union Bill extends this approach to all public authorities with at least one employee who is a union official. 15. This is a welcome development which we strongly welcome.

Check-off 16. The 2013 report also revealed that 972 public sector organisations deducted membership subscriptions for trade unions. Of those, 213 (22 per cent) charged the union for the service. Charging arrangements ranged from a proportion of the cost of subscription of between 0.5 and 6 per cent, a flat charge per employee or a monthly fee charged to the union. 17. The cost of providing this service for unions is not possible to quantify, but given the ease with which payments can be made in the modern economy through the likes of direct debit, we can see no good reason why taxpayers should be expected to provide it.

Office Space 18. One area which we would like the bill to address is the use of public buildings for trade union duties. A report we released in October 2014 showed that unions were provided at least 273,753 ft2 of dedicated office space by public sector organisations. As with our research into facility time, we consider the figure to be an underestimate as many organisations do not measure the amount of office space provided to unions. 19. We identified: —— 162,070 ft2 of floor space provided to unions by councils; —— 59,999 ft2 of floor space provided to unions by NHS trusts; —— 26,693 ft2 of floor space provided to unions by police forces; —— 6,159 ft2 of floor space provided to unions by fire and rescue services. 20. Charges of just £307,093 were identified for the use this office space. The equivalent amount of space would have an annual market value of £27.4 million in Central London, £8 million in Birmingham or Glasgow of £6.2 million in Cardiff. 21. Further to this, it was discovered that unions were being provided with the use of IT facilities and telephone at the expense of the taxpayers. 22. Guidance from the Department for Communities and Local Government issued in 2013 said that “political activity by unions should not be financed by council funds” and that “restrictions should be placed on the use of office facilities for trade union representatives.” However it is clear that many local authorities are simply ignoring this advice. 23. The cheap or free provision of dedicated office space is a further taxpayer subsidy to trade unions. 24. We would like to see the government take steps to eliminate this through further amendments to the bill. October 2015 32 Trade Union Bill: Written evidence

Written evidence submitted by the Union of Construction, Allied Trades and Technicians (UCATT) (TUB 12)

Introduction 1. UCATT is the largest specialist union for construction workers in the UK and the Republic of Ireland, with members both in the public and private sectors. UCATT is the lead union among the signatories to the National Working Rule Agreement of the Construction Industry Joint Council and the Joint Negotiating Committee for Local Authority Craft and Associated Employees. UCATT is represented on a number of construction industry related bodies by the General Secretary including the Strategic Forum for Construction, the Construction Industry Training Board and the Construction Skills Certification Scheme. 2. UCATT welcomes the opportunity to make this submission to the Public Bill Committee and does so in the expectation that intense scrutiny of the Bill will show it to be a vindictive, barbaric attack by an ideologically motivated Tory leadership intent on preventing any legitimate defence of workers’ rights across the UK by the trade union and . Should this Bill be passed we will oppose it by any political and industrial means necessary. 3. UCATT is deeply angered by the attack on the human right to strike being pursued by the government’s proposals outlined in the Trade Union Bill and regulations attached. These include thresholds for industrial action ballots – the like of which is seen in no other democratised society – the need for a “40%” of those eligible, YES vote in some public services, 14 day notice for industrial action, and obligation to re-ballot members and a removal of the ban on agency staff to replace striking workers. 4. UCATT believes these proposed new laws are vindictive and barbaric, unjustified, and undermine the UK government’s human rights obligations. It is our view that the Bill and the Regulations contained therein are more about dismantling any power that a worker has in the workplace. In effect the Bill will make employers all powerful and seriously imbalance workplace relations. The Government is apparently trying to prevent workers from having recourse to the use of trade unions to protect their interests in the workplace, and to protect the quality of public services that the country relies upon.

Key concerns about the thresholds 5. Millions of working people, midwives, teachers, hospital staff, and railway workers will be prevented from collectively organising to protect their interests in the workplace. The impact of these thresholds will seriously undermine industrial action ballots. UCATT is concerned that the imposition of the draconian thresholds is not consistent with international law on the rights of individuals. 6. Despite maintaining that this is about increasing workplace democracy, the Government has consistently opposed any form of electronic voting or secure workplace balloting in union elections and ballots. Allowing this form of voting would increase the democratic participation of workers in the democracy of the union, and UCATT believes that the government is fully aware of this yet opposes this for ideological reasons. 7. It can also be argued that the proposed laws are selective and are discriminatory in that they penalise public sector workers, by making it more difficult for these workers to exert their human right to withdraw their labour through a trade union industrial action ballot than other workers. These excessive ballot thresholds therefore disproportionately affect these workers and also a high number of female workers who work in key public sector jobs. 8. The right to strike is a fundamental right enshrined in International Law. The UK Government is attempting to undermine these laws and launch an all-out attack on the trade union movement by placing greater restrictions on unions than any other voluntary sector or membership organisations in the UK.

Picketing 9. It is quite incredible that the Government is looking to bring in more restrictions on picketing by trade unions, without any semblance of evidence that there is any case to do so. The Regulatory Performance Committee review found that “there is little evidence presented that there will be any significant benefits arising from this proposal”. What this is really about is attacking the rights of workers and their trade unions to hold legitimate industrial action following the decision of workers through a ballot. The basic right to freedom of assembly and expression are being attacked. The consultation is totally one sided, there is nothing mentioned about any need to protect those workers that take strike action from intimidation by employers or other persons. 10. What about the rights of many construction workers employed through bogus self-employed schemes, umbrella companies, and zero-hour contracts? Is it not important that the Government legislates so that these workers can take industrial action in the same way as employees? UCATT represents thousands of these workers, and our day to day experience is of an industry perpetuated by a culture of fear, with workers unable to stand up for their rights as the law is stacked against them, and the reality is that they will struggle to get any works if they do so. The recent blacklisting scandal shone a light on the dark arts of construction employers. UCATT calls on the government to protect striking workers by. 11. Preventing the dismissal of workers engaged in strike action after the 12 week period by implementing a new framework of rights for workers that have taken part in legitimate action. Trade Union Bill: Written evidence 33

12. Making it automatically unfair to dismiss a worker that returns to work following a period of industrial action.

Hiring of Agency Workers to break strikes 13. UCATT would point out that should employers decide to undermine legitimate strike action by bringing in strike breaking labour agencies it will only serve to heighten a dispute and ultimately make it more difficult to achieve a negotiated settlement. Trade union members’ may harden their position if hirers engage agency workers. 14. All employers will need to be aware of any new regulations, therefore the position put forward in the impact assessment of the TU Bill that only 128 employers, those that have experienced strike action between 2010-14, need to familiarise themselves with changes is nonsense. Every hirer will need to be aware of any changes. 15. Hirers will find agencies placing inflated costs on labour, additional managers may be needed to supervise untrained workers. In addition the use of such workers may undermine the quality of the service provided by a hirer and impact on the effectiveness of the company. Many employers will, unlike this Government, recognise the problems associated with bringing in these workers. Many employers that have positive relationships with trade unions understand that their staff are the key to success and will reject this type of action, and work with trade unions to mitigate any industrial relation problems. It appears from each element of the proposed Trade Union Bill that it is the preserve of an ideological Government to stoke up attacks on trade unions and their members’.

Removal of Check-Off Facilities 16. UCATT is appalled that the Government is seeking to amend the Bill to further include the removal of check-off facilities across public sector workplaces. If check-off facilities are withdrawn across the public sector this will give the green light to anti trade union employers across wider related sectors, and private companies, to withdraw from existing check-off arrangements. 17. UCATT believes that check-off is an important and well established trade union right, and notes that withdrawing check-off has been used by right-wing regimes as an attempt to undermine trade union membership and income.

Clause 10 and Clause 11 – To restrict the Political activity of the Trade Union Movement 18. Trade Unions in the UK already have the most onerous restrictions on their actions through the current regulations that govern their actions. Trade Unions must have a ballot to set up a political fund, and a membership ballot every ten years to maintain a political fund. Trade Unions already have a burdensome amount of reporting on their political activity which includes Representation of the Peoples Act 1983, TULR (Consolidated) Act 1992, the Political Parties, Elections, and Referendums Act 2000, and the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. The Government proposals in this Bill to create an opt-in to the political fund, with a small transition period of three months, then every 5 years thereafter, is overly restrictive and UCATT would argue interferes with both Article 11 of the European Convention on Human Rights (in law in UK as Human Rights Act) which protects the freedom of assembly and trade unions necessary in a democratic society. In addition Article 5 of the European Social Charter is also relevant as it identifies that National Law should not be used to undermine the freedom of the right of workers to protect their economic and social interests. 19. Not only is there a major question about the potential government influence over the internal affairs over the autonomy of a trade union, but this is an overt is an attack on the historical link between trade unions and the Labour Party. The Labour Party was formed with the support of Trade Unionists in order that workers could be represented and have a voice in Parliament. This has been recognised by all administrations for more than 70 years including Conservative led Governments opposed to the aims of the Labour movement. If passed this will undermine the engagement of trade unions in political engagement, seek to neuter financial support for the Labour Party and see declining political involvement of many across the workplaces of the UK. October 2015

Written evidence submitted by Councillor Simon Blackburn, leader of Blackpool Council (TUB 13) I’ve attempted to keep my comments to the point but I thought it necessary to raise some of my concerns about the Trade Union Bill, in particular how they relate to industrial relations at Blackpool Council.

Turnout Requirements 1. As leader of Blackpool Council, I consider the increased turnout requirement for industrial action proposed in the bill as unnecessary, arbitrary and overcomplicated. Even in the face of unprecedented cuts to Blackpool Council, the amount of days lost to strike action remains very small – since 2010 there have been 34 Trade Union Bill: Written evidence

just two 1-day strikes involving Blackpool Council staff. It also seems unclear from the wording of the bill what services would be considered ‘important public services’ and whether that would then require multiple ballots for different services even within the council as a single employer, even in the event of a single nationwide dispute such as with the pensions dispute – whereby some council workers can strike on any successful ballot over a 50% turnout threshold but others council workers would require 40% support amongst all those eligible to vote. Such poor definitions suggest that the bill was drafted with specific political objectives in mind as opposed to any consideration relating to the democratic will of workers in any given workplace. Indeed, greater thought about the democratic implications of the Trade Union Bill would have presumably highlighted the fact that the vast majority of Members of Parliament are elected with less than 40% support of those entitled to vote, which no doubt to many members of the public.

Industrial Relations 2. If the Trade Union Bill genuinely seeks to improve the turnout of ballots, it seems unusual that other methods of balloting have not been considered such as electronic balloting. In my experience as a Council Leader I believe this would also have the added benefit of saving time and money during negotiations with unions. The proposals of introducing turnout requirements and re-balloting after 4 months in the Trade Union Bill in my view would have the opposite effect – lengthening and potentially intensifying disputes as unions will be essentially forced to go to greater lengths to mobilise support amongst staff. 3. Other elements of the Trade Union Bill similarly have the potential to entrench positions and hinder a satisfactory conclusion being made between employers and unions. In our experience as a council, industrial action has often been very much limited to a day lost here or there and often it has related to national disputes, for example over pensions. Our internal industrial relations are very good. It is my view that our staff are dedicated to their work and even when the council finds itself on the other side of a dispute to staff, I do not believe that it is a decision that they have taken lightly. 4. Using agency staff in an attempt to break strikes would in my opinion undermine mutual respect and trust between the council and its staff, which has on many occasions helped us avoid industrial action. Particularly in the context of huge local government cuts, an enormous amount of goodwill has been shown by staff in understanding some of the difficult decisions the council has had to make, and indeed their cooperation in managing change in the workplace is paramount. This kind of measure does not sit comfortably with the kind of atmosphere we wish to create in the workplace. 5. Many of our staff in adult and children’s services also spend long periods of time building close relationships with vulnerable people – to put an agency worker into that situation at short notice could well be disturbing for the client and irresponsible towards the agency staff in question. It could also have a longer term impact in undermining the trust between our staff and our clients. Our experience of strike action, is both that many staff members, particularly in these areas, and even those supportive of strike action, have actually attended work anyway because of the sensitive nature of their role and also that unions have cooperated in identifying exemptions to key members of staff. It could well be the case that if we were to begin using agency staff, it could actually have a counter-productive effect of both undermining union cooperation in identifying exemptions and indeed essentially say to those staff supportive of strike action but who have in the past attended work because they are very conscientious about the service they provide, that their work will be covered and so they can take strike action in the knowledge that they will be covered by an agency worker. To abandon laws that has been successfully in place since 1973 and have stood the test of time through periods of far greater industrial turmoil than we see today, with little evidence that the above considerations have been taken into account, seems on a rational level to lack any merit. 6. The measures covering facility time are also a cause for concern. There is a significant amount of evidence from researchers that says that facility time from trade union representatives can minimise disputes by improving communication between employers and staff and by resolving smaller issues before they escalate. I therefore believe the use of facility time for trade union representatives should be a negotiated decision between employers and unions to suit the specific needs of that workplace, rather than something dictated by government.

Regulation of Picketing 7. According to our records, there has not been a single reported incident of any form of violence or intimidation from pickets associated with any industrial action including Blackpool Council workers. Speaking as a Council Leader therefore it seems difficult to come to any conclusion other than that the proposals to further tighten the regulations on pickets are unnecessary and run the risk of criminalising council workers for very minor infringements of what seems to be a draconian set of regulations. Also, I also have concerns about the time that could be wasted policing these additional regulations at a time when police forces are also increasingly stretched themselves because of budget cuts.

Political Donations 8. Forcing union members to opt-in rather than opt-out of union political funds seems to have nothing to do with democracy and everything to do with an attempt to reduce the well-regulated and democratically agreed small donations from millions of workers to the Labour Party, whilst offering no checks whatsoever on the Trade Union Bill: Written evidence 35

large donations from big business and the wealthy who bankroll the Conservative Party. I believe changes such as this should be agreed through cross-party consensus.

The Role of the Certification Officer 9. It seems difficult to understand what the purpose of allowing what is currently a highly respected, independent post in the Certification Officer to initiate, investigate, make decisions and ultimately punish trade unions over clearly internal constitutional matters such as trade union elections or union mergers, without there even being any complaints raised by any of the trade union’s members. I believe this opens up the office to being bogged down with investigations initiated as the result of spurious complaints by employers or politically motivated members of the public – the extra cost of which will then be apparently carried by trade unions but not employers’ federations such as the CBI. In doing so, I believe this would result in two problems, firstly undermining the cherished independent status that the Certification Officer enjoys and secondly distract the Certification Officer from performing the best possible job in the role we currently understand the post to encompass. Councillor Simon Blackburn MA Leader of the Council October 2015

Written evidence submitted by UNISON (TUB 14)

Introduction 1. UNISON believes that the measures contained in the Trade Union Bill and associated regulations and proposals will restrict the ability of people at work to organise collectively, make their voice heard at work and if necessary, take industrial action. It shifts the balance of power away from workers, whether they belong to a union or not. It will damage social partnership and replace constructive relationships with protracted disputes and increased litigation. UNISON believes the Government should be focusing on the real problems our country faces instead of undermining the civil liberties of trade union members or weakening people’s right to be supported at work. 2. UNISON believes that the full impact of the Bill on core trade union activities – supporting members through challenging times, working constructively with employers and undertaking collective bargaining on pay and conditions have not been properly scrutinised or understood. We therefore welcome the opportunity to make written and oral submissions to the Public Bill Committee on the full implications of the Bill’s provisions. 3. We agree with the TUC that the Bill and its accompanying proposals and announcements amount to nothing less than “a full frontal assault on the industrial and political freedoms of the British trade union movement”. It is our view that they amount to a breach of international law. We endorse the TUC submission to the Bill Committee.

Ballot thresholds for industrial action (Clauses 2/3), Information requirements relating to industrial action (Clauses 4/5/6) & Timing and duration of industrial action (Clauses 7/8) 4. UNISON is deeply concerned that these clauses places at risk the fundamental right to strike, and unjustifiably so. Strikes are at a record low and the UK already has a strictly regulated system for industrial action. Unions already have to comply with highly complex legislation, including onerous notice and balloting requirements. As a result, unions are at risk of legal challenge, with employers able to win injunctions for minor administrative errors and thereby preventing industrial action from taking place. The Bill would exacerbate this. As a result of Clauses 4-8: —— unions will have to take more time in the run up to ballots to ensure the necessary turnout, prolonging the dispute; —— thresholds will remove the incentive on employers to seek an early resolution of the dispute. Many will decide to wait and see if a union can meet the strike thresholds before making a revised offer; and —— the extended 14 day notice of industrial action will needlessly delay its start. —— time limits for strike mandates are likely to escalate disputes, with employers choosing to sit out disputes and refusing to negotiate in the knowledge that unions will incur new costs if they are required to re-ballot their members after 4 months; —— all these factors make it harder for ACAS to gain agreement from employers to engage in talks; and —— the rules on who is covered by the 40% yes vote requirement are highly complex and placing responsibility on unions to determine who is covered places a huge bureaucratic demand where multiple employers and service users are involved.29

29 Unions will need to gather detailed information from staff about the nature of their jobs, whether any public services benefit from their work and how much of their working time is allocated to different contracts. These may not be easy questions for workers to answer, making it very difficult to comply with the legislation. 36 Trade Union Bill: Written evidence

5. UNISON is firmly committed to increasing participation in all forms of our democratic activity – including industrial action ballots and this is why we are asking for electronic and/or supervised workplace ballots. Contrary to government claims that e-balloting is insecure, many membership organisations use electronic and online balloting, including political parties who use them for candidate selections. A recent Speakers’ Commission for Parliament also recommended that secure online voting should be an option for all voters by 2020. UNISON is also in favour of supervised workplace ballots, which is currently already permitted by law for union recognition ballots by the Central Arbitration Committee and for which there is an existing legal framework. 6. A refusal to consider electronic balloting or workplace balloting together with extensive red tape undermines the government’s claim that they support ordinary people’s ability to withdraw their labour or increased democracy. Instead, workers, particularly those who are in low paid, insecure work will now face a series of bureaucratic hurdles, which might result in legal action and financial penalties even if all the thresholds are met. Even with all these conditions met, proposed regulations will allow the use of agency workers to break strikes. 7. Trade union activity provides workers a place to voice their experiences and mechanisms to resolving grievances and disputes whether informally or through collective bargaining. This plays a critical role in resolving disputes and in avoiding the need for industrial action or expensive litigation. Without a credible right to strike, there is no incentive for unscrupulous employers to engage with the concerns of their workforce. Placing tighter restrictions on trade unions is likely to prolong and escalate disputes in the workplace, making them more difficult to resolve swiftly and amicably. 8. The well-being of workers cannot rely on the voluntary efforts of employers. They rely on equal bargaining power between unions and employers. The ability of unions to organise lawful industrial action is essential support for effective bargaining. 9. Our annexe sets out case studies and examples of how social partnership helps manage change and deliver high quality services. The Bill will ride roughshod over this best practice and threatens to undermine a spirit of collegiate working that has taken years to foster. Deliberately damaging employment relationships just when public services are set to go through increased workload and budgetary pressures sacrifices the efficient provision of high quality public services for the sake of ideology. 10. The proposal currently under consultation to use agency workers to break strikes also affects the safety and quality of the services. Under UK law, agency workers are not protected from any detriment if they refuse an assignment because they do not wish to replace striking workers. They could find themselves in an unfamiliar workplace without the proper support, induction and directions from permanent colleagues that they need in order to perform their tasks appropriately. This will put them in an impossible and unfair position and the Recruitment Employment Confederation agree.30

Picketing (Clause 9) 11. Peaceful protest is an important part of an open and democratic society and there should be no place for a law that makes criminals of people making their voices heard in this way. UNISON is extremely concerned by the implications of plans to regulate peaceful protest, including: —— Appointment of picket supervisors who must wear armbands and carry letters of authorisation, the absence of which could expose their unions to legal action. —— Publishing picket and protest plans and to state in advance if unions plan to use website, blogs and social media, including what they plan to set out. —— Campaigning activities subjected to unprecedented scrutiny and monitoring by employers, police and the Certification Officer (CO). —— The introduction of new criminal offences and the use of ASBOs to regulate the activities of pickets. 12. Laws already exist which prevent intimidation or the use of aggressive behaviour on picket lines and unions must comply with a detailed Statutory Code of Practice31 and these proposals are unwarranted, overly- prescriptive and set a dangerous precedent. They represent a serious and unjustified attack on the civil liberties of trade unions and their members. 13. While the government has denied that social media will be covered, BIS warned that unions could be asked to ‘specify’, amongst other things: “Whether it will be using social media, specifically Facebook, Twitter, blogs, setting up websites and what those blogs and websites will set out”32 14. The government has also argued that only trade unions and not individuals would be covered. However, BIS makes clear that if ‘individuals have ignored the union’s strategy and are acting on their own ’ the

30 “We are not convinced that putting agencies and temporary workers into the middle of difficult industrial relations situations is a good idea for agencies, workers or their clients.” http://www.bbc.co.uk/news/business-34252307 31 Under Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 32 Paragraph 25 & 26, BIS ‘Tackling intimidation of non-striking workers’ (2015). Trade Union Bill: Written evidence 37

union would have the chance to ‘repudiate’ them.33 The government gives unions the option of submitting to excessive monitoring or repudiating their own members – or facing enforcement action including penalties from the CO. 15. There is no clear explanation as to why unions are required to report on their intended use of social media or how the police or CO are expected to do. We believe its intention is to deter unions and their members from promoting their campaigns, thus stifling democratic debate. In our opinion, scarce police resources would be better deployed protecting the wider community rather than monitoring the peaceful activities of trade union members.

Political Funds (Clauses 10/11) 16. These clauses weaken democracy in two ways. First, the clauses place unnecessary requirements on trade unions that will affect how they campaign outside of party politics. Such requirements do not exist in relation to other civil society organisations or campaign groups. As such the clauses seek to single out and silence the campaign voice of working people. 17. Most of UNISON’s campaigning work is funded by our non- party political aligned General Political Fund (GPF) – following priorities set democratically at our national conference. The GPF supports a wide range of external local and national causes – including giving grants to anti-racism projects, civil society groups and community campaigns. GPF spending during elections is already regulated by the Lobbying Act. 18. Secondly, by directly affecting the way in which trade unions fund the Labour Party, these clauses undermine the long standing custom that parties should refrain from interfering in the funding and organisation arrangements of rival parties. It is difficult to see how union members could sustain current levels of funding for the Labour Party, or how the party could find alternative funding. 19. UNISON members already have a choice whether to pay a proportion of their subscriptions into the GPF, an affiliated political fund (Labour Link), both funds, or neither. 20. UNISON will have to introduce rule changes to take account of this provision making the three month deadline impossible to meet as any changes to union rule books have to meet separate Certification Officer requirements not covered by this Bill.

Facility time (Clauses 12/13) 21. Research by NatCen34 has highlighted the valuable role trade union representatives play in public services, enabling meaningful consultation and negotiation within workplaces, improving workplace relations and employers’ reputations, early interventions to prevent grievances escalating into more serious problems and saving jobs during restructuring and redundancy processes. Facility time pays dividends for both employers and workers. These provisions will damage this work. It will also damage workplace learning, health and safety and work done to prevent discrimination. 22. Workers also use facility time to undertake training, attend union meetings and take part in internal union democracy. The government has argued for greater levels of trade union democracy while restricting the ability of ordinary members to participate fully. Facility time should be left to the employer’s discretion as it is in the private sector.

Certification Officer (Clauses 14/15/16/17) 23. The Trade Union Bill will give unprecedented new powers for the CO that do not exist for similar regulators such as the Charity Commission. Trade unions are already over-regulated and now more restricted than other civil society organisations. The CO will have wide-ranging powers to initiate complaints against the union, to investigate the activities of the union and to decide which penalties should be imposed on the union. It will lead to additional costs for unions through the proposed levy, to be charged to unions to cover the running costs of the Certification Office.

Check Off 24. In August, the government announced they would be removing “check off” in the public sector. At the time of writing, the wording of the amendment has not been seen. Many UNISON members have their subscriptions taken straight out of their wages – a process efficient and beneficial for both employers and members. 25. It is underpinned by three contractual relationships – the contract with the employer and staff member agreeing to the arrangement, the collective agreement between the employer and the union and the contract of membership between the member and the union. The proposal to prohibit the use of Check Off has been announced without consultation with employers or unions.

33 ibid. 34 http://www.natcen.ac.uk/our-research/research/the-value-of-trade-union-facility-time/ 38 Trade Union Bill: Written evidence

26. UNISON pays for the cost of check off in many instances but the majority of employers facilitate this because they find it beneficial. Indeed, Danny Alexander MP when a Treasury Minister in the Coalition Government, wrote to stop attempts by other ministers to end check off, saying “Departments should be aware that there is no fiscal case for doing this, as the Unions have offered to pay any costs associated with check-off, which are in any case minimal.”

27. Employers facilitating check off is another example of partnership working with their staff and trade unions. It fosters constructive employment relationships and supports collective bargaining. This is why since the announcement, a host of public service employers have voiced their support for retaining check off.

28. There has also been concern expressed at damage to the localism agenda, from across Britain. The North East Regional Employers Organisation stated “We are surprised and disappointed that we are to lose the autonomy to take our own decisions around these important areas for employee engagement, particularly given the government’s rhetorical commitments to the localism agenda.”

29. As Scottish Councils stated:

“COSLA Leaders are highly concerned that these changes are being brought in with no evidence to back up the assertion that this would modernise industrial relations …. We have a constructive environment now where we work WITH our trade union partners to the benefit of all communities in Scotland. The UK Government, through this Bill, would force councils into changing the arrangements for “check off” and facility time which work well for both parties and the cost of these arrangements are already covered by direct contributions from the trade unions themselves.

Devolution 30. First Minister for Wales, the Rt. Hon. Carwyn Jones made clear in a strongly worded statement that the Bill would damage employment relations, in a way that trespasses into matters devolved to the Wales Assembly.

31. It would also have serious implications in Scotland. While industrial relations is a reserved matter to Westminster, sections of this Bill, particularly those dealing with check off/DOCAS and facility time, explicitly interfere in devolved issues of public administration. UNISON believes that the Bill requires the support of devolved parliaments, a viewpoint supported by the Scottish and Welsh governments.

32. The Scotland Act also requires that human rights must be respected and realised at all levels of governance in Scotland – as UNISON argues above, the bill breaches a number of the articles in the European Convention on Human Rights and in particular ILO conventions that the UK has signed up to.

33. All public bodies in Britain are required to have a due regard for the need to eliminate discrimination, however the duties are much stronger in both Wales and Scotland. This means that the Bill will cause additional difficulties, given UNISON’s view that they have significant equality implications, outlined below.

Equalities 34. There is a very real danger that the Bill will undermine decades of progress on equal opportunities. Restrictions on facility time and the damage to social partnership will erode the work done by trade unions to improve equal opportunities practices, thus removing one of the best protections from discriminatory treatment. Unions also train officers and representatives to deal with a range of issues including bullying and harassment and to promote equality and bargain for equality at work.

35. Women make up the majority of the trade union movement and TUC research has highlighted the fact that 73% of the people working in the defined ‘important public services’ are women and will be therefore be disproportionately affected by these new restrictions on their democratic rights.

36. This is illustrated by the gender pay gap, where figures show that the public sector has consistently outperformed the private sector. Unions and employers worked together to produce non-discriminatory pay systems in local government and health. As a direct result of this and other measures jointly agreed to improve women’s workplace opportunities, the pay gap in the public sector has been consistently lower than the private sector since 200335 benefiting millions of women.

37. The BIS equality impact assessment of the Trade Union Bill, published one day after the consultation phase closed fails to engage with any of these concerns, even to dismiss them. It simply concludes: “our assessment suggests that there will be no direct adverse equality impacts on these groups from the implementation of the Bill measures. These measures are expected to be beneficial overall, since they are intended to ensure that there are strong democratic mandates from members for the actions of their trade union and to provide a regulatory framework for trade unions.”

35 It currently stands at 11%, compared to 17.5% in the private sector, although since 2003 it has fluctuated at around 10% and progress remains slow. Trade Union Bill: Written evidence 39

38. This betrays a lack of understanding of discrimination experienced by workers with protected characteristics and the proactive role of collective bargaining in preventing discrimination and promoting positive policies such as equal pay or family friendly working. October 2015

Annex

Legal concerns 1. UNISON agrees with the TUC that the government’s proposals violate ILO Conventions 87, 98 and 151. They may also violate other treaties to which the United Kingdom is a party, including the European Social Charter, particularly Articles 10 and 11. UNISON endorses the TUC submission to the ILO committee of experts. 2. The European Convention on Human Rights also safeguards the right to freedom of association, including the right to form and join trade unions and the right to freedom of expression without state interference. 3. The proposed restrictions on rights to picket and protest peacefully would seriously interfere with the civil liberties of working people in the UK, including their rights to assemble and to freedom of expression. They interfere with the democratic right to protest and with Article 10 of the European Convention on Human Rights in a way which is not otherwise reflected in civil society. This in our view indicates a specific targeting of trade unions and the activities of trade union members. The measures are draconian and unbalanced. There is clear risk of Article 11 violation in addition to Article 10.

The trade union contribution to the workplace 4. Trade unions play a central role in resolving disputes in the workplace and in avoiding the need for industrial action. Placing tighter restrictions on trade unions is likely to prolong and escalate disputes in the workplace, making them more difficult to resolve swiftly and amicably. 5. One example of the kind of social partnership working UNISON and its members engage in within the public service is in the NHS. Successful partnership working is something that has defined industrial relations in the NHS, particularly over the last 10 years, across different governments. The provisions of the Trade Union Bill will ride roughshod over much of this best practice that has built up and threaten to undermine a spirit of collegiate working that has taken many years to foster. 6. Partnership arrangements are currently in place at every level in the NHS across all four UK countries. Such partnerships between the health trade unions and NHS employers are a recognised and vital component of supporting the groundbreaking collective Agenda for Change agreement which gave women and men more equal pay for work of equal value for the first time, which is in place in all NHS organisations bar one. This collective agreement identifies that trade union representatives should be released appropriately to participate in the partnership process and that nominated officers of local staff representatives can be fully involved in the local partnership arrangements. 7. All parties agree that partnership working with NHS trade unions promotes efficient, safe and high quality health services. The tripartite NHS Social Partnership Forum (SPF) – the body for partnership working between the Westminster Government, employers and trade unions in England – describes the importance of this approach: “The SPF recognises what a powerful tool partnership working between employers, policy makers and trade unions can be, and how it makes a real difference to patient care and influences employment practice in healthcare and beyond.” 8. The SPF website has pages dedicated to the many case studies of the successes brought about by partnership working, which include improved disciplinary procedures, improved attitudes to LGBT service users and patients, and helping establish integrated community-based health and social care services. More information on these can be found here. 9. The principles enshrined in the partnership agreement (last signed by Andrew Lansley, then Secretary of State for Health in 2012 and underpinned by the NHS Constitution) include a commitment to ensuring high quality outcomes and making the best use of resources. UNISON’s members show a deep commitment to high quality public services – at work and in the union. 10. Another example of social partnership working is the NJC Job Evaluation Joint Technical Working Group (TWG) in Local Government, set up in 1995. This anticipated a successful outcome for single status negotiations which were then ongoing, where a job evaluation system would be required to support grading reviews for employees assimilated to the new national spine. The TWG oversaw a tendering and contracting process for a computerised system for all local authorities to use. The group also produced a range of supportive materials for employers including a user manual and training packs and also appointed consultants to help in the implementation process. TWG was reconvened in 2012 to review the NJC scheme guidance and user manual in accordance with good job evaluation practice, against a background of significant restructuring in councils. During 2013 TWG updated the scheme guidance, user manual and technical notes to take account of 40 Trade Union Bill: Written evidence

these developments. Over the last year, TWG has produced craft profiles and is about to develop new social care and public health profiles to reflect new and evolving jobs. 11. Counter to the picture painted by the Trade Union Bill, associated consultation documents and impact assessments trade unions have a highly constructive role in managing employment relationships in workplaces across the UK. As public services go through more changes and pressures in the years ahead, the impact of the Trade Union Bill is likely to be extremely unhelpful. For example, the current most pressing concern across the NHS is the implementation of the Five Year Forward View, much of which is predicated on the delivery of new models of care. 12. The moves towards developing Multispecialty Community Providers, Primary and Acute Care Systems, Urgent and Emergency Care Networks and Enhanced Health in Care Homes will inevitably require a great deal of change from the workforce and will need to be handled sensitively to ensure healthcare staff are brought on board with such reforms so that they become advocates for reform rather than opponents of it. The deleterious impact on partnership working that is likely to stem from the government’s proposed changes has the potential to damage the NHS’s ability to produce these new models and to adapt to new ways of working. 13. Social partnership is a tried and tested approach in education across all sectors. Staff development initiatives have been at the forefront with UNISON receiving financial support from HESDA in 2001 to carry out a skills project. In 2006, UNISON and the Centre for Excellence in Leadership were funded by BIS to develop and promote a suite of support staff training in colleges. In October 2010 UNISON co-signed a partnership agreement with Ofsted. UNISON has sat on boards and panels of sector skills councils and works in partnership with organisations, such as the Education Training Foundation to develop professional standards and to introduce policy-specific training for staff. In Higher Education, partnership approaches were taken to the Rewarding and Developing Staff projects funded by HEFCE and there are ongoing discussions with the employers’ body UCEA on areas that would benefit from a joint approach. Similarly, UNISON works with the Association of Colleges (AoC) on agenda of joint interest and in 2015 held discussions on the Living Wage, employee involvement and partnership working after AoC and UNISON had commissioned research from the Involvement and Participation Association. 14. There is a high level of partnership working in schools and academies. UNISON sat on the board of the Training Agency, was a full partner on Workforce Agreement national and local partnerships and now works with the DfE education forum and local school forums. UNISON is working in partnership to deliver the school business managers professional standards, was involved in the development of teaching assistant standards and hosts Skills for Schools, a training website that is open to all school staff and employers. UNISON was an adviser to the 2005 school meals review in England and sits on the School Food Plan expert panel and its workforce sub-group that helped develop the first professional standards for school catering staff, launched in July. 15. The positive role that trade unions play goes far beyond their formal workplace role. Unions are the largest volunteer organisations in the UK and our members are active within the union, their workplace and community to improve the lives of those around them. Trade unions such as UNISON have devoted much energy to patient and public-facing education and training campaigns to improve the quality and experience of care for patients and service users. For example, following the Francis report into Mid Staffordshire, the union launched its “Be Safe” training to help boost member awareness of how they can raise concerns about poor care in the workplace and what protections are in place for staff that do so. 16. Likewise, UNISON has also been conducting training for members in dementia awareness. In King’s Lynn, for example, 300 staff have taken the training which will help make a real difference to the lives of local patients and service users. 17. The government’s proposals are likely to prove hugely divisive in many workplaces, with the intention seemingly of driving a wedge through established industrial relations policies. The consequences of this are not measured in the impact assessment. UNISON believes that there will be a considerable negative effect on workplace morale, stress, good will, staff turnover and productivity.

Damage to social partnership 18. UNISON does not believe consideration has been given to the damaging effect the Trade Union Bill would have on constructive employment relations and social partnership. For example, industrial action in the UK tends to be of short duration. In 2014, 64% of all stoppages lasted for only one or two days and accounted for 633,000 days lost (80%) and 93% of workers taking part in industrial action. The proposed new legislation has the potential to escalate and prolong disputes, making them more difficult to settle swiftly and amicably. The Bill’s provisions will lead to extended disruption. 19. As outlined in our introductory comments, the proposals to restrict employees right to strike, facility time and other attacks on trade union activity within the provisions of this bill will have a chilling effect not only on trade unions but on constructive relationships between workers and employees. 20. As public services go through more changes and pressures in the years ahead, the impact of the Trade Union Bill is likely to be extremely unhelpful. For example, the current most pressing concern across the NHS is the implementation of the Five Year Forward View, much of which is predicated on the delivery of new Trade Union Bill: Written evidence 41

models of care. The moves towards developing Multispecialty Community Providers, Primary and Acute Care Systems, Urgent and Emergency Care Networks and Enhanced Health in Care Homes will inevitably require a great deal of change from the workforce and will need to be handled sensitively to ensure healthcare staff are brought on board with such reforms so that they become advocates for reform rather than opponents of it. The deleterious impact on partnership working that is likely to stem from the government’s proposed changes has the potential to damage the NHS’s ability to produce these new models and to adapt to new ways of working. 21. Wherever organisations face difficult economic conditions, unions work with employers to develop fair processes for managing change and restructures. Analysis of the 2011 Workplace Employment Relations Survey found that a large majority of lead union representatives reported working closely with management where changes were being introduced in the workplace.36 One recent example is the Environment Agency, where in 2013 a large reorganisation was announced with 1600 jobs being placed at risk. Following the storms and widespread flooding during the winter of 2013-14, UNISON successfully pressed for a reduction in frontline job losses in order to protect the public. UNISON representatives also convinced the Environment Agency to comply with the existing Managing Change Agreement and to offer voluntary redundancies and redeployment as a means of avoiding compulsory redundancies. After a 15 month period, the vast majority of staff were either redeployed, some into new jobs, or accepted voluntary redundancy.

Safety at work 22. Union workplaces are safer workplaces, largely due to the 10,000 union health and safety reps being trained each year to internationally recognised standards. Unions raise safety concerns through health and safety committees and collective bargaining arrangements. This leads to far fewer workplace accidents.37 According to research commissioned by the DTI (now BIS) in 2007, by reducing lost time from occupational injuries and work-related illnesses, union safety reps save taxpayers between £181 and £578m every year.38

Damage to public services and public safety 23. The government has tried to argue that strikes in the ‘important’ public services cause harm to the public and risks their safety. In its consultation document, BIS stated “With regard to industrial action in these public services, the challenge is to get the balance right between the interests of union members and the interests of the majority of people who rely on the services they provide.” For UNISON and its members, these interests are wholly aligned. Far from placing the public at risk, trade unions play a vital role in protecting public services, driving up health and safety not just for staff but also the public. While the government argues within the BIS consultation documents for adequate levels of staffing to ensure public services run efficiently, this concern should not be restricted to instances of industrial action. UNISON and its members are at the forefront of arguing for high quality public services all year round. For example, UNISON is a member of the Safe Staffing Alliance and campaigns strongly for safe staffing levels throughout the NHS, particularly in light of the Francis report and subsequent work in this area. 24. Trade union activity is one of the best guardians of public safety and high quality services. UNISON recently organised a group of cleaners working in a university. The branch was campaigning for recognition and a living wage for cleaning staff. It was brought to the branch’s attention that only a fixed number of the cleaners were being provided with adequate footwear to clean up spills of often noxious liquids. The cleaning company were expecting the cleaners to share one pair between them. UNISON organised an online petition, which was circulated through social media, and also produced a flyer highlighting the footwear issue and linking it to a claim for the living wage. The university public relations team were embarrassed to find out that the cleaners were not even getting the right footwear. A few days later the cleaning company not only conceded in providing the correct footwear, but also started paying the living wage. 25. Trade unions such as UNISON have devoted much energy to patient and public-facing education and training campaigns to improve the quality and experience of care for patients and service users. For example, following the Francis report into Mid Staffordshire, the union launched its “Be Safe” training to help boost member awareness of how they can raise concerns about poor care in the workplace and what protections are in place for staff that do so. 26. UNISON members are dedicated to serving the public and take their commitment to patient safety very seriously. As recent industrial action over NHS pay demonstrated, UNISON and the other health unions were able to engage in emergency cover discussions with employers. In the interests of patient safety, UNISON strongly advised its health branches to engage with employers where they sought to discuss levels of cover to ensure contingency plans were in place during industrial action. 27. Common practice is to recommend Christmas Day cover when industrial action takes place. The result of industrial action is then that some services (such as outpatients and elective surgery) will not take place or will be restricted, but patient safety is maintained throughout as it would be on Christmas Day.

36 Hoque, K, and Bacon, N ‘Workplace union representation in the British public sector: Evidence from the 2011 Workplace Employment Relations Survey’ Working Paper (2015) 37 Nichols, Walters and Tasiran, ‘Trade union mediation and industrial safety’, Journal of Industrial Relations 2007 38 ‘Workplace Representatives: a review of their facilities and facility time’ DTI (2007) 42 Trade Union Bill: Written evidence

28. In the NHS, UNISON has an agreed policy on industrial action and emergency cover and agrees the exemption of certain categories of staff from the strike where there would otherwise would be a direct danger to the life or limb of any person such as in the emergency services in the NHS. Similarly, in local government, UNISON is committed to reach agreement with managers to ensure the public’s safety and health is protected. There are a range of services where UNISON agrees life and limb cover, such as residential homes for children and the elderly, emergency duty social work and emergency meals-on-wheels.

The case for electronic and workplace voting 29. The government claims to be interested in increasing participation in union democracy. If this is the case, Ministers should permit unions to use secure electronic and online workplace voting in union statutory ballots and elections. 30. UNISON believes that the existing balloting requirements are in urgent need of reform. Currently, all ballots and elections must be conducted on a fully postal basis and voting must be by the marking of a voting paper. UNISON has joined the TUC and other affiliated unions in repeatedly expressed concerns that these requirements impose onerous financial and administrative burdens on unions and can result in lower levels of involvement by members in key democratic decisions within unions. Fully postal ballots are expensive and can unnecessarily extend the voting period. This can be detrimental to good industrial relations, for example in cases of industrial action or statutory recognition, where faster and more efficient balloting methods can assist in the earlier resolution of disputes. 31. These views were supported by the Better Regulation Taskforce in its report entitled Employment Regulation: striking a balance published in May 2002. In it, the Task Force commented that the provisions of the legislation relating to union elections and ballots “appear to impose undue burdens on trade unions”. Following this report, the government introduced legislation (section 54 of the Employment Relations Act 2004) which provided powers permitting the introduction of electronic ballots for unions. To date, these powers have not been utilised. 32. UNISON believes that the government should modernise the law and permit unions to use electronic and workplace voting systems. This would encourage increased participation in union democracy and help bring ballots into the 21st century. Different methods of voting would be welcomed by union members as offering greater flexibility, speed, convenience and ease of access. 33. Online balloting can be safe and secure, much like online banking. Many membership organisations, including the RNIB, the Institute of Chartered Accountants for England and Wales, the National Trust, the Magistrates’ Association, the Countryside Alliance and the Royal College of Surgeons, use electronic and online balloting for elections. Political parties also use online voting for the selection of candidates. A recent Speakers’ Commission for Parliament also recommended that secure online voting should be an option for all voters by 2020. 34. UNISON therefore calls on the government to introduce legislation permitting the use of secure electronic and workplace ballots as a matter of urgency. The legislation should also be future-proofed enabling unions to take advantage of existing and new forms of technology. 35. The statutory scheme should be light-touch and avoid onerous additional duties for trade unions. Scrutineers should be expected to oversee the balloting process and to validate whether they conform to statutory requirements, including that: —— All those entitled to vote have an opportunity to do so; —— Votes cast are secret; —— The risk of any unfairness or malpractice is minimised 36. UNISON also believes it is important that union members have the opportunity to vote in the workplace. Workplace voting is likely to increase member participation in ballots. Union members associate their union membership and activities with their workplace rather than their home lives. However, it is essential that members can vote in a way which is free from interference or intimidation by their employers.

Excessive Bureaucracy 37. The Bill places excessive bureaucratic demands on trade unions, particularly with the proposals around thresholds for ‘important’ public services. —— Unions will need to determine which members who work in the service sector who might, as part of their job, provide ancillary services to public services and therefore be caught by the 40 per cent threshold. As a result, they will need to gather additional detailed information from members relating to their jobs and functions. This will place onerous new administrative burdens on unions and divert union officials and reps away from the day to day representation of union members. —— Employers currently have no duty to cooperate with unions or to respond to requests for information. If the government proceeds with the legislation, as a minimum employers should be required to cooperate with unions and to provide requested information. Trade Union Bill: Written evidence 43

—— Unions will face a significantly increased risk of legal challenges if the legislation is introduced. Unions will therefore face higher legal fees. The new legal thresholds are likely to generate endless satellite litigation. For example, the TUC has argued that TUPE-style litigation examining whether individuals were normally engaged in the provision of important public services or ancillary activities might become likely. Such litigation will create excessive legal costs for unions and employers alike. —— Unions will be required to re-ballot members if industrial action will last for more than 4 months. This will impose excessive and unjustifiable costs on unions, including the costs of preparing additional complex ballot and industrial action notices for employers, scrutineers’ fees, postage costs, legal fees, and officer time overseeing the ballot. —— Every year, unions will be required to gather and submit significant additional information to submit to the Certification Officer relating to industrial action undertaken and political fund expenditure. This will create significant additional administration costs for unions. —— Unions may be required to prepare detailed notices setting out plans for any pickets or protests associated with industrial disputes. —— The proposed cap on facility time in the public sector will limit the ability of unions effectively to represent members in the workplace. Union members and employers will be the principal losers from these measures. However the proposals will also increase the workload placed on full time union officers. —— New provisions prohibiting the use of ‘check-off’ facilities in the public sector will mean that many unions will need to make substantial organisational changes to facilitate the increased use of direct debits to pay union subscriptions.

Picketing and protest – curtailing civil liberties 38. UNISON is deeply concerned that Clause 9(6) states that a picket supervisor must show the letter of authorisation to any police officer who asks to see it even if there is no evidence of criminal behaviour. Furthermore, we are concerned that the interaction between a police officer and an individual could form the basis of a future legal challenge by the employer. These provisions call into question the independent role of the police in relation to industrial disputes. 39. Clause 9(6) also requires picket supervisors to show their letter of authorisation to anyone who reasonably asks to see it. This requirement is broader than the current wording of the Code of Practice which requires the letter to be shown to ‘the people who want to cross the picket’. It is unclear why members of the public should be entitled to know the identity of picket supervisors. UNISON is concerned that this provision will encourage officious third parties, including security firms appointed by the employer to approach picket lines and to demand to see the individual’s letter of authorisation. 40. UNISON agrees with the TUC’s opinion that additional elements of the Code of Practice should not be transposed into legislation. The BIS consultation document on these proposals acknowledged that most pickets conform to the guidance set out in the Code and has provided no evidence of widespread violations which would justify giving it a legislative basis. The existing Code is therefore effective as a regulatory tool. There is no justification for imposing additional legislative regulations on unions. 41. Requiring unions to identify all members of pickets, in the same way as the picket supervisor, would be excessive and would be a form of intimidation. Many individuals would fear being victimised by their employer or even ‘blacklisted’. They would therefore be unreasonably deterred from exercising their fundamental democratic rights. 42. UNISON believes that it would be unreasonable for the government to place a legal duty on unions to train officials in law relating to picketing. This would create significantly additional costs for unions. It would also be unfair for the government to impose such a duty at the same time as withdrawing the fee remission arrangements for trade union education, which is due to take effect from 1 August 2016. 43. Union representatives could also lose out as a result of these proposals. Increasing constraints on facility time mean than union reps, particularly in the public sector, find it difficult to negotiate release time to attend union education courses. Workplace representatives could be required to attend courses in the evenings or weekends or take annual leave in order to participate. This would interrupt an individual’s time for family life and union members’ caring responsibilities. 44. There is also a concern that the requirement on unions to provide notice of their campaign activities could lead to increased monitoring of trade union communications and activities. This would be a matter of serious concern to the whole trade union movement. These concerns have been heightened in the light of recent revelations that blacklisted union activists in the construction sector were the subject of state surveillance. 45. The government’s proposals are also not even-handed. Unions will be required to notify employers that industrial action will be taking place 14 days in advance, but employers are not required to announce whether they plan to use agency workers to break the strike. The employer will also be under no obligation to publish a notice which details their plans to campaign against the industrial action, including how they plan to communicate with union members. 44 Trade Union Bill: Written evidence

46. The government has claimed39 that the measures will not apply to individual union members. However, UNISON expects that employers will argue that unions are responsible for the actions of union officials, including full-time officers, branch secretaries and union workplace representatives. Given the realities of how social media works, it can be difficult to differentiate between accounts run by organisations and those which represent the personal views of those employed by or who are members of those organisations. Will a union member who changes their twitter profile to reflect their union’s logo be considered to have been tweeting on behalf of the union or of themselves? Will a workplace representative whose Twitter profile recognises their voluntary union role be seen as running a personal or an organisational account? We anticipate that these complexities will lead to endless legal challenges on whether tweets were written and posted on behalf of the union or in a personal capacity. The overall effect of these measures will be to constrain rights to freedom of expression for unions and individual members and activists.

47. UNISON also believes that the sanctions proposed for failure to comply with the notice requirements are excessive and unjustified. The consultation document on this proposal suggests that unions who fail to publish accurate and up to date notices could face financial penalties of up to £20,000, imposed by the Certification Officer.

Written evidence submitted by the City of Wolverhampton Council (TUB 15)

1.0 Background

The City of Wolverhampton Council would like to comment on the following in response to the Trade Union Bill (2015-16);

—— Facility Time: Time off for Union Reps to support members. This is currently locally negotiated and agreed at the City of Wolverhampton Council.

—— Deduction of Contribution at Source. An established system for the payment of trade union subscription from employees’ salaries is effectively in place at the City of Wolverhampton Council.

2.0 considerations and Implications

2.1 The City of Wolverhampton Council recognises the positive contribution that trade unions and trade union members make in our workplaces. We value the constructive relationship that we have with our trade unions and we recognise their commitment, and the commitment of all our employees, to the delivery of good quality public services.

2.2 There is concern that the introduction and implementation of the Trade Union Bill could affect the positive and constructive relationship this council has with our trade unions and inevitably our workforce.

2.3 Facility Time: The City of Wolverhampton Council has a jointly agreed and negotiated Trade Union Time off and Facility Agreement which supports and compliments our commitment to resolve employee relations and workplace issues through discussion and agreement.

2.4 It is our belief that trade union and facility arrangements should be agreed locally in order to remain responsive to the particular needs of each employer and support local employee relations strategies. Earlier intervention in relation to complaints, grievances and disciplinaries preventing escalation into more serious problems; thereby saving the council money by reducing the impact on staff time and potential legal costs.

2.5 Deduction of Contribution at Source: We have effective methods in place for deducting trade union membership subscriptions through Deduction of Contributions at Source (DOCAS). We see this as an important part of our positive industrial relations and an effective system that supports our employees.

2.6 The potential ending of Deduction of Contributions at Source (DOCAS) in the public sector would be of concern to this council. Furthermore, savings with regard to the cessation of the administration of the deduction of union subscriptions would not be substantial as the transactional process is largely automated and well established and one of many pay deductions we process.

2.7 Trade unions already pay an approved 2.5% administration fee to the council, this forms part of our collective and contractual arrangements with the trade unions and one which this council will defend and support.

39 http://www.bbc.co.uk/news/uk-34017423 Trade Union Bill: Written evidence 45

3.0 conclusion 3.1 The City of Wolverhampton Council resolves to seek to continue its own locally agreed industrial relations strategy and will take every measure possible to maintain its autonomy with regard to facility time and the continuing use of check-off. Councillor Roger Lawrence Leader City of Wolverhampton Council October 2015

Written evidence submitted by the GMB (TUB 16) 1. GMB, Britain’s , represents over 630,000 members throughout the UK in both the private and the public sectors.

Introduction 2. GMB opposes the Trade Union Bill and related proposals set out in three consultation documents to which we have responded separately. As a TUC affiliated union we also support the evidence submitted by the TUC.

Major concerns 3. The Trade Union Bill will not enhance industrial relations, nor will it ensure better rights at work. It seeks to impose arbitrary thresholds on industrial action ballots without permitting the mechanisms needed to increase participation. GMB is of the view that greater participation in ballots and in democratic workplace structures is of benefit to everyone. It is contrary to the stated aims of this Bill that measures such as secure online and workplace balloting have been excluded. Their exclusion, and the stated intention of the government to introduce an amendment to this Bill to allow agency workers to replace striking workers, fundamentally undermine the right of working people to protect and enhance their working conditions. These measures significantly alter the balance of power in the workplace. 4. GMB believes that this Bill singles out the public sector as part of a wider strategy towards public spending cuts. It aims to quieten the political voice of the unions by ensuring that unions have limited resources and opportunities to use the political process.

The right to strike 5. GMB believes that the Right to Strike is a fundamental human right and a feature of a free and democratic society. 6. GMB are not clear what problem this Bill seeks to solve. The number of days lost to industrial action are at an historic low. If the Bill was serious about tackling participation in industrial action ballots then measures would have been introduced to allow secure online and workplace voting. 7. Taken together with measures the Government plans to introduce to allow agency workers to replace striking workers, this Bill undermines the fundamental right to strike. 8. The Bill fundamentally alters the balance of power within workplaces. This has potential to negatively impact on industrial relations. Employers and employees can only negotiate when there is a balance of power. No working person wants to take industrial action but that last resort must be available to support collective bargaining and to ensure that employers take the views and needs of their workforce into account. 9. The proposals are likely to involve breach of UK obligations in respect of International Labour Organisation standards and rights arising from the European Convention on Human Rights and the European Social Charter. GMB notes that compliance with ILO or ESC standards is not mentioned once in the Government brief Trade Union Bill: European Convention on Human Rights (ECHR) Memorandum or in the Consultation Papers. 10. The UK has been a member of the ILO since 1919 and has ratified ILO Convention No 87 on Freedom of Association and the Right to Organise (in 1949) and Convention No 98 on the Right to Organise and Collective Bargaining (in 1950). Further the UK ratified another key instrument adopted in the Council of Europe being the European Social Charter of 1961, and agreed to be bound by Article 5 (the right to organise) and Article 6 (the right to bargain collectively), including in Article 6 (4) the right to strike. 11. By restricting the scope of lawful industrial action and pickets the proposed legislation risks other kinds of protest. The proposals have clear potential to undermine the relationship between workers and their unions with employers with potential for other forms of uncontrolled disruption which may well end up in more days being lost to industrial action than is presently the case. 46 Trade Union Bill: Written evidence

Flawed consultation and a lack of impact assessment 12. The consultative process which underpins this Bill was incomplete. Three consultation subjects ran concurrently over just 8 weeks during summer holiday period. This is not in line with the normal principles of consultation relied upon by the Government. 13. No full Impact Assessment has been conducted in respect of the Bill. On the three areas which have been subject to an IA the Government’s own Regulatory Policy Committee (RPC) has deemed the measures ‘not fit for purpose’. 14. The Equality Assessment of this bill concludes that there is ‘no adverse equality impacts on any protected group’. This statement completely fails to consider the fact that 73% of trade union members working in “important public services” are women (from TUC research). For example, in the public health services, women account for 78% of staff and 80% of union members.

A violation of civil liberties 15. Civil rights organisations oppose this Bill on the basis that it violates civil liberties: “Ideological motivations of any Government are part and parcel of politics but should not imperil the protection of rights and freedoms of individuals. Yet this relatively short Bill has the potential to cause significant damage to fair and effective industrial relations in this country and would set a dangerous precedent for the wider curtailment of freedom of assembly and association” Liberty referred to in House of Commons Hansard 14.09.15 col 828

Barriers to workplace representation 16. The restrictions on “facility time” in the public sector mean the public sector will be operating with fewer freedoms than the private sector who can award facility time how they see fit. 17. Employers in the public and private sector alike value facility time because it leads to better industrial relations overall. A 2007 paper by the Department for Business, Enterprise and Regulatory Reform showed a financial benefit to employers from facility time by reducing the number of days lost to workplace injuries, dismissals and early exists. Issues that are raised and tackled early by workplace reps are issues that don’t escalate and cause disruption in the workplace. If a public sector employer values this, it is unclear as to why the government would centrally cap facility time.

The Certification Officer 18. The role of the Certification Officer is to be dramatically transformed, with new powers including the power to initiate action against a trade union even though there has been no complaint by a member. The outcome will be to diminish the independence of a hitherto important position occupied by highly respected.

Certification Officer powers 19. The new reporting requirements to the Certification Officer represent an unwarranted increase in red tape and a drain on union resources that could be better spent on representing members.

Responses on individual clauses Clauses 2 and 3 – Ballot Thresholds 20. The UK already has a heavily regulated environment of industrial action law with restrictions that have repeatedly been criticised by both the International Labour Organisation Committee of Experts and the European Social Rights Committee in the Council of Europe for failing to comply with international law. 21. BIS estimates that the combined effect of the 50% turn out and the 40% Yes vote requirements will lead to a 65% reduction in the number of days lost due to industrial action in the UK. No one wants to take strike action, it is a last resort when workplace issues cannot be resolved. Increasing the barriers to legitimate industrial action will mean that workplace issues go away. 22. GMB believes that this represents an unjustified and disproportionate restriction on the right to strike that will damage industrial relation. 23. GMB notes that the Consultation Paper and Impact Assessment on the proposed thresholds focus exclusively on the 40% threshold and do not consider the 50% turnout threshold. This ignores the practical difficulties unions face in contacting members by post in some sectors, especially where the workforce is fragmented and located at different workplaces across the sector concerned.

The damage to constructive industrial relations 24. The ability of unions to organise lawful industrial action is a key support to collective bargaining and constructive industrial relations. It ensures that employers take the views of their workforce seriously and engage in real negotiations. Trade Union Bill: Written evidence 47

25. Some of the wide ranging benefits that this approach brings in workplaces include: —— Family friendly policies. —— Flexible working. —— Policies more friendly towards disabled workers. —— Policies more friendly towards LGBT members. —— Safer workplaces. —— Innovation and Change by promoting skills and training in workplaces. —— Constructive negotiations to save jobs, particularly following the economic crisis of 2008. 26. But all of these positive outcomes depend on equality of bargaining power which the present proposals will undermine. In most instances there is no need for workers to take industrial action. Unions manage expectations of members and develop solutions to problems through the process of collective bargaining. But sometimes an industrial action ballot is required. The ballot has an important role as it concentrates the mind of the employer on the issues and demonstrates the strength of feeling amongst the workforce. In most cases the holding of the ballot is sufficient to lead to engagement and settlement. 27. When industrial action takes place it is always as a last resort and is often the only way to resolve the dispute. Postal ballots are already expensive, and the risks to the workforce and their union of strike action are very significant including deductions from wages, the risk of dismissal, and very expensive interim injunction applications. Tighter scrutiny of the right to strike could turn neutral worker opinion into favouring unofficial actions which are much harder for unions, management, and ACAS to resolve.

Escalating Disputes 28. The proposals in the Trade Union Bill will be likely to escalate and prolong disputes: —— 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. —— Where thresholds are achieved this may raise members’ expectations and may result in a hardening of the union’s negotiating position making settlement harder to achieve. —— The 4 month time limit for the ballot will encourage employers to sit out the dispute and refuse to negotiate in the knowledge that the union will have to incur the costs a new ballot. Unions will feel compelled to bring forward action in an attempt to reach settlement. —— ACAS are likely to find it harder to engage with parties and to develop settlements.

International Standards 29. As indicated above the right to strike is a fundamental human right. The right is widely recognised at an international level: 30. In the Memorandum issued by the UK Government it has attempted to argue that thresholds still comply with the Convention and in particular Article 11. The Government has attempted to read across from the case of RMT v UK, a case which concerned a ban on secondary action, to justify the proposals. The Court in the RMT case had regard to the fact that the ban on secondary action had not been amended or removed by successive Governments. This was said to reflect a broad political consensus in support of the ban. The Court therefore considered that it was appropriate to apply a wide margin of appreciation to the national government. However such broad political consensus does not arise in respect of thresholds or the Trade Union Bill as this has been fiercely disputed since the Bill was announced. 31. Further, the 50% ballot thresholds affect all strikes and the 40% ballot threshold applies to a very wide range of public sector strikes. This is not a secondary aspect of Article 11 of the European Convention on Human rights, but is primary action which, as GMB understands it, is the very substance of trade union freedom protected in Article 11. 32. GMB notes that in ILO decision 2698 (Australia) the Committee for Freedom of Association found a 50% threshold requirement alone to be excessive and likely to hinder the right to strike particularly for large enterprises, see paragraph 225 of the decision. The decision by the Government not to allow strike ballots using methods that would be likely to generate increased participation than solely by voting by post are hard to understand in this context.

Democracy & Participation 33. GMB notes that whilst thresholds are to be imposed on unions for ballots no such equivalent is proposed for politicians. Abstentions are to be taken as no votes. This may encourage disengagement with the democratic process. Take a dispute with 45% in favour of a strike, 25% against, and 30% neutral. If all those for and against the strike vote the strike will go ahead. There is a 70% turnout and a 64% majority. But if the 25% abstain the outcome will mean that the 50% per cent threshold has not been achieved. This sort of tactical abstention vote could be a real possibility where the workforce is small and the groups have a good idea of the position. 48 Trade Union Bill: Written evidence

Administrative burdens, cost and increasing red tape. 34. The red tape and increased cost of not only thresholds but of the political opt in/reporting and reporting requirements to the CO will significantly increase red tape and the cost of organisation for trade unions. 35. Union members are likely to lose out as resources are diverted to meeting arbitrary thresholds and increased training for reps and officers in order to navigate the new layers of red tape.

Wider Impact 36. GMB rejects the argument that industrial action should be restricted because it disrupts economic activity or the wider public. As the ILO Committee on Freedom of Association has reported in observation adopted in 2011 and published in the 101st ILC Session 2012 in a complaint concerning Western Australia: “By linking restrictions on strike action to interference with trade and commerce, a broad range of strike action could be impeded. While the impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”, and thus the right to strike should be maintained”

Future consultation 37. The government intends to reserve the right to add additional groups of workers to the ‘important workers’ category. GMB does not believe, that if this category comes into being, the human rights of millions of working people in the UK should be impacted without proper parliamentary scrutiny and public consultation. 38. The extension of the 40% threshold to workers involved in ancillary activities which support important public services is concerning. This will restrict the rights of many workers employed in private sector companies without adequate consultation.

Clause 4 – The voting paper 39. This has not been subject to consultation. There is no information as to how a reasonably detailed description of the trade dispute and other matters in the ballot paper is to be defined. A failure to provide such information is likely to be the basis for legal action, and in those circumstances it is important that the issue is subject to Parliamentary scrutiny.

Clause 5 – The result of the ballot 40. The notice of the ballot result to the employer and members will have to include information about whether each threshold was met.

Clause 6 – Information to be given to the Certification Officer 41. This requires that details of industrial action are to be included in the union’s annual return to the Certification Officer, including details of the ballot result. This appears to be a further step transforming the CO into a position increasingly concerned to investigate unions, their membership records and their balloting practices. This is at odds with the CO’s semi judicial role of adjudicating on internal union disputes.

Clause 7 – Notice of action 42. This requirement to give 14 days’ notice for industrial action is seen by GMB as a 14 day notice period for employers to organise agency workers to replace striking workings, we per the planned delegated legislation.

Clause 8 – Expiry of ballot mandate 43. The 4 month time limit for the ballot will encourage employers to sit out the dispute and refuse to negotiate in the knowledge that the union will have to incur the costs a new ballot. Unions will feel compelled to bring forward action in an attempt to reach settlement.

Clause 9 – Union supervision of picketing 44. The origin of the provision around picketing are based in the existing Code of Practice on Picketing. GMB sees no justification for putting this on a statutory footing. 45. Picket ‘supervisors’ would inevitably in some circumstances be ordinary trade union members: volunteers. Trade union membership is an aspect of private life and sensitive personal data under Section 2 of the Data Protection Act 1998 as well as being protected under the Employment Act 199 (Blacklisting) Regulations 2010. There are often good reasons why an individual wants to keep their trade union membership secret from employers and the police as shown by the blacklisting scandal in the construction industry. 46. The outcome for peaceful picketing is nothing to do with the stated aim of the Bill. There are already extensive criminal provisions against intimidation on the picket line. In the Carr Review the Association of Chief Police Officers said that the current legal framework was generally effective and did not seek more powers, just better guidance for the police (see pages 92 – 94 of the Review). Trade Union Bill: Written evidence 49

47. The new legislative provision targets indiscriminately unions and workers who picket peacefully, as well as those who do not. No other membership organisation which has a peaceful demonstration is required to police it as well or face dire consequences if it does not even if it is impractical to do so. This indicates the real purpose is to attack union organised industrial action across the board. 48. Further the right to picket is an aspect of freedom of assembly in Article 11 of the ECHR. No compelling reasons have been provided for these draconian measures.

Clauses 10 and 11 – Opting in to political funds and annual return to CO 49. GMB opposes the inclusion of changes to political funding within this Bill. This is direct intervention of the internal affairs of trade unions as independent and democratic organisations. 50. The longstanding convention of party funding changes being agreed on a cross-party basis has been rejected by the government. Such convention was adhered to by previous Tory governments, including the governments of Thatcher and Wilson. 51. These proposals will significantly impact on just one political party while doing nothing to regulate how private donors and companies – often with multiple shareholders – participate in politics. There is no shareholder opt in. 52. GMB members who pay 14p per week to the political fund, under these proposals, will have more hoops to jump through than millionaires who donate their personal fortune. 53. These measures will restrict unions’ rights to freedom of association and their ability to engage in political debate. The Bill changes this by individualising the process. The proposed changes will separate the member from the organisation and undermine the principle of collectivism which is essential to effective trade unionism. This runs against the Governments’ duty to respect the rights of workers and trade unions which is provided for in ILO Convention 87 Article 3: “1. Workers’ and employers organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impeded the lawful exercise therof.” 54. A three month transition period to move all existing trade union members to an entirely new system of political funding is unreasonable and completely impractical, as is the suggestion that the ‘opt in’ must be in writing in an age when people communicate by phone, online and by text message.

Clause s 12 and 13 – Facility Time 55. Clause 12 provides that public sector employers provide information about facility time and the “direct costs” of doing so thus ignoring benefits to the employer. Clause 13 provides that there be a unilateral power to the Minister to impose limits on the amount of facility time and the purposes for which it can be used. This includes a power for minsters to rewrite legislation in its application to public sector employers and also a power to “modify” collective agreements. This is a unique development and it appears that the Government is acting in breach of ILO Convention 98 and also ILO Convention 151. The Labour Relations (Public Services) Convention 1978 provides that public sector trade unions have the right to workplace facilities and that these facilities are to be the subject of collective bargaining. 56. The net effect of this will be to undermine the ability of unions to represent members at work. It will interfere with the ability of the Scottish Parliament, the Welsh Assembly, and local authorities to manage devolved services and how to engage with their workers and trade unions. This will undermine effective working between employers and unions. This will also in many cases interfere with contracts and collective agreements which have been entered into voluntarily. 57. In addition, on 6 August 2015 the Government announced that it would put forward amendments to the Bill which would prevent public sector employers from running check – off. There has been no consultation with stakeholders on this or any assessment of the impact on employment relations. This again appears to be a breach of ILO Conventions 98 and 151. These do not exempt check-off arrangements from the scope of collective bargaining. There may be some administrative burden for the employer but this is easily managed and financial costs are often met by the union.

Clauses 14 – 17 – The Certification Officer 58. These clauses layout huge changes to the power and role of the Certification Officer, turning the post into an almost investigative agency for the trade union movement. The scope of the CO to investigate – without any complaint being raised – any aspect of trade union elections, trade union political funds, trade union amalgamations, trade union membership and information is worrying and raises significant constitutional issues. 50 Trade Union Bill: Written evidence

As commented above this will undermine an important position occupied by highly respected Certification Officers. October 2015

Written evidence submitted by the Associated Society of Locomotive Engineers and Firemen (ASLEF) (TUB 17) 1. The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train driver’s union representing approximately 20,000 members in train operating companies and freight companies as well as London Underground and light rail systems. We represent 95% of train drivers in the country and have some expertise and experience of the issues under discussion in the trade union bill. 2. ASLEF fundamentally opposes the Bill. British is already the most restrictive on trade unions in the western world. Workers in the United Kingdom have fewer rights in relation to industrial action than almost anywhere else in Europe. In fact our existing legislation contravenes international laws and guidance from both the International Labour Organisation and the United Nations. 3. Any state interference in the internal affairs of a trade union is against Article 11 of the European Convention on Human Rights. The eminent labour lawyer John Hendy QC has said ‘it is unlawful for a public authority to act in a way which is incompatible with Article 11.’ 4. We would point out that the number of British workers covered by collective bargaining agreements has reduced from 82% in 1979 to around 20% today. The Bill will reduce this further. Many economists including the IMF believe that collective bargaining across the labour market is good for the economy in terms of increasing both productivity and wages. High levels of collective bargaining help reduce inequality across the economy. This Bill will therefore bad for the economy. 5. British workers have no right to strike. In fact, the government appear to want to highlight this by insisting that it is stated on ballot papers. The only protection offered to British workers who take legal industrial action is that they cannot be sacked for doing so for 12 weeks. Following this, they can be dismissed for breach of contract. All industrial action in the UK can therefore be considered a breach of contract. 6. Current UK labour law contravenes United Nations legislation. In December 1997 the UN committee which deals with the International Covenant on Economic, Social and Cultural Rights reviewed British law strike law. Despite, Britain being a signatory, they stated that “the Committee considers that failure to incorporate the right to strike into domestic law constitutes a breach of Article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike.” It therefore seems perverse to force trade unions to state that action breaches contract on ballot papers. Essentially it is repeating Britain’s failure to comply with international agreements to which it is a signatory. 7. ASLEF believes that the government should aim to reduce unnecessary administrative and bureaucratic restrictions on trade unions rather than increase them. By introducing this Bill the government is taking the UK in the opposite direction, further away from international agreements on trade union freedom with more restrictions on unions. 8. The number of days lost to industrial action is at a historic low having stood at an annual average of 12.9 million in the 1970s and just over seven million in the 1980s to less than 700,000 per year over the last 20 years. The Bill can therefore only be regarded as an unnecessary, anti-democratic and politically driven piece of legislation intended to silence the voice of working people. 9. We strongly oppose the new requirements on member participation and voting thresholds in industrial action ballots in addition to allowing the use of strike breaking agency workers. It would be irresponsible to allow the use of agency workers in safety critical industries like rail where highly specialised knowledge is required. 10. As previously stated the current balloting requirements for trade unions in the UK are extensive to the point of being onerous. The new restrictions don’t serve any real purpose other than to add to the burden on unions. In ASLEF’s view they are simply a further layer of red tape and more loopholes which will have the effect of making it easier for employers’ lawyers to try to prevent industrial action in the courts. In a recent publication ‘Protect the Right to Strike’ Professor Keith Ewing and John Hendy QC state that ‘the reality is that there is no major problem posed by industrial action in the UK – except that it is so restricted.’ 11. Provisions in the Bill to remove facility time are dubious in the extreme and may be illegal. There is a fundamental misunderstanding of the benefits facility time generates both for employers and employees. Researchers at London’s Cass Business School and Warwick Business School suggested the Bill could be “detrimental to the government’s aspirations” to improve productivity. The researchers found that the presence of workplace union representatives is associated with higher levels of productivity. Cass Professor Nick Bacon said: “Overall, the evidence suggests that both full and part-time workplace union representatives help improve performance in the public sector and that managers widely recognise this to be the case. As such, the proposed Trade Union Bill: Written evidence 51

legislation to limit the amount of time union representatives can spend on their representative duties appear unnecessary and may reduce workplace performance in the public sector.” 12. ASLEF would point out that workplaces with union health and safety representatives and a joint safety committee have half the serious injury rate of those without. Facility time for such representatives is of enormous importance particularly in safety critical industries like railways. Any reduction to available facility time, as proposed by the Bill, could therefore have very series and potentially fatal consequences. 13. We regard the Bill’s provisions with regard to picketing as totally unnecessary, disproportionate and open to misinterpretation. Like so much of the Bill, it is trying to create a set of sanctions and penalties for a problem which does not exist. The Association of Chief Police Officers say the current scope of civil and criminal law in this area is more than adequate. 14. ASLEF is very concerned about the Bill’s provision to require trade union members to opt-in to political funds. We not only regard this as an unwarranted and illegal interference in the internal affairs of a trade union but an attack on the political freedoms trade unions. 15. In its judgement on the ASLEF v UK case in 2007 European Court of Justice referred to ILO Convention 87 on Freedom of Association which gives unions the right to draw up their constitution and rules without interference from public authorities. In holding our right to expel our member the court said state interference could only be justified if it complied with the strict criteria in Article 11 (2). In the circumstances the court did not feel the interference in ASLEF’s autonomy was justified. 16. In its judgement the court also gave weight to our right to choose our members in accordance with our political aims and values, recognising that historically trade unions throughout Europe have commonly been affiliated to political parties and movements, particularly on the Left. The judgement said unions were not ‘bodies solely devoted to politically neutral aspects of the well-being of their members but are often ideological with strongly held views on political and social issues.’ Because our member’s membership of the BNP was in fundamental conflict with the union’s political objectives, we were entitled to expel him from membership. 17. Our case was the first to explicitly highlight trade union autonomy as part of Article 11. Moreover the autonomy upon which the decision was based is not restricted to exclusion on the grounds of political membership. In its judgement the ECJ said ‘trade unions enjoy their own rules concerning conditions of membership including administrative formalities and payment of fees as well as other more substantive criteria such as the profession or trade exercised by the would be member.’ 18. John Hendy QC has said this judgement from the ECJ means a union ‘has the right to decide its own fundamental values and objectives.’ He also says that the case ‘illustrates that the fundamental political model which underpins the European Court is based on a conception of democracy in which collective, participatory associations such as trade unions form an important part of citizenship.’ 19. On this basis ASLEF would argue that the provisions of the Bill in relation to political fund opt-ins should be considered as an over-extension of the state into the internal affairs of a trade union. This excessive reach could similarly be applied to the proposed new role and powers for the Certification Officer as well as the requirement for union annual returns to include details of political expenditure. 20. The Certification Officer is currently an important and respected position which issues certificates of independence and deal with complaints from trade union members about breaches of union rules. 21. The new powers office will turn it into a political attack dog with unlimited powers to investigate the internal affairs of unions even though there has not been a complaint from a member. In addition unions will be expected to pay for all of this. It’s a potentially reckless undermining of a valued public office and, as stated above, may be illegal. 22. To conclude we believe this Bill has been drafted on the basis of ideology and not evidence. There isn’t a problem with trade unions in the UK. This Bill will add significantly to the already onerous administrative burdens on unions. The mantra seems to be cut red tape for business but increase it for unions. 23. The Bill will be counterproductive and problematic at every level and could lead to strife. It’s an attack on the political and industrial freedoms of trade unions. It will also be bad for the economy. Despite what some think good industrial relations are important to a successful economy. The Bill is regressive and irrational. October 2015

Written evidence submitted by Community (TUB 18)

1. introduction 1.1 Community is the modern union for a changing world. We believe that by working with employers, not against them, we can deliver a decent standard of living for our members and a better employment environment. Community has a long and proud history of working constructively with employers, often assisting them to overcome serious challenges through working in partnership and taking difficult but necessary decisions. 52 Trade Union Bill: Written evidence

1.2 An excellent example of the benefits of this approach can be taken from the response to the Tata Steel plant in Redcar being mothballed and put up for sale in 2010. Community worked closely with the management of the plant to minimise the impact of the closure, helping to prevent compulsory redundancies and retaining contact with displaced workers so that the workforce could be rebuilt should a buyer be a found. This contribution helped secure a new owner and investment in the plant from Sahaviriya Steel Industries (SSI), a Thai firm that offered the hope of bringing steel making back to Teesside. Since SSI took over the plant, Community has worked with the company to modernise the terms of employment in an industry that witnessed little structural change around working conditions for many years. This was a challenging process, but as we now reach the other side of this endeavour the union and SSI can feel vindicated by the approach we have taken together. 1.3 Community, and no doubt our sister unions across the movement, can provide countless examples of the positive contribution trade unions make every day and the vital role we play providing employers with highly- skilled, motivated and productive workers. However, we should be honest and recognise that the image of the trade union movement is not generally positive. Responsible trade unions are a force for good in the workplace and in communities. On a daily basis trade unions are making workplaces safer, smarter and stronger – helping businesses compete globally, delivering public services more efficiently and encouraging long-term thinking. Our problem is that while this approach is recognised by those involved it does not reach beyond a very narrow section of industry and society more generally. 1.4 Trade unions need to change and evolve to be relevant and meet the needs of their members and the modern world of work: we fully accept that. We need to moderate the language we use, our leaders need to be more representative of the members they serve, and we need to promote the work we do with employers and be proud of the successes we share – helping people reach their potential in good quality work and enabling businesses to flourish and prosper. Trade unions are not the enemies of business or society; responsible trade unionism has a crucial role to play in the UK’s economic future. Yes, trade unions have a duty to represent their members’ interests, but responsible trade unions recognise that their members’ interests often align with those of a strong and sustainable business. 1.5 In Community’s view the Trade Union Bill is unnecessary and it is counter-productive; it feeds into a false narrative that trade unions are bad, employers are good, and the interests of the two parties are diametrically opposed. The Trade Union Bill is a bad piece of legislation that places far too much power in the hands of employers at the expense of workers and will severely damage the finely-balanced relationships between trade unions and business. Community opposes the Bill.

2. trade Union Bill: Industrial Action 2.1 The Bill proposes various measures to make it harder, or near impossible in some cases, for working people to protect themselves by exercising their fundamental human right to withdraw their labour. The measures advocated will inevitably lead to a serious imbalance of power in the workplace with employers able to unilaterally impose changes to terms and conditions and working practices without taking the views of their workforce into account. This inequality of power will be hugely damaging to constructive industrial relations, and the partnership model in particular, and will demoralise employees leading to increased staff turnover, a decline in workplace productivity and greater inequality. 2.2 The government’s contradictory messages on turnout for industrial action ballots are particularly difficult to digest. On the one hand the government is making a case that introducing new thresholds on ballots will boost democracy in the workplace. On the other hand the government continues to refuse to allow trade unions to introduce electronic balloting to increase participation and boost turnout. In Community’s view this is a completely nonsensical position and the only reasonable conclusion is that the government’s proposals are ideological and designed to stop trade unions representing their members’ interests. 2.3 It’s hard to find any compelling evidence, reason or public clamour for the introduction of such draconian measures on industrial action as are contained in the Bill. The number of working days lost due to labour disputes in 2014 was 788,000, a long way from the more than 7 million days lost each year throughout the 1980s. For our own part Community has not called upon any of our members to take strike action in more than a year, and we have done so in only a handful of occasions since 2010. It seems the Trade Union Bill is designed to remedy a problem that does not exist, and we would suggest the enormous amount of parliamentary time this Bill will devour would be better used legislating on some of the extremely pressing priorities facing the nation. 2.4 It is important to stress that, regardless of what the media might say, responsible trade unions do not take strike action lightly. Industrial action is not just another negotiating tool; it is the very last resort deployed only when discussions have broken down and ultimately it represents the failure of industrial relations. Going on strike is not a good thing for anyone; businesses are obviously disrupted but it’s often overlooked that the workers taking action are not paid when they are taking that action. Workers do not sacrifice their wages without good reason; they do so only when they feel they have been unfairly treated and have no other avenue left open to pursue their legitimate grievance. 2.5 It should also be noted that, while it is an undesirable outcome, in some cases industrial action, or the threat of that industrial action, can lead to equitable, mutually acceptable and even innovative solutions to Trade Union Bill: Written evidence 53

industrial disputes. Community has an excellent recent example of this taken from a situation that took place earlier this year involving our members employed at Tata Steel. The issue related to future funding of the final salary British Steel Pension Scheme, one of the best run and most mature pension schemes in the country with more than 143,000 members. The scheme is hugely valued by the workforce but also relied on by the company for decades as a vital tool to manage succession and restructurings. Regrettably, after many months of intensive discussions to address a funding deficit talks broke down and the company moved to close the scheme to future accrual. Understanding the strength of feeling throughout the membership Community, along with the other unions present in Tata Steel, proceeded to ballot our members (in excess of 6,000) for industrial action. 2.6 The results of the ballot for industrial action were 88% voting in favour of strike action and 96% voting in favour of action short of strike action, on a turnout of 76%. Confronted by these overwhelming results the company acknowledged they had misjudged the mood of the workforce and returned to the negotiating table. Further discussions led to a new proposal on pensions; the scheme would remain open and would become an innovative hybrid pension scheme combining elements of final salary and elements of defined contribution pension arrangements. This new proposal was put to a ballot of the members, recommended by the trade unions, and subsequently endorsed by a huge majority. While it is regrettable that the eventual settlement could not have been reached without recourse to the industrial action ballot, it led directly to a fair and innovative, mutually acceptable agreement, and industrial action was avoided. 2.7 Community would also like to stress that allowing agency staff to be used to break strikes is a pernicious proposal that will ultimately divide families and communities. There is little doubt that agency workers can provide some important flexibility to businesses, working closely with employers and direct employees to ensure workforce cohesion and enabling businesses to cope with fluctuating market conditions. Our experience in traditional industries such as steel is that agency workers tend to have extremely close links with direct employees; they come from the same tight-knit industrial communities and agency workers are often the sons and daughters of those directly employed. To ask those workers to cover the duties of family members and friends taking industrial action would be grossly unfair and would inevitably divide loyalties and damage community cohesion.

3. trade Union Bill: Political 3.1 Regarding the proposed changes to restrict the use of trade union political funds, we are almost at a loss for words. The new requirements to make trade union members opt-in to paying the political levy every five years, as well as the onerous new requirements for reporting campaigning activities to the Certification Officer, are so nakedly party-political and opportunistic that they should be treated with the contempt they deserve. It is perverse that a government that has made so much of reducing red tape and regulation is so determined to ignore that principle when it comes to organisations that collectively represent 6.4 million citizens. Already trade unions have to ballot their members every 10 years to retain a political fund, and political funds are subject to extremely stringent regulation with stiff penalties attached to their misuse. The proposals are designed to attack the finances of the Labour Party, pure and simple. It is shameful that the government is seeking to introduce these changes without a cross-party deal on party funding while continuing to turn a blind eye to massive donations from big business, opaque ‘clubs’ and wealthy individuals seeking influence.

4. community’s position 4.1 The UK economy faces enormous challenges in this era of globalisation and in the wake of recession at home and overseas. Now, more than ever, the UK needs government, business and trade unions working together to deliver a more sustainable and productive economy that can continue to compete on a global basis. Government needs to recognise that trade unions are not a problem that needs to be resolved; trade unions have to be an integral part of any strategy that works to deliver long-term economic and inclusive growth. Government should be promoting the development of strong working relationships between businesses and trade unions to deliver the productivity improvements, innovative working practices, safer workplaces, and highly skilled and motivated workers that our economy and society so desperately needs. Government should not be undermining those relationships as the Trade Union Bill so clearly seeks to do. The Trade Union Bill is unnecessary and extremely damaging to constructive modern industrial relations – Community condemns the Bill in its entirety in the strongest possible terms. 4.2 Community would like to place on record our full support for the TUC’s detailed submissions on the three areas the government has consulted on in connection with the Bill: ‘Ballot thresholds in important public services’, ‘Hiring agency staff during strike action: reforming regulation’, ‘Tackling intimidation of non- striking workers’. October 2015

Written evidence submitted by Vera Baird QC, Police and Crime Commissioner for Northumbria (TUB 198) I wish to make the following submission as part of the Public Bill Committee consultation for the Trade Union Bill in relation to the following three areas: 54 Trade Union Bill: Written evidence

(a) Ballot thresholds in important public services. (b) Hiring agency staff during strike action: reforming regulation. (c) Tackling intimidation of non-striking workers. Whist there are many important issues raised in (A) and (B), as Police & Crime Commissioner for Northumbria, I wish to submit comments on section (C) and the impact on policing. The proposals in the Bill would result in police officers having to spend more time on issues that should be between trade unions and their members. Trade Unions have a reputation of professionalism, realism and the measures represent a serious and unjustified attack on the civil liberties of trade unions and their member. As the TUC rightly state, it is not legitimate for government to restrict the human rights of UK citizens on the basis of unsubstantiated allegations and it is not the role of the police to deal oversee the democratic rights of Trade Unions. The law as it currently stands is regulated to govern picketing or protests by trade unions and their members, this includes public order, highways protections from harassment and criminal damage. There is no reason for the government to consider introducing a criminal offence of intimidatory activities on a picket line when such an offence already exists in Section 241 of the Trade Union and Labour Relations (Consolidation Act) 1992. By introducing additional criminal offences, police resources will be further stretched. As Police & Crime Commissioner for Northumbria, I want police officers to be protecting our communities and dealing with the issues that local residents have stated they want to see addressed through the Police & Crime Plan. Since 2010, the Government has reduced the grant to Northumbria by nearly £120 million – this has resulted in a reduction of 16% in the number of police officers on the beat and 25% of specialist civilian staff roles have been deleted. To create further Trade Union bureaucracy would involve police officers and staff being taken away from front line policing. Question 5 relates to views on the proposals to require unions to publish their plans. According to the consultation documents, unions will be required to provide copies of the picket and protest plans to the employers, the police and the certification officer. If it was to be mandatory for the police to receive this information, it would result in extra time being taken up to collate, review and respond to the plans. This work would be fruitless as most occasions see trade union protest as being peaceful – yet police would have to be involved in the process. This is all based on assumptions as the government has not explained why unions should be required to report on their intended use of social media during the course of a dispute and what exactly the police are expected to do with the information. It is not the role of the police to monitor the campaign activities of trade unions on social media. However, if a defamatory comment has been posted and it has been reported to the police, I would then expect the police to take action. By involving the police in such activities, it will create significant costs and administrative burdens for police forces. In conclusion, I want local police officers out on the streets of Northumbria doing what they do best – protecting and supporting our communities, not arresting someone because unions haven’t given two weeks’ notice if they intend to use a loudspeaker or carry a banner during a strike. The world of Twitter, Facebook and blogs is to allow people to express their opinions freely – not to have them monitored by the police. October 2015

Written evidence submitted by the Royal College of Nursing (TUB 20) With a membership of around 425,000 registered nurses, midwives, health visitors, nursing students, health care assistants and nurse cadets, the Royal College of Nursing (RCN) is the voice of nursing across the UK and the largest professional union of nursing staff in the world. RCN members work in a variety of hospital and community settings in the NHS and the independent sector. The RCN promotes patient and nursing interests on a wide range of issues by working closely with the UK Governments, the UK Parliaments and other national and European political institutions, trade unions, professional bodies and voluntary organisations. The RCN is a politically neutral organisation.

Summary —— The RCN opposes the Trade Union Bill, which if enacted, would have serious consequences for productivity and staff morale in the NHS and it therefore poses a threat to patient care. —— The RCN believes clauses 12 and 13 seek to solve a problem that does not exist and is calling for them to be rejected from the bill. —— Independent evidence funded by the RCN shows that facility time for union representatives is linked to increased productivity, crucial in the NHS for delivering high quality, cost effective care. There is therefore an economic case for retaining the current arrangements. Trade Union Bill: Written evidence 55

—— Facility time is beneficial to the safety of practice environments, staff welfare and consequently, to patients. The RCN is warning that clauses 12 and 13 may have unintended consequences for patient safety. —— The RCN and all other trade unions invest in their representatives to bring skills, knowledge and experience to the workplace and to facilitate effective partnership working. This is a cost effective way of developing practice and managing organisations. Alternative provision would increase costs for employers and, therefore, the tax payer. —— Employers report good working relationships with trade union representatives and there is a clear feeling among employers and trade unions alike that this bill will do little to improve industrial relations. —— Evidence shows that turnover in organisations where there are no union representatives is three times higher than in those with union representatives, equating to an annual saving for the NHS of over £100 million on recruitment costs. Clauses 12 and 13 could lead to unnecessary costs to the NHS and are particularly concerning at a time when the health service is struggling to balance the books.

Union facility time The RCN believes clauses 12 and 13 must be removed from the bill Clauses 12 and 13 propose changes to the current arrangements for union facility time under the Trade Union and Labour Relations (Consolidation) Act 1992. Clause 12 would introduce a power for the Minister to make regulations requiring a relevant public sector employers to publish information relating to facility time taken by union representatives. Clause 13 would create a reserve power whereby the Minister may make regulations to impose a cap on the percentage of facility time that trade union representatives are allowed for carrying out their duties. Union facility time is beneficial to productivity, safety, learning and development and staff welfare, which in turn affect patient outcomes and staff morale, and are therefore closely linked to patient safety. At a time when one in four healthcare staff are considering leaving the health service, the role of trade unions could not be more important. Independent research commissioned by the RCN40 shows a positive relationship between union representation and organisational performance outcomes. The link to productivity demonstrates the economic case for retaining the current arrangements and the RCN is concerned that any moves to cap union facility time may lead to employers having to make alternative provision, which could prove costly to the taxpayer. Furthermore the research shows that staff turnover in organisations where there are no union representatives is three times higher than in those with union representatives, equating to a saving for the NHS of over £100 million a year in recruitment costs. In a large NHS teaching hospital, annual savings are estimated to be £1,190,625 for all Agenda for Change staff. The RCN is warning that if enacted, clauses 12 and 13 may lead to a reduction in facility time, threaten productivity and potentially impose unnecessary costs on the NHS at a time when trusts are struggling to balance the books. The RCN believes the clauses seek to solve a problem that does not exist and should be rejected.

Employers’ perspectives Employers report excellent working relationships and a high level of trust in union representatives41 and employers’ views outlined below support this. South Tees Hospitals NHS Foundation Trust: “The RCN’s role in a case of excellent partnership working was formally recognised at the South Tees Star Awards ceremony on 18 September. Senior RCN Officer Sandra Bullock was part of the IMproVe (Integrated Management and Proactive Care for the Vulnerable and Elderly) project team, which won the Chairman’s award for its role in smoothly facilitating a radical restructure of community services.” University College London Hospitals: “The trade union partnership at our Trust is chaired by an experienced nurse and highly respected RCN member. Given current and forecast challenges facing the NHS, the quality of partnership we achieve will be fundamental to the patient care our staff are motivated and enabled to provide. Thus elements of the Bill that would confine trade unions’ ability to engage with us are widely viewed by NHS employers as potentially undermining of the Government’s health policy – in restricting the transformation we are keen to drive to achieve the Five Year Forward View.”

40 http://www.rcn.org.uk/__data/assets/pdf_file/0009/640449/RCN-WERS-briefing.pdf 41 Ibid. 56 Trade Union Bill: Written evidence

Nottingham University Hospitals NHS Foundation Trust: “The Trust believes that recognised trade unions have a vital role in the development and consistent application of employment practice and provide valuable and ongoing feedback regarding the concerns and needs of the workforce. The Trust restates therefore the commitment to constructively engage with staff representatives to support the provision of ever better standards of care to patients.” West Suffolk NHS Foundation Trust: “Suffolk Community Health Services transferred back under the ownership of the NHS on 1st October 2015. West Suffolk NHS Foundation Trust with Ipswich Hospital and Norfolk Community Health and Care working in a Provider Consortium are now responsible for running services. This was a complex transfer of staff (TUPE) which required careful consultation and communications. Our Trade Union partners mainly RCN, UNISON and CSP were critical to this process. They acted as a sounding board for the Mobilisation Team and an assuring arm for the staff. I can safely say that we are on day five of the new service and although with many new arrangements there have been snags the continued conversations with Trade Unions has meant they are have not developed into significant problems which may have affected services we provide to the people of Suffolk.” The Chartered Institute for Personnel and Professional Development: “CIPD research with employers and consultations with its own members show that employer relationships with trade unions are generally good. Therefore the CIPD has urged the government and organisations to build a better dialogue with their workforces and consider alternative approaches…”

Government research into union facility time Research undertaken by the Department for Trade and Industry (DTI) in 2007 echoes the findings of the RCN’s recent research, based on analysis of the 2004 Workplace Employment Relations Survey (WERS)5 , which found cost savings associated with trade union representation, including that trade union activity is associated with: —— lower voluntary exit rates, saving £72-£143 million annually in recruitment costs;42 —— lower dismissal rates, saving £107-£213 million annually in recruitment costs; —— lower rates of employment tribunals, saving the Government £22-£43 million annually; —— lower rates of workplace related injuries, saving employers £126-£371 million annually, and; —— lower incidences of workplace-related illness, saving employers £45-£207 million annually. The RCN calls on the public bill committee to consider this evidence in the context of the current financial state of the NHS, serious concerns about recruitment and retention of staff and safe nurse staffing levels, and remove clauses 12 and 13 from the bill.

Further information RCN response to BIS consultation on ballot thresholds in important public services: https://www.rcn.org. uk/__data/assets/pdf_file/0006/640356/47.15-ballot-thresholds-in-important-public-services.pdf RCN response to BIS consultation on hiring of agency staff during strike action: https://www.rcn.org.uk/__ data/assets/pdf_file/0003/640362/47.15-Hiring-agency-staff-during-strike-action.pdf RCN response to BIS consultation on tackling intimidation on non-striking workers: http://www.rcn.org.uk/ support/consultations/responses/tackling-intimidation-of-non-striking-workers Independent research into the economic benefits of trade union facility time in healthcare workplaces: http:// www.rcn.org.uk/__data/assets/pdf_file/0009/640449/RCN-WERS-briefing.pdf RCN second reading briefing on the Trade Union Bill: http://www.rcn.org.uk/__data/assets/pdf_ file/0006/640464/Trade-Union-Bill-Commons-Second-Reading-briefing.pdf October 2015

Written evidence submitted by K D Ewing, Professor of Public Law King’s College London (TUB 21) CONSTITUTIONAL IMPLICATIONS OF THE TRADE UNION BILL

Introduction 1. The Trade Union Bill was published on 15 July 2015. It was accompanied by proposals to amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003, as well as various

42 http://webarchive.nationalarchives.gov.uk/+/http:/www.berr.gov.uk/files/file36336.pdf Trade Union Bill: Written evidence 57

consultation documents. A statement by the Minister for Business and Enterprise shortly thereafter proposed to end the use of the check off in the public sector. 2. Taken together, it appears that the package – of which the Bill is a large part – is designed to —— reduce the effectiveness of public sector trade unions; —— undermine the financial relationship between trade unions and the Labour party, and thereby weaken the Labour party; and —— restrict the freedom of expression of trade unions in relation to picketing, protest and leverage. 3. In apparent pursuit of these objectives, the Bill contains proposals that will impose new restrictions on the right to organise, the right to workplace representation, and the right to bargain collectively. It also introduces new restrictions on both the right to strike and trade union political freedom, while exposing trade union administration to eye-watering levels of State supervision. 4. In drawing the Public Bill Committee’s attention to a number of the constitutional implications of the government’s proposals, it is to emphasised that the provisions of the Bill are to be seen in the context of a system in which trade unions are already very highly regulated, mainly as a result of a number of restrictions introduced by governments between 1979 and 1997.

Rule of Law 5. The rule of law is widely understood to be one of the core principles of the British constitution: indeed according to Lord Hope of Craighead, it is the ‘ultimate controlling factor on which our constitution is based’.43 The principle is acknowledged in the Constitutional Reform Act 2005, s 1, but is not defined. Addressing this latter provision in 2007, however, Lord Bingham said that The existing principle of the rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations. I do not think this proposition is contentious.44 6. The Bingham proposition applies to ILO Conventions ratified by the United Kingdom as it does to all other treaties. The United Kingdom has ratified all eight core ILO Conventions, and at least four Conventions dealing with freedom of association. Indeed the British government has recently reaffirmed ‘the commitment to effectively [implement]’ several of the Conventions ratified by the United Kingdom, including those relating to freedom of association.45 It was the Thatcher government that ratified ILO Convention 151, which is considered below.

ILO Convention 87 7. Article 3 of ILO Convention 87 provides that (1) Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. (2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. Also relevant is Article 11, which provides that ‘Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise’. The government is failing in this latter duty by proposing measures that compound existing concerns about Article 3. 8. Convention 87 has been held by both the supervisory bodies to include the right to strike.46 The ILO supervisory bodies accept that certain limits may be imposed on the right to strike, including procedural requirements of various kinds. In relation to ‘the quorum and requisite majority for taking strike decisions’, however, the Committee of Experts has explained: In many countries legislation subordinates the exercise of the right to strike to prior approval by a certain percentage of workers. Although this requirement does not, in principle, raise problems of compatibility with [Convention 87], the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice… If a Member State deems it appropriate to establish in its legislation provisions which

43 R (Jackson) v Attorney General [2005] UKHL 56, para [107]. 44 Lord Bingham, ‘The Rule of Law’ [2007] 66 Cambridge Law Journal 1. 45 EU Korea Free Trade Agreement, art 13.4: ‘The Parties reaffirm the commitment to effectively implementing the ILO Conventions that Korea and the Member States of the European Union have ratified respectively’. The agreement is between the EU and its member states on the one hand and Korea on the other. 46 See B Gernigon, A Odero and H Guido, ‘ILO Principles Concerning the Right to Strike’ (1997) (1998) 137 Int’l Lab Rev 441. For current controversy, see J Bellace, ‘The ILO and the Right to Strike’ (2014) 153 Int’l Lab Rev 29. 58 Trade Union Bill: Written evidence

require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level.47

9. The Bill contains two thresholds to which these established principles apply (clauses 2 and 3): the requirement in all sectors that 50% of those affected should vote, and the additional requirement in some sectors that at least 40% of those eligible to vote should do so in favour of the action. In assessing the compatibility of these thresholds with ILO standards, the Committee’s attention is drawn to a long-running complaint against Bulgaria, where it is understood that the law permits industrial action only if it has the support of a majority of those eligible to vote (that it is to say 50% plus 1). Trade unions in Bulgaria complained that these statutorily imposed ballot thresholds were inconsistent with ILO Convention 87, and the Committee of Experts agreed, rejecting the Bulgarian government’s claim that its strike ballot threshold was ‘liberal in character’, and ‘democratic’ in approach’.48

10. The ILO Committee of Experts pointed out that ‘account should only be taken of the votes cast’, while any ‘required quorum and majority should be fixed at a reasonable level’.49 Neither requirement being met, the Bulgarian government was urged to change the law ‘in order to bring it into closer conformity with the principles of freedom of association’.50 That request has been repeated on several occasions since. 51 In determining whether the Trade Union Bill’s required quorum and majority [are set] at a reasonable level’, it may be necessary to take into account not only the categories of workers to which the new thresholds will apply (‘important’ though not ‘essential’ public services as defined by the ILO supervisory bodies), but also whether the voting method (mandatory postal voting) is best calculated to ensure the participation necessary for the thresholds to be met.

Ballots and strike-breakers 11. In determining whether the thresholds are reasonable, it may be necessary in addition to take into account the consequences of the ballot. Even though the high thresholds are met, the government also proposes that employers should be free to use agency workers as strike-breakers in lawful disputes. So far as the compatibility of this imminent change to the law with ILO Convention 87 is concerned, it will be noted that in its General Survey in 2012, the ILO Committee of Experts explained that:

The Committee considers that provisions allowing employers to dismiss strikers or replace them temporarily or for an indefinite period are a serious impediment to the exercise of the right to strike, particularly where striking workers are not able in law to return to their employment at the end of the dispute.52

12. The foregoing passage reinforces a similar passage in an earlier General Survey (1994) in which it is said that:

A special problem rises when legislation or practice allows enterprises to recruit workers to replace their own employees on legal strike. The difficulty is even more serious if, under legislative provisions or case-law, strikers do not, as of right, find their job waiting for them at the end of the dispute. The Committee considers that this type of provision or practice seriously impairs the right to strike and affects the free exercise of trade union rights.53

13. Similarly, in a complaint against the , where temporary replacements are permitted, the Committee on Freedom of Association has said that ‘if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights’.54 This is precisely the situation that the government will permit by revoking regulation 7 of the 2003 regulations.

14. It is not formally proposed by the government that workers replaced by agency strike-breakers will be stopped from returning to work. There are nevertheless two points to address here. The first is that (with some exceptions) the supervisory bodies have made it clear that the use of replacement labour during a strike is itself a threat to the right to strike, even if workers are entitled to return to work at the end of the dispute. And secondly, under the government’s current proposals there is no guarantee that workers will ever be able to return to their jobs, as employers will be able to prolong disputes indefinitely by the use of agency workers, who may be engaged to undercut as well as replace striking workers.

47 See Gernigon, Odero and Guido, above, where this passage from the 1994 General Survey is reproduced. 48 ILO, Committee of Experts, Observation Adopted 1998 (Bulgaria) (ILO, 1999). 49 Ibid. 50 Ibid. 51 See most recently, ILO, Committee of Experts, Observation Adopted 2014 (Bulgaria) (ILO, 2015). For discussion of a recent case from El Salvador to similar effect, see A Bogg, ‘Case No. 2896 El Salvador CFA Complaint’. (2015) 1 International Case-Law (forthcoming). 52 ILO, General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice and a Fair Globalisation, 2008 (ILO, 2012), para 52. 53 See Gernigon, Odero and Guido, above, where this passage is reproduced. 54 ILO, Committee on Freedom of Association, Report No 284, Case No 1523 (United States) (ILO, 1992). Trade Union Bill: Written evidence 59

ILO Conventions 98 and 151 15. So far as relevant, ILO Convention 98 provides that: Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. 16. In view of the nature of the attack on public sector trade unions in particular, the corresponding provisions of ILO Convention 151 are also engaged. So far as relevant, the provisions of the latter include – Article 6 1. Such facilities shall be afforded to the representatives of recognised public employees’ organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work. 2. The granting of such facilities shall not impair the efficient operation of the administration or service concerned. 3. The nature and scope of these facilities shall be determined in accordance with the methods referred to in Article 7 of this Convention, or by other appropriate means. Article 7 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters. Article 9 Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions. 17. Various provisions of the Bill, as well as the subsequent announcement by the Minister for Business and Enterprise, appear to breach these provisions in a number of ways. So far as the Bill is concerned, the concern here relates to the power given to ministers in clause 13 to rewrite the terms of collective agreements. So far as I am aware, this is the first time in British history that a government has taken the power to interfere with an autonomous process in this way, and to act so transparently in breach of its duty to promote collective bargaining. 18. So far as the minister’s announcement is concerned, this amounts to a prohibition on the right to bargain about check off arrangements. In a long-running case before the Committee of Experts from Congo, it was reported that ‘the deduction of trade by employers and their transfer to the unions is not a matter that should be excluded from the scope of collective bargaining’. The Committee requested the Government ‘to indicate whether the abolition of the check-off system in 1991 has led to such an exclusion’.55

Constitutional Standards 19. Although the rule of law is one of our most cherished constitutional principles and practices, there are of course many others, several of which various provisions of the Bill also challenge. But before moving on to consider some of these in more detail below, it is clearly important that governments comply with the letter and spirit of their legal obligations, particularly where – as in the case of ILO Conventions – they have so recently renewed their vow to do so. The commitment made in the EU-Korea FTA is likely to be repeated in other FTAs to which this country is a party. 20. It remains to be seen of course whether the ILO supervisory bodies agree that any or all of the various provisions of the Bill referred to above meet the government’s various ILO obligations. But if this is a matter about which the government is confident, it will have no hesitation in undertaking now to repeal any of the offending provisions of the Bill once enacted, should the ILO Committee of Experts take a different view. Nor will it object to amendments designed to ensure that the powers in the Bill must be exercised consistently with these obligations.

Principle of Liberty 21. It is a fundamental principle of law in this country that people are free to go about their business without being stopped by the police, unless they are suspected of having committed an offence, in which case they

55 ILO, Committee of Experts, Observation Adopted 2010 (Congo) (ILO, 2011). More recently: ‘The Committee hopes that the current reform of the will provide the opportunity to ensure that the question of the deduction of trade union dues by employers and their transfer to trade unions can be included in the scope of collective bargaining ILO, Committee of Experts, Direct Request Adopted 2013 (Congo) (ILO, 2014). 60 Trade Union Bill: Written evidence

may be arrested. Indeed so important is this principle that it was regarded as a ‘constitutional’ principle by a Scottish court.56 At common law, the police have no right to stop, detain or search individuals, though there are a number of statutes that provide clear exceptions to this. The bottom line (by way of example), nevertheless, is that ‘her refusal to give her name, which however irritating to the police was entirely lawful’.57 22. It is important fully to comprehend what is being proposed by the Trade Union Bill (clause 9), quite apart from the legitimate concern about armbands, badges and the like: —— A picket supervisor engaged in lawful activity (indeed in Convention protected activity) may be required by a police constable (whether or not in uniform) to produce a written document (the letter of authorisation); —— It will be necessary for this purpose for the police officer to stop and detain the individual, for as long as it takes for an exchange to take place, for the individual to produce the letter, and for the letter to inspected by the officer; —— The demand may be made by the police officer even though the individual in question has not committed a criminal offence, and is not suspected of having committed an offence. 23. Failure to provide the letter of authorisation is not an offence, but there is no right on the part of the supervisor to ignore the constable’s demand, meet it with a testy reprove, and move on. This is because failure to provide the letter of authorisation will have legal consequences, in the sense that the picketing may thus be rendered unlawful and actionable at the suit of the employer. In giving the police the power to demand to see the letter of authorisation, the police are in effect being used as agents of the employer for the purposes of enforcing the civil law, not the criminal law. This is quite unusual. 24. Moreover, it is striking that there are no formalities or safeguards to be complied with when the demand is made to see a letter of authorisation. This contrasts with the stop and search powers in the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000.58 In these cases the police officer may be required to provide: —— documentary evidence that he or she is a constable, if the latter is not in uniform; —— his or her name and the name of the police station to which he or she is attached; —— the object of the proposed search; —— the reasons for using the power; and —— a record of the search after it has taken place. An individual stopped while engaged in lawful and Convention protected activities might reasonably expect to have at least the same level of procedural courtesy as someone stopped while suspected of criminal or terrorist-related activities.

Churchill Convention 25. An altogether different concern relates to clause 10 (the political levy). In the 1940’s, Sir Winston Churchill said that: it has become a well established custom that matters affecting the interests of rival parties should not be settled by the imposition of the will of one side over the other’.59 A few years later Quinton Hogg (later Lord Chancellor in Thatcher governments) said that: ‘it is repugnant to the feelings of all decent people … to use the power of a Party majority in the House of Commons to force a division on something which is designed solely to do political damage to their opponents about a controversial matter concerning the machinery of election and party administration’.60 26. This convention has been accepted and applied in recent years, and was generally followed during the Labour governments between 1997 and 2010. The major reform to party funding introduced by the Political Parties, Elections and Referendums Act 2000 (during a period of Labour government) was the product of a report of the Committee on Standards in Public Life, to which all the major political parties made submissions. It is notable that in their evidence to the latter Committee, the Conservative party said that The question of trade union funding of parties is not of direct concern to the Conservative Party. We recognise the historic ties that bind the trade union movement with the Labour Party.61 One wonders what has changed and why. But I am not aware that the Labour party has agreed to the political levy provisions of the Bill.

56 Jackson v Stevenson (1879) 2 Adam 255. 57 R (Laporte) v Gloucestershire Chief Constable [2006] UKHL 55, para [55]. 58 See Home Office, Police and Criminal Evidence Act Code A (2013), and the accompanying Code on the use of stop and search powers under the Terrorism Act 2000. For Scotland, see Police Scotland, Know Your Rights [nd]: http://www.scotland.police.uk/ assets/pdf/keep_safe/know-your-rights. 59 HC Debs, 16 February 1948, col 859. 60 HC Debs, 15 December 1949, col 2990 (opposing the annual disclosure of political party accounts). 61 Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom, Cm 4057-1, 1997, p 238. Trade Union Bill: Written evidence 61

27. More recently, the convention is to be seen operating in the inquiry conducted by the Committee on Standards in Public Life in 2011.62 On this occasion (under a Coalition government), the recommendations of the Committee were not implemented, mainly because the political parties were unwilling to accept them. Consistently with the spirit of the Churchill convention, the package collapsed. It is true of course that the latter Committee recommended the introduction of opting in to trade union political funds, to replace opting out. But the Committee made clear that this was part of a package that was to be implemented in full, including caps on the donations to all parties, and the introduction of limited public funding to meet the shortfall of private funding that would be caused. 28. This is not to claim that the Churchill convention should be regarded as giving one party a veto over all changes to party funding and election administration. But there would have to be strong and compelling reasons to justify a partisan attack on the opposition, undertaken unilaterally by the party of government. One possible justification would be that the existing regulatory framework (where one exists) is ineffective. But this is self-evidently not the case here, and would in any event invite only a proportionate response to address an identifiable mischief. Many have looked for evidence, but few have been able to provide it: ‘He [Mr Robert Carr] thought that he might be able to supply cases of specific cases [of abuse relating to opting out of the political levy] if given the time – an expectation apparently not fulfilled’. (Royal Commission on Trade Unions and Employers’ Associations, 1965-68, Report, Cmnd 3623, para 923). ‘(Frank White MP) … have you any evidence at all to put before this Committee that that people are paying a political levy unwillingly? (Dr James McFarlane, EEF) Not anything I think you would recognise as evidence, no’. (HC 243-i (Select Committee on Employment, 1983-84). ‘We have received no evidence to suggest that the legislation is not working satisfactorily, and no case has been made out for any reform. We do not propose any change in the law in this respect’. (Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom, Cm 4057-1, 1997, para 6.23).

Rule against Bias 29. Altogether different again are the very important provisions relating the Certification Officer, concerns about which have been largely inaudible amid the din relating to ballots, picketing and political funds. The Certification Officer is a state official, the office having been created in 1976 as a low-key administrative position (albeit one occupied in the past by distinguished people). The principal responsibility when the office was created was to issue certificates of independence to trade unions that met the statutory test of independence. Since then, however, the Certification Officer has acquired a number of other roles, and is something of a constitutional curiosity, unusually combining executive, quasi-judicial and rule-making powers. Once a constitutional curiosity, under the Bill the CO will become a constitutional anachronism. 30. The role of the Certification Officer has gradually changed so that beneath the benign title of the office has developed what is now openly referred to as the ‘trade union regulator’ The Secretary of State appoints the Certification Officer, with a duty only to ‘consult’ ACAS before doing so.63 There are no prescribed qualifications for appointment to this office (such as independence of government or party), and there is no guarantee that people appointed in the future will not be fully signed up to the department’s ideological agenda. This is extremely important given the content of the Bill, which include extensive new powers of inspection, investigation, and imposition of penalties. The CO is a position that ought not to be appointed by a minister, particularly now that we have a Judicial Appointments Commission. 31. Just as great a concern are the new powers entitled ‘exercise of powers without application’, which mean that the CO will be able to initiate action against a trade union even though there has not been a complaint by a member of the union (clause 14(3)).64 This applies specifically in relation to trade union elections, trade union political funds, and trade union amalgamations. It needs hardly be said that as a matter of constitutional principle this is an extraordinary proposal, the Certification Officer being empowered on behalf of the State to: —— bring a complaint against a trade union; —— make a decision over the very matter about which he has brought the complaint; and —— impose a fine on the trade union he has investigated and upon which he has decided (see para 32 below).65

62 Committee on Standards in Public Life, Party Political Finance, Cm 8208, 2011. 63 TULRCA 1992, s 254. 64 Along with Schedule 2 this makes multiple amendments to TULRCA 1992. 65 The concern here of course is that by instigating a complaint against a particular trade union, the Certification Officer will be tainted by bias in all cases involving that trade union, and perhaps eventually all trade unions. On the rule against bias in adjudication, see A W Bradley, K D Ewing and C J S Knight, Constitutional and Administrative Law (16th ed), chapter 24. 62 Trade Union Bill: Written evidence

32. This is an obvious violation of what one Lord Chief Justice (Hewart) referred to as a principle of ‘fundamental importance’ that ‘justice should not only be done but should manifestly and undoubtedly be seen to be done’.66 But this is not the end of it, with the Bill proposing what are effectively quasi-criminal sanctions relating to wide-ranging matters, including (i) breaches of union rules and (ii) trade union elections.67 Hitherto civil matters only, these will now attract financial penalties that are indistinguishable from fines in criminal proceedings. This power to impose a fine arises after a finding that there has been a breach of obligation by the union, on the basis of the civil rather than the criminal standard of proof. No guidance is provided as to the circumstances in which a fine may be imposed, in what is an open-ended discretionary power. The CO is to become the judge in his own cause: accuser and adjudicator.

Party Funding and Electoral Competition 33. A final concern relates to the impact the Bill will have on trade union funding, and consequently Labour party funding. Political action is recognised by the ILO Committee of Experts as one of the ways by which trade unions can promote their interests,68 and indeed in some cases it is the only form of action that will secure the removal of restrictive laws (such as the Trade Union Bill). It is in any event inevitably protected by the ECHR, its importance acknowledged by the European Court of Human Rights, which recognised in ASLEF v United Kingdom that Historically, trade unions in the United Kingdom, and elsewhere in Europe, were, and though perhaps to a lesser extent today are, commonly affiliated to political parties or movements, particularly those on the left. They are not bodies solely devoted to politically-neutral aspects of the well-being of their members, but are often ideological, with strongly held views on social and political issues.69 34. Trade union political activity is already subject to detailed legal restraints. Legislation prohibits the use of trade union funds unless a number of statutory requirements are met: —— A political resolution must be in force in relation to the trade union in question, whereby the members have approved the adoption of political objects within the preceding 10 years; —— Any political activity falling within the statutory definition of political objects must be funded from a separate political fund in accordance with the political fund rules of the union; —— Every member of the union must be free to claim exemption from contributing to the political fund and must not suffer discrimination or disability for doing so.70 The Thatcher government introduced political fund ballots instead of ‘opting in’. If there is a case for either, there is no case for both; that is to say no case for opting in every five years, as well as political fund ballots every ten years.

Partisan Legacy 35. Trade union political fund legislation was first introduced in 1913, when the Liberal government of the day struck a compromise: trade unions could engage in political activities, provided that members who supported other parties were not required to make a payment to a party or candidates to which they were opposed.71 The existing regulatory framework which has evolved as result is sometimes said to have created a ‘triple lock’ of protection: the individual who does not want to associate with the political activities of his or her union can vote in the political fund ballot every 10 years, opt out of paying the levy, and ultimately leave the union; there is no compulsory membership. 36. The Liberal compromise was shattered by the Tories in the 1920s, with Tory backbenchers then as now demanding tighter restrictions on trade union political activity, no doubt as much to discomfit the Labour party as to respond to any concern about the welfare of trade union members. The mood was caught in 1924 by a Cabinet minister who wrote to colleagues in 1924 that: the major part of the outcry against the political levy is not motivated by a burning indignation for the trade unionist, who is forced to subscribe to the furtherance of political principles which he abhors…… It is based on a desire to hit the Socialist party through their pocket … we should not delude ourselves as to our intentions.72 37. The hawks — led by Churchill (before he discovered the constitutional convention referred to above, when the boot was on the other foot) — nevertheless got their way, and the law was changed by the Trade Disputes and Trade Unions Act 1927, as part of the reparations demanded by the Baldwin government after the of 1926. Trade union members were now required to opt in to the political levy rather than

66 R v Sussex JJ, ex parte McCarthy [1924] 1 KB 256. 67 Proposed new TULRCA 1992, s 256D. 68 ILO, General Survey on the Fundamental Conventions Concerning Rights at Work, above, para 115. 69 [2007] IRLR 361, para 50. See M Ford and J Hendy QC, ASLEF v UK, An IER Briefing (2007). http://www.ier.org.uk/system/ files/ASLEF+v+UK+final+for+website+corr+by+jh1.pdf. 70 TULRCA 1992, ss 71-96. 71 Trade Union Act 1913, which created the framework of the modern law. 72 This passage from the document is reproduced in K D Ewing, Trade Unions, the Labour Party and the Law – A Study of the Trade Union Act 1913 (1983), pp 50-51. Trade Union Bill: Written evidence 63

opt out.73 Members were thus no longer presumed obliged to pay the levy in accordance with the decision of the union; they were presumed unwilling to pay the levy unless they expressly indicated a wish to do so. Once opted in, however, there was no need to renew the opt in periodically thereafter. 38. The law was changed back to its original position by the Attlee government in 1946, and opting out has remained the practice ever since, despite 35 years of Conservative or Conservative-led governments in the period since 1946. The matter was examined by the Royal Commission on Trade Unions and Employers’ Associations appointed in 1965, but the Commission rejected proposals from Conservative party sources to restore the system of opting in as being unnecessary and based on a misconception.74 The Thatcher government also examined the matter, but Cabinet records suggest that the idea of reintroducing opting in was vetoed amidst concerns that such a move would ‘affect the funding of the Labour party, would create great unease and should not be entered into lightly’.75

Partisan Funding Effects 39. It is difficult to know at this stage how a change to opting in will affect trade union political funds. Any calculation will also have to take into account the proposed abolition of the check off across the public sector, which will have implications for the collection of trade union contributions generally. But even without the latter, the Committee on Standards in Public Life confessed in 2011 that it had no idea what effect opting in would have on the level of trade union members paying the political levy.76 If the latter Committee had no idea, it is unlikely that the government will have any better idea. It is, however, reasonable to seek clarification and certainty about the predicted effect of such a change, given its potential implications for the democratic process and competitive elections. 40. It would be wholly disingenuous to ignore the wider implications of the Bill, however expedient it may be to do so. As everyone fully appreciates, clause 10 is not just about whether and how trade union members pay the political levy. But while awaiting better information from the government about the likely effect of the change, there are several reasons to be pessimistic about the impact, the first being the experience of the past. As already pointed out a system of opting in was introduced to replace opting out in 1927. Work undertaken on historical records about 35 years ago suggests that across the board contributions to trade union political funds will fall from current levels of about 88% but that the impact will vary dramatically from union to union – depending to a large extent on the vigour of the union’s response.77 41. However, the experience from 1927 to 1946 may not be a reliable predictor of what will happen in the future. It will be necessary to take into account the changes to the way in which trade unions are organized and subscriptions are collected in the period since. The relatively high levels of opting in in some cases between 1927 and 1946 may be explained in part by the presence of collecting stewards and greater face to face contact between members and branch officials than is possible today. It is reasonable also to assume that high levels of opting in will be less likely where branches are larger and more widely scattered, including many workplaces to which stewards have no right of access. Other organizational changes may also have an impact. 42. It appears in any event that the Bill is designed to maximize the difficulties associated with a move to opting in. I am referring here to the need to give written notice of opt in, the government apparently hostile to electronic activity by trade unions, determined it seems to ensure that trade unions continue to be the caricatures they are portrayed. And I am referring also to the inexplicable need to renew opt ins every five years, an obligation absent in the 1927 legislation. This will be chaotic to administer, and it is difficult to think of a benign explanation. Moreover, if as the Bill suggests there is to be a common renewal date, it will also mean that new members will have to renew their opt in long before 5 years has passed. There is absolutely no reason for any of this, in view of the qualified nature of the commitment to opt in under the Bill – qualified in the sense that it can be withdrawn at any time.

Distorting Fair Election Competition 43. If it is difficult to know precisely how the change to opting in will affect trade union political fund income, it will be equally difficult as a result to predict what effect it will have on the income of the Labour party. The Labour party has seen very significant changes to its structure recently, these initiated by a former leader. It remains the case, nevertheless, that trade unions continue to play a key role in the constitution of the party, and that they continue to be a major source of financial support. Recent press reports – some possibly exaggerated – suggest that while less than half of party income is provided by trade unions annually, this may rise to more than half in an election year. 44. As recognized by the Committee on Standards in Public Life in 2011, the system of party funding in the United Kingdom is like a jigsaw puzzle with many inter-connected pieces. It is not possible to tinker with one part without affecting the integrity of the whole. For all its imperfections, the system has created an equilibrium of sorts, albeit an equilibrium some feel now tilts gently in a Conservative direction. The role of trade unions

73 Trade Disputes and Trade Unions Act 1927, s 4. 74 Report of the Royal Commission on Trade Unions and Employers’ Associations 1965-1968, Cmnd 2623, 1968, paras 912-927. 75 TNA, CAB 128/80 (‘Most Confidential Record’ of Ministerial Meeting, 9 February 1984). 76 Committee on Standards in Public Life, Party Political Finance, above, para 11.44. 77 Ewing, Trade Unions, the Labour Party and the Law, above, pp 56-63. 64 Trade Union Bill: Written evidence

in funding the Labour party is crucial in maintaining that equilibrium, and the sense of fair rivalry that it is the objective of any system of party funding to create. Even if press reports are exaggerated, any cut to trade union funding will inevitably have a damaging effect. 45. It is thus not to be overlooked that at the present time (and this has generally been true historically) the Conservative party does not noticeably operate at a competitive financial disadvantage in relation to other parties. Although some believe that the Labour party is well funded by trade unions, the Conservative party is widely perceived as receiving more large donations from wealthy individuals. In any event, it is not to be overlooked that a donation of £3 million from a trade union represents the £3 of one million individual members. This compares with £1 million to the Conservative party from a wealthy individual, which represents £1 million from the individual in question. A union is donating in a representative capacity; a wealthy individual is donating in a personal capacity. 46. Clause 10 is thus hugely significant constitutionally. For reasons already explained, party funding reform should not take place in a piecemeal way, without addressing the system as a whole. And it is clearly the case that any reform initiative should not target the finances of one party at the expense of the others. If the government is determined to proceed with the changes in the Trade Union Bill, it has a responsibility – not only to the Labour party, but also to the electorate as a whole – to put in place corresponding controls on its own funding, and to replenish the funding about to be displaced. Otherwise, the government will stand to be condemned nationally and internationally for using the power of the State to weaken Her Majesty’s Opposition for its own private partisan purposes.78

Conclusion 47. The foregoing suggests that key provisions of the Bill and related announcements have been ill thought out and hastily prepared. But while the foregoing provides a flavour of some of the constitutional concerns that have been provoked, they are by no means exhaustive. Other witnesses will no doubt invite the Committee to consider the extent to which many of the foregoing measures are compatible with the government’s obligations under the European Convention on Human Rights. 48. The jurisprudence of the European Court of Human Rights to date suggests that there may be questions relating to Articles 8 (right to private life),79 11 (freedom of assembly and association),80 and 14 (freedom from discrimination in the application of Convention rights).81 It is probably unnecessary for these concerns to be rehearsed here. It should be pointed out, however, that in dealing with complaints the Strasbourg court attaches considerable weight to ILO Conventions, and the jurisprudence of the ILO supervisory bodies (the Committee of Experts, and the Committee on Freedom of Association). 49. The Strasbourg Court also attaches much weight to the European Social Charter of 1961, another international treaty. The latter was ratified in 1962 by a Conservative government, and provides by article 5 protection for the right to organize, and by article 6(2) and (4) protection for the right to bargain collectively as well as the right to strike. The United Kingdom is currently in breach of Articles 5 and 6, for reasons relating to our laws which already (i) violate trade union autonomy and (ii) impose unduly tight restrictions on industrial action. In its most recent cycle of supervision, the European Committee of Social Rights reported as follows– The Committee concludes that the situation in the United Kingdom is not in conformity with Article 6{4) of the 1961 Charter on the grounds that: —— The possibilities for workers to defend their interests through lawful collective action are excessively limited; —— The requirement to give notice to an employer of a ballot on industrial action is excessive; —— The protection of workers against dismissal when taking industrial action is insufficient.82 50. The other major issue of course relates to devolution, and the provisions of the Scotland Act 1998 in particular. Again this is an issue that is likely to be raised by other witnesses, better able to comment on the matters than I am. There are, however, three obvious matters that will need to be explored: —— how will it be possible to extend the ban on the use of the check off to Scottish public bodies, in view of the requirement that Scottish ministers should not act in breach of Convention rights?

78 A blueprint for funding reform already exists in the most recent report on the matter by the Committee on Standards in Public Life. This is not at this stage a legal question though it may become one. There are strong parallels between the political levy provisions of the Bill (and the related ‘Gagging’ Act 2014) and similar partisan restraints recently introduced in New South Wales. The High Court of Australia struck down the latter provisions in a unanimous decision (6:0), as discriminatory and unconstitutional restrictions on the freedom of political communication: Unions NSW v NSW [2013] HCA 58. See T Ayres and K D Ewing, ‘O’Farrell’s funding flop ensures freedom’, The Australian, 2 January 2014. 79 Gillan and Quinton v United Kingdom [2009] ECHR 28 (clause 9). 80 Demir and Baycara v Turkey [2008] ECHR 1345, and a burgeoning progeny on the right to strike (check off ban, rewriting collective agreements, strike restrictions). 81 Danilenkov v Russia, Application No 67336/01, 10 December 2009 (discriminatory treatment of trade unionists). 82 Council of Europe, Social Rights Committee, Conclusions XX-3 (2014), p 24. Trade Union Bill: Written evidence 65

—— which minister will have authority to rewrite collective agreements (in breach of Convention rights) relating to workplace facilities in Scotland? Is this a power that will be exercised by the Secretary of State for Scotland? —— what account has been taken for the purposes of clause 9 (picketing) of the fact that there is a different system of police powers and criminal justice in Scotland, operating alongside the reserved system of trade union law?

These questions need to be answered, as do more fundamental questions about the nature of the government’s mandate to impose any of the provisions of the Bill on the people of Scotland.

October 2015

Written evidence submitted by Thompsons Solicitors LLP (TUB 22)

1. introduction 1.1 Thompsons Solicitors LLP is the largest and most experienced firm of employment and trade union solicitors in the United Kingdom, with 26 offices in Great Britain and Northern Ireland. We have advised and represented trade unions in almost all major industrial disputes in the last decade, including in domestic and international courts. We regularly advise trade unions in relation to their political funds, and advise and represent them in matters within the Certification Officer’s jurisdiction.

1.2 We, and the trade unions we represent, have the most fundamental objections of principle to the contents of the Trade Union Bill (and the three associated consultations also announced by BIS on 15 July 2015) which we see as an unwarranted ideological attack on the internationally recognised rights of trade unions in this country. We endorse the joint statement of 7 September from Liberty, Amnesty International and the British Institute for Human Rights. As the joint statement says ‘…Taken together the unprecedented measures in the Bill would hamper people’s basic rights to protest and shift even more power from the employee to the employer….It is hard to see the aim of the Bill as anything but seeking to undermine the rights of all working people’.

1.3 We do not believe that our evidence to this Committee is the appropriate place to set out all of those objections. Instead, we confine our evidence to why, in our view, the provisions currently contained in the Bill are unlawful, unworkable and/or oppressive. However, nothing we say in this evidence is intended to detract from our fundamental objections in principle to the contents of the Bill.

2. internationally recognised trade union rights 2.1 Trade union rights and freedoms are protected by an array of international treaties which have been ratified by, and are binding on, the United Kingdom. These include Convention Nos. 87 (on freedom of association and protection of the right to organise), 98 (on the right to organise and collective bargaining) and 151 (the Labour Relations (Public Service) Convention) of the International Labour Organisation (‘ILO’), a tripartite agency of the United Nations, and the European Social Charter.

2.2 The supervisory bodies of those international legal instruments have consistently condemned the United Kingdom’s trade union laws as violating the international standards set by those instruments. In its report concerning the United Kingdom published in January 2015, the European Committee of Social Rights concluded that ‘the situation is not in conformity with Article 6(4) of the 1961 Charter on the grounds that….. the possibilities for workers to defend their interests through collective action are excessively limited; the requirement to give notice to an employer of a ballot on industrial action is excessive; and the protection of workers against dismissal is insufficient’.83

2.3 Trade union rights and freedoms are also protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘European Convention’) and the Human Rights Act. The protections under the European Convention include Article 11 (freedom of association) as well as Article 6 (right to a fair trial, which is engaged by the changes to the Certification Officer’s role), Article 10 (freedom of expression, which is engaged in relation to picketing and protests, and rules concerning unions’ political funds), Article 14 (protection against discrimination, including on grounds of public sector or trade union status) and Article 1 Protocol 1 (protection of property). Protection is also provided by Articles 12 and 28 of the Charter of Fundamental Rights of the European Union.

2.4 To uphold the rule of law, a State must comply with obligations binding on it under international law, which in turn include binding trade union rights and freedoms.

83 European Committee of Social Rights, Conclusions XX-3 (2014), United Kingdom. 66 Trade Union Bill: Written evidence

3. Ballots: 50% turnout requirement (Clause 2) 3.1 The government appears to use as its starting point: ‘Currently, in order to take industrial action, a trade union is required to ballot all of its members affected by the dispute’84. That is wrong. The trade union is required to ballot all its members who it is reasonable for it to believe will be called to take part in the action.85 3.2 No adequate evidence is presented as to the need for thresholds, as identified by the Regulatory Policy Committee in its rating of the BIS consultation on ballot thresholds in important public services (and in its rating of the two other BIS consultations associated with the Bill) as ‘not fit for purpose’.86 The measure is simply designed to make it more difficult for unions to organise industrial action, particularly on a national scale. 3.3 If the government was serious about increasing participation in trade union ballots it would permit safe and secure electronic and workplace balloting. 3.4 The ILO’s Committee of Experts has ruled that ‘the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult’87 and that, where a ballot is required, States must ensure that ‘…account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level..,’. Clause 2 fails to meet these standards. It fails: (i) to take account of the totality of the balloting method in the United Kingdom – most notably, the requirement for a fully postal secret ballot, but also other requirements such as the requirement of a pre-ballot notice; and (ii) to confine the consideration only to votes cast. 3.5 The ILO’s Committee on Freedom of Association has recently considered the requirements of Australian legislation88 which, like Clause 2 of the Bill, imposes a requirement for at least 50% of the employees ‘on the roll of voters’ to vote in the ballot. The Committee on Freedom of Association found that this requirement was likely to be ‘excessive’.89 3.6 Of seven European countries in respect of which information has been obtained, none imposes a percentage turnout requirement. The countries are France, Spain, Belgium, Ireland, Sweden, Norway and Finland. 3.7 Compliance with international law obligations, and the law and practice in other States, are important factors in determining whether a State has complied with Article 11 of the European Convention. Given that the turnout requirement applies to a primary, central aspect of trade union activity,90 the State’s margin of appreciation will be reduced. It is likely that the 50% turnout requirement is unlawful.

4. Ballots: 40% support requirement in important public services (Clause 3) 4.1 The ILO’s Freedom of Association Committee has held that the right to strike may be restricted or prohibited only in essential services, and then only ‘in the strict sense of the term’. ‘Essential services’ are those where interruption ‘would endanger the life, personal safety or health of the whole or part of the population’.91 The government is creating its own very different standard of what it calls ‘important public services’, which are to be defined by reference to what the government perceives to be adverse impact on the public. Not only is this so loose and vague a definition as to be unworkable, it also fails to comply with the requirements of international law. As previously, the percentage threshold is also not confined to votes cast. There are also no compensatory measures as required by the ILO. A measure similar to the additional support threshold is also not found in any of the seven European countries in respect of which information has been obtained.92 In those countries, where there are special rules applying to strikes in what may be described as ‘essential public services’, they are confined to civil servants exercising public authority,93 or ‘safety work’ or ‘essential services’.94 In France, in the transport sector, there is a requirement for employees whose presence is ‘directly necessary’ for the provision of the service to give 48 hours’ notice of their intention to take industrial action. 4.2 The additional support threshold disregards the clear requirements of international law, including in relation to Article 11 of the European Convention for the reasons given at paragraph 3.7 above, and is therefore unlawful.

84 See paragraph 8 of the BIS Consultation on ballot thresholds in important public services, July 2015. 85 See section 227 Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) 86 Regulatory Policy Committee Opinion: consultation IA ‘Ballot thresholds in important public services, Department for Business, Innovation and Skills’ 18 August 2015. 87 See 1994 General Survey. 88 See section 451(9) Australian Fair Work Act 2009. 89 Case No.2698 (Australia), cited by Michael Ford QC and Tonia Novitz: ‘An Absence of Fairness….Restrictions on industrial action and protest in the Trade Union Bill’ [2015] Industrial Law Journal, forthcoming. 90 As compared with picketing, which was described by the European Court of Human Rights as a ‘secondary aspect of trade union activity’ in RMT v United Kingdom [2014] IRLR 467. 91 See Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth edition 2006 at paragraph 576. 92 See paragraph 3.6 above. 93 Sweden. 94 Finland, Spain. Trade Union Bill: Written evidence 67

4.3 Of the six categories of so-called ‘important public services’ identified in Clause 3 of the Bill, two were not referred to in the Conservative manifesto at the 2015 General Election: ‘decommissioning of nuclear installations and management of radioactive waste and spent fuel’ and ‘border security’. 4.4 The Regulatory Policy Committee condemned the BIS consultation on ballot thresholds in ‘important public services’, as ‘not fit for purpose’. The Regulatory Policy Committee determined that: (i) BIS should have provided a discussion of options for alternatives to a threshold; (ii) the Impact Assessment accompanying the consultation did not provide a clear enough basis for consultation; (iii) BIS’ description of the ‘problem’ as ‘important public services can have far reaching effects on significant numbers of ordinary people’ was ‘extremely limited’ and the Committee expected ‘..more evidence/discussion on this point for a measure of this kind eg better assessment of the costs and disruption causes, and its impact on the economy’; (iv) BIS’ estimated percentage reduction in strikes of 65% lacked sufficient evidence; (v) there was a failure to assess the impact of the threshold on levels of industrial action short of a strike; (vi) the impact of the 50% turnout requirement and the additional support threshold in ‘important public services’ should be considered separately; and (vii) further analysis ‘would be useful’ as to how the restrictions on strikes would impact on income distributions. 4.5 In any event, there is far too much uncertainty and vagueness of expression as to how the additional support threshold is to operate. It will apply to those entitled to vote in the ballot who are ‘normally engaged’ in the ‘provision of important public services’ and ‘…activities that are ancillary….’. With the wide variety of employment relationships in the United Kingdom, it is impossible to see how a threshold of ‘..normally engaged..’ can be interpreted in a clear and consistent way without protracted and expensive litigation. For workers working in an ‘important public service’, defining the boundary between those who will be covered by the additional support threshold and those who will not will, in any event, be an enormously difficult task. It will certainly not be achieved by the current version of Clause 4. Likewise, it will very often be the case, for industrial action to be organised in an ‘important public service’, that some workers will be covered by the additional support threshold and some will not. Clause 4 would need to be clear as to the circumstances in which the additional support threshold would apply to such a ‘mixed’ balloting constituency. Whilst the matter is canvassed in the BIS consultation, no adequate solution is proposed, and it is not referred to in Clause 4 of the Bill The BIS consultation on ‘ballot thresholds in important public services’ gives no confidence whatsoever that these matters will be resolved. There is every prospect that the additional support threshold will be unworkable.

5. further industrial action measures: Information to be included on voting paper (Clause 4), Information to members etc about the result (Clause 5), Information to Certification Officer about industrial action etc. (Clause 6), Two weeks’ notice to be given to employers of industrial action (Clause 7) and Expiry of mandate for industrial action four months after the date of the ballot (Clause 8) 5.1 We endorse the position expressed by the TUC that the existing procedural obligations in relation to industrial action are excessive and disproportionate. These additional procedural obstacles contribute further to the totality of the restrictions imposed on the right to strike. The Government acknowledges, for example, in its European Convention Memorandum that the expiry of the ballot mandate after 4 months engages Article 11 of the European Convention. Contrary to the view expressed in that Memorandum, we believe that the expiry of the ballot mandate after 4 months is not justified under Article 11 of the European Convention and, like the other additional measures, is likely to be unlawful. 5.2 The description of the matters in issue in the trade dispute to be included on the voting paper must be a ‘reasonably detailed indication’.95 That is not only unclear, but also internally contradictory. Where there is to be industrial action short of a strike, the voting paper must specify the ‘type or types of industrial action’.96 It is impossible to know with certainty what fulfilment of that obligation would require. These intricate obligations will be used by employers as the legal grounds for challenges in the courts. Not only are they are unworkable, they will also inevitably lead to protracted and expensive litigation. 5.3 These additional measures serve only two purposes: (i) imposing additional administrative burdens on trade unions; and (ii) making it easier for employers to challenge trade unions’ legal immunity for organising industrial action. The Certification Officer is an officer appointed by the government and there is no possible justification for a requirement to pass information concerning industrial action to him/her. Employers would simply have 14 days, instead of 7, following notification of industrial action to prepare their legal case and seek an injunction to restrain the industrial action. These measures are oppressive.

6. union supervision of picketing (Clause 9) 6.1 The ILO’s Freedom of Association Committee has ruled that the right to picket should only be interfered with where the restriction is ‘designed to protect public order or to present threats being made to workers who continue to work during the dispute’.97 The numerous additional obligations associated with the requirement to appoint a picket supervisor – to pass their name and contact details to ‘the police’, providing a letter of authority, the supervisor having to be present (or readily contactable) while the picketing is taking place and the requirement to wear a badge, armband or other means of identification – do not satisfy this test. Nor are

95 See Clause 4(1). 96 See Clause 4(1). 97 See Digest of decisions of the ILO’s Freedom of Association Committee 1996. 68 Trade Union Bill: Written evidence

they consistent with the guidelines on freedom of association and peaceful assembly published by the Venice Commission.98 The right to picket is also protected by Articles 10 (freedom of assembly) and 11 (freedom of association) of the European Convention, with Article 14 also potentially being engaged. The European Convention on Human Rights Memorandum accompanying the Bill does not even acknowledge (as is undoubtedly the case) that the picketing aspects of the Bill engage Article 10, as well as Article 11, of the European Convention. None of the seven European countries in respect of which information has been obtained singles out picketing for treatment different from other forms of protest. In the United Kingdom, it is only trade unions which are to be subject to these additional requirements – not other bodies which organise protests. The requirements are therefore discriminatory, and are unlawful. 6.2 It is not realistic to expect trade unions to have to comply with obligations which exceed considerably recognised international standards. Because picketing can only (lawfully) take place ‘at or near’ a member’s place of work,99 there is the potential for separate picketing to take place at each workplace where there are members involved the dispute. In a large dispute, the number of picket supervisors required could easily run into the thousands. The new obligations would be triggered whenever a union ‘organises or encourages its members to take part in ‘picketing activities. Employers will no doubt argue that members are encouraged to take part in picketing activities on the basis of the activities of union officials as agents. The union may well not even know where each picket is to take place. The union or the picket supervisor will be required to ‘tell the police’ certain information and be ‘readily contactable’. It is impossible to tell who ‘in the police’ the union or picket supervisor is required to give this information to, and in what form. The requirements are therefore likely to be unworkable. 6.3 The picketing provisions, and the matters referred to in the BIS consultation on tackling intimidation of non-striking workers, are simply part of the end product the Government hoped the Carr review100 would justify. But it didn’t. The Conservative Party’s press release of 18 July 2014 setting out its plans to change the law on picketing led Bruce Carr QC himself to conclude ‘…The proposal to reform picketing laws appeared to me to fall squarely within the scope of the ‘Terms of Reference’ and in my view made it difficult for the Review to operate in the area without being seen as partisan.’ The catalyst for the Carr review was the INEOS dispute at Grangemouth. Bruce Carr QC’s conclusion, from the evidence available to him, was that ‘….there is no evidence to suggest that these protests were anything but peaceful’. 6.4 The government seemingly relies on the evidence to the Carr review. That amounted to 15 responses which the review team considered ‘substantive’, of which only nine were to be regarded as ‘primary evidence’. Even now, the government is calling for ‘further evidence’ recognising the paucity of the ‘evidence to date’. The government’s evidence base for considering changes to the law governing wider protests seems to be limited to the unsubstantiated allegations made by a minority of Police Forces as reported by the Association of Chief Police Officers and quoted at paragraph 6 of the consultation. In fact, ACPO’s basic position was that no change was required, and that existing criminal law was adequate. 6.5 Our criticisms of the provisions concerning picketing (and the further measures proposed by the government in the BIS consultation on ‘Tackling intimidation of non-striking workers’) are echoed by the Regulatory Policy Committee which rated that consultation ‘not fit for purpose’. The Committee, considering not only the proposals already contained in the Bill but also the government’s proposals for further reform, concluded that the ‘description of the problem’ was ‘weak and must be substantiated’ and that ‘there is little evidence that there will be any significant benefits arising from the proposal’. 6.6 The picket supervisor would have to show the letter of authority not only to the police, but also ‘to any other person who reasonably requires it’. In theory, that might be argued to include not only employers but also journalists and passers-by. The requirement to wear an armband or badge, and for the picket supervisor to identify themselves, carry unnecessarily authoritarian connotations. These requirements will not make a significant contribution to public order. They are simply oppressive. Furthermore, so far as the police are concerned, it is impossible to see how these measures are anything other than a waste of their time.

7. opting in by union members to contribute to political funds (Clause 10) and Union’s annual return to include details of political expenditure (Clause 11) 7.1 It is important to have in mind the ambit of the definition of ‘political objects’. That definition is not confined to donations and contributions to political parties and candidates. It also includes expenditure ‘..in connection with the registration of electors..’ and production of material designed to persuade people to vote for or against political parties or candidates.101 7.2 Political action is recognised by the ILO as a legitimate and protected means of protection of trade union members’ interests. The requirements of Clauses 10 and 11 of the Bill follow on from the restrictions on trade union campaigning expenditure imposed by Part II of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. The right to free elections is given ‘foundational’ status under

98 An advisory body of the Council of Europe. The guidelines are available at http://www.venice.coe.int/webforms/documents/ default.aspx?pdffile=CDL-AD(2010)020-e 99 See section 220 TULRCA. 100 The Carr Report: The Report of the Independent Review of the Law Governing Industrial Disputes October 2014 101 See section 72(c ) and (f) TULRCA. Trade Union Bill: Written evidence 69

Article 3 Protocol 1 to the European Convention, which operates alongside the protection of freedom of expression afforded by Article 10 of the European Convention which in turn complements Article 11 in this area. And yet the requirement to ‘opt in’ would operate in the most intrusive way: it would be applied to all (including existing) trade union members, members who had previously opted in could opt out at any time and trade unions would only have three months from the date the Act came into to force to obtain written authority (not by electronic means) from existing members (and renew it in five years’ time). The union would further be subjected to intricate reporting requirements concerning its political expenditure to an officer appointed by the government. Those requirements would apply to each item of expenditure where the total annual expenditure exceeds £2000. The European Convention on Human Rights Memorandum issued by BIS does not even mention the engagement of Articles 10 and 11 in terms of the new requirement to ‘opt into’ contribution to a union’s political fund. The only conclusion would seem to be that BIS does not consider that Articles 10 and 11 are engaged by these provisions. If that is the case, the statement given by the Secretary of State on the face of the Bill for the purpose of Section 19(1)(a) of the Human Rights Act 1998 must be called into question. These provisions are likely to be unlawful. 7.3 No account is apparently taken of the fact that the measures will require amendment of trade unions’ rule books, or of the procedures unions have to go through to amend their rules, or of the fact that trade unions must have their political fund rules approved by the Certification Officer.102 Trade unions’ rule books are currently required to contain provisions reflecting members’ current rights to opt out of making contributions to the political fund103. Sufficient time will need to be allowed prior to the implementation of these proposals to enable unions to make the necessary amendments to their rule books,104 and to have them approved by the Certification Officer. It is unrealistic to expect trade unions to be able secure written ‘opt-in’ authority from their members by a date three months from the date of the Act come into force. That difficulty is compounded by a union not being allowed to use electronic means to obtain members’ authority. The requirement to identify each item of expenditure (where the total annual expenditure exceeds £2000) and its ‘nature’ in the union’s annual return will be virtually impossible to comply with – not least because expenditure will often fall into more than one category. These arrangements are going to be unworkable. 7.4 Each of the measures in relation to unions’ political funds and expenditure is designed to make it less likely that union members will contribute to a union’s political fund, and as burdensome as possible for the union to report its political expenditure to an the Certification Officer who is appointed by the government. No corresponding measures are to be applied to other organisations making contributions to political parties or political activities. The measures are oppressive.

8. facility time: Publication requirements (Clause 12) and Reserve powers (Clause 13) 8.1 To the provisions concerning facility time in the public sector already contained in the Bill are to be added the government’s announcement on 6 August that the Bill is to be amended to include a ban on the collection of trade union subscriptions by check-off in the public sector. No Clauses for inclusion in the Bill have yet been provided. 8.2 ILO Convention No. 151 requires that the level of facilities to be made available to representatives is such ‘..as may be appropriate in order to enable them to carry out their functions promptly and efficiently’.105 Yet the government is reserving to the Minister the power to curtail facility time whenever the Minster ‘considers it appropriate to do so’. The reserve powers will be capable of overriding existing statutory and contractual rights and rights under collective agreements, and may have retrospective effect. Unjustified retrospective interference with pre-existing rights is prohibited by Article 1 Protocol 1 of the European Convention. Public sector status is likely to amount to a protected characteristic for the purpose of the Article 14 of the European Convention and it is the public sector that is singled out for discriminatory treatment when it comes to facility time. There is every prospect that the measures contained in Clauses 12 and 13 are unlawful when matched against these international standards. Further, the inclusion of health and safety representatives is likely to infringe health and safety obligations under EU law.106 8.3 No account is taken of the impact of the facility time (or any other) provisions on public services in the devolved administrations where the Bill is so bitterly opposed anyway. The information the Minister may require public sector employers to publish is absurdly detailed and includes the number of relevant union officials within specified categories, the total amount spent in a specified period paying union officials for facility time, the percentage of the employer’s total pay bill for a specified period spent on paying for facility time, the percentage aggregate amount of facility time taken by officials in a specified period and information as to facilities provided by an employer for use by relevant union officials in connection with facilities time. It is difficult to imagine how a public sector employer would be able to comply with these obligations without deploying considerable resources.

102 See section 71(1)(b) TULRCA. 103 See section 82 and 84 TULRCA. 104 As was the case with the implementation of Part III of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. 105 See Article 6 ILO Convention No.151. 106 See Articles 7 and 11 of EU Council Directive 89/391 on the introduction of measures to encourage improvements in the health and safety of workers at work. 70 Trade Union Bill: Written evidence

8.4 We emphasise (i) the level of detail potentially required of public sector employers under the publication requirements (with no apparent reason given as to why headline figures would not suffice); (ii) the Minister’s subjective ability to curtail trade union facilities without reference to what may reasonably be required; and (iii) the ability of the Minister, when exercising the reserve powers (as matters stand, by negative resolution) to override existing rights under statute, contracts and collective agreements. On any analysis, these outcomes are oppressive.

9. certification Officer: Investigatory powers etc (Clause 14), Enforcement of new annual return requirements (Clause 15) and Further powers where an enforcement order is made (Clause 16) 9.1 The Certification Officer’s role is to be transformed from that of an independent arbiter of disputes to that of a State-appointed investigator and enforcer. The power to require production of documents is triggered by the absurdly low, subjective threshold of when the Certification Officer ‘thinks there is good reason to do so’. The category of documents that can be required to be produced are any that ‘may be relevant to whether the trade union has failed to comply with a relevant obligation’. These requirements may be applied not only to a branch or section of a trade union, but also to ‘any person who appears to be in possession of them’. The Certification Officer will be able to exercise his powers in relation to non-compliance without receiving a complaint form a trade union member. These provisions offend the most basic principles of natural justice. The Certification Officer will have power to require the production of documents, on the basis of which he will be able to initiate an investigation, following on from which he will be able to decide (on the balance of probabilities) that a union has failed to comply with its obligations, and, if he decides that it has, make an enforcement order and impose a fine. 9.2 The European Convention on Human Rights Memorandum issued by BIS analyses the imposition of a fine in terms of compliance with Article 6 and Article 1 Protocol of the European Convention. We do not agree that the ability to impose a fine, which is effectively a quasi-criminal sanction, satisfies the requirements of Article 6 and Article 1 Protocol 1. There is also no mention in that Memorandum of how the Certification Officer’s other increased powers are likely to engage Article 6. There is every prospect that the enhanced powers of the Certification Officer are unlawful. 9.3 It is wholly unrealistic to expect a trade union ‘or a branch or a section of a trade union’ (or indeed ‘any person who appears to be ‘[in possession of the documents]’) to be able to produce ‘immediately’ to an authorised person the relevant documents (and explanation) that person may specify. It is also wholly unrealistic not to introduce further safeguards (beyond confidentiality), such as in relation to competence, independence and identity, for the investigators the Certification Officer may appoint from outside of his own staff, and for the persons the Certification Officer may authorise to act on his behalf for the purpose of the production of documents. 9.4 We emphasise: (i) the subjective decision-making on the part of the Certification Officer (an officer appointed by the government) which will be capable of leading to a union (or branch or section or ‘other person’) being compelled to produce documents ‘immediately’; (ii) that the union, section, branch or other person may additionally be required to provide an explanation in relation to the documents; (iii) that the Certification Officer will be able to exercise his powers in relation to relevant obligations without a complaint being made to him; and (iv) the way in which The Certification Officer will become investigator, prosecutor, adjudicator and enforcer . The role of the Certification Officer is to be transformed in a way which is oppressive to trade unions.

10. Power to impose levy (Clause 17) 10.1 And finally, trade unions may be required to pay a levy to the Certification Officer of an amount to be determined by the Certification Officer. The only seeming limitation on the amount of the levy to be determined by the Certification Officer will be the need for him to ‘aim ‘ to ensure that the total amount levied over any period of three years does not exceed the total amount of his expenses. The independence of the Certification Officer will be compromised. Despite the lack of analysis in the European Convention on Human Rights Memorandum published by BIS, Article 6 of the European Convention will be engaged. And trade unions will be paying themselves for the oppressive additional burdens to be imposed upon them. October 2015

Written evidence submitted by the CBI (TUB 23) Updating our industrial relations framework is critical to the continued growth of the UK economy. The current legal framework is out of sync with the modern workplace and today’s employment relationship. Reform is necessary to democratise and modernise the law. Business backs plans to modernise our industrial relations framework. Over the past three decades workplaces have rapidly evolved and a new more flexible and individual employment relationship has grown up. While employment law has been transformed in recent years, union laws have not moved on at the same speed. The employee voice must be returned to the centre of our industrial relations framework because our Trade Union Bill: Written evidence 71

laws too often empower union leaders rather than union members. Policies should push both employers and employee representatives to make decisions that are good for the long-term health of the firm and the economy. What Britain needs now is a modernised legal framework for industrial relations – one that reflects today’s workplace, not the 1980s. It should help to drive the economy forward while recognising the valuable role that trade unions play in workplaces where employees want to be collectively represented. In this briefing we argue that: —— Strike ballot thresholds will put the employee voice to fore of our industrial relations framework. —— Businesses and the public need more time to prepare for industrial action. —— Greater transparency during industrial action is needed. —— Enforcement of the regulations must be strengthened and penalties increased for non-compliance.

Strike ballot thresholds will put the employee voice at the fore of our industrial relations framework Industrial disputes are best resolved within the workplace Industrial action should be the last resort, after dispute resolution has been unsuccessful. When called, industrial action should have a clear, democratic mandate from the workforce. The CBI supports the introduction of a 50% turnout threshold for all strike ballots because it will ensure over a quarter of the workforce are in favour of a strike. The CBI also supports the 40% test for important public services and would like to see the government go further and apply both tests to all strike ballots. The introduction of strike ballot thresholds does not contradict any UK ratified ILO conventions, or undermine any EU rights. This is about ensuring the employee voice is democratically heard in industrial disputes. Too often we see strikes go ahead on the low turnouts, or with the support of a small proportion of the workforce. In 2014, thousands of schools were closed following a ballot that achieved a turnout of 27%.107 Earlier this year, a trade union called a strike based on the support of just 16% of bus drivers.108 This cannot be right. Industrial action should never be the result of apathy among mainstream union members. To ensure the employee voice is heard, the CBI would like to see the law changed to require both a simple majority and the support of 40% for all strike ballots. This mirrors the existing and well established statutory recognition rules which require trade unions to demonstrate support from at least 40% of those balloted as well as a majority of those voting. The rule has worked very well in practice, with both sides respecting the outcome. It is important that the government delivers a framework that is workable for both employers and employee representatives. Employers, employees and trade unions will require clarity over which threshold applies to whom within each workplace. To deliver this clarity the government should not seek to identify occupations or functions within the identified sectors, but apply the 40% threshold to all workers engaged in that sector. We are concerned that drawing up a list of specific occupations would not deliver the clarity that is required, particularly given the complexity of outsourced public sector contracts. The government spends a total of £187bn each year to deliver the goods and services on which the UK public depend and 200,000 private and third sector organisations are part of the extensive supply chains.109 Within these supply chains there will not be a common list of occupations that is easily identified – these will all depend upon the individual business framework and how they organise their job families. Establishing and maintaining a list of common occupations would be a particularly onerous task for the government and would, more importantly, risk frequent legal challenge unless trade unions and employers were in agreement about the content of the list. Applying the threshold to whole sectors would deliver the clarity required, rather than attempting to list job functions or occupations and critical ancillary roles.

Businesses and the public need more time to prepare for industrial action When strikes are called it is necessary that all parties – businesses and the public – have sufficient time to prepare and take the necessary steps to minimise disruption. Businesses have a responsibility to customers and their supply chain to maintain services and production during a period of industrial action. Businesses support the clause in the Bill to extend the notice period before industrial action from 7 to 14 days. This will allow both businesses, workers and the public to take the necessary steps to plan for the disruption caused by industrial action. We would suggest there is also a case for a similar requirement to give businesses 14 days’ notice before a ballot is held. The additional time prior to a ballot would allow businesses and unions greater time to reach a resolution without undue pressure of a strike hampering discussions. Businesses also support the ballot mandate expiration proposals in the Bill. To ensure that industrial action is only ever brought about following an active and positive decision from the workforce it is important that ballots are limited to the original dispute, not extended to other matters.

107 House of Commons, 9 July 2014, vol 584, col 292. 108 TfL press statement, January 2015 accessed: http://www.bbc.co.uk/news/uk-england-london-31026915 (01/10/15) 109 CBI, The economic footprint of the public services industry, 2014. 72 Trade Union Bill: Written evidence

In the run up to a strike ballot rumours and misinformation can circulate. Employees should be fully informed about the dispute from both parties ahead of a ballot. The CBI support the provisions in the Bill to require unions to provide information about the matter in dispute. The Bill’s requirements to include information on ballot papers are reasonable. It requires unions to identify the issues in dispute, the form of action that might follow if action short of a strike is suggested, and the proposed period in which action is expected to take place. To ensure employees are fully informed however, we believe employers should also have the opportunity to include a concise statement about the dispute alongside the ballot paper if they wish. The statement would be required to cover the scope, nature and reason for the dispute to ensure union members can take an informed and considered decision about the industrial action.

Greater transparency during industrial action is needed The current status of the picketing Code of Practice does not provide a great enough incentive for trade union members to remain within the prescribed guidelines. Whilst many unions observe the guidelines of the Code, CBI members have witnessed trade union activity that falls foul of the current guidelines in recent years. Greater transparency around industrial activity would provide greater clarity about what is lawful activity and what is not. Business supports the proposal to make Section F of the Code legally enforceable. The CBI would, however, like to see the government go further and reasonably transpose the entire Code. The proposal to require trade unions to publish protest and picketing plans 14 days in advance of industrial action and the appointment of a picketing supervisor has the support of business. Clearly setting out how the picket or protest will be organised and establishing a named contact will provide greater clarity about which activities are part of legal industrial action and any activities that fall outside of the prescribed guidelines. The Code has encouraged these behaviours for a long time, so it would be a small step that would be easily taken in most workplaces. The Bill does not require unions to provide every last detail about their planned industrial action – e.g. their plans for using social media. Enforcement of the regulations must be strengthened and penalties increased for non-compliance. A strong legal framework is one that is effectively enforced and drives compliance. It is for this reason the CBI supports the proposals to enhance the role of the Certification Officer to ensure the regulations are effectively enforced and incidences of non-compliance are properly investigated. The CBI has however, long called for stronger penalties for non-compliance. For example, where the Certification Officer find a union is involved in wildcat action, it needs effective sanctions to act as a deterrent. Under the current law, damages may be sought against unions which fail to comply with various obligations, but those damages are capped according to the size of the union. The union cap was introduced in 1982 and has not been uprated since. Meanwhile, capped limits faced by employers, such as the cap on compensation for unfair dismissal, have increased significantly.110 The CBI believes the cap on damages should be lifted and a more persuasive deterrent for non-compliance with the law should apply – a daily penalty should be applied by the courts, uprated automatically uprated over time. During industrial disputes effective enforcement of existing civil and criminal law is also essential. Actions that are undertaken that intimidate, or cause damage property or people must be dealt with by the appropriate authorities regardless of whether they occur during a period of industrial action. There is already a criminal framework in place for dealing with reports of intimidation and harassment – the focus should be on ensuring these laws are properly enforced by the police rather than introducing a new criminal offence of intimidation on the picket line. There CBI supports the government’s commitment to engage with the Crown Prosecution Service, police and relevant government departments to ensure the existing powers are used effectively. October 2015

Written evidence submitted by the London HR Directors Network (TUB 24) As a group of HR Directors we are responsible for a public sector workforce of over 250,000 NHS staff across the capital. We welcome the opportunity to offer a view on the Bill before its progress through the various stages of Parliamentary readings and hope the following comments provide helpful observation on how the spirit of the Bill’s focus may be achieved through refined legislation. Just as across the civil service, the NHS has taken a partnership approach to employee relations, working with trade unions in a manner that has so far minimised the risk of industrial action through strong partnership arrangements. This has paid dividends through improved patient care, a better employee voice and staff engagement, as well as agreements on pay awards that have protected lower paid employees amongst workforces that have little real terms increase in their pay or benefits. Indeed such engagement has been recognised by Health Ministers as fundamental to the delivery of the NHS’s Five Year Forward View. You will know strikes are not common in the NHS, yet when they happen they have been brief although with the potential to cause significant impact. For the majority of Trusts local partnership agreements have helped

110 CBI, Keeping the Wheels Turning, 2010. Trade Union Bill: Written evidence 73

us to cover core services with little or no inconvenience for our patients, although we acknowledge the specific challenge for the London Ambulance Service. We are concerned that the new voting rules outlined in the draft Bill may make us less able to locally agree solutions to manage any potential impact and to confine the negative implications of any future industrial action for the public or patients. This is because Trade unions that achieved the new voting thresholds may more likely contend that urgent cover is now an employer responsibility. Additionally, we are not convinced that the benefits of levying a charge on trade unions and employer organisations to cover the cost of certification officers or proposed changes to stop staff paying their Union monies through deductions will be of significant added value. On balance, we are concerned those measures are more likely to be received negatively by staff and Unions and thus unduly effect their motivation and commitment with very limited cost benefit in return. We understand NHS leaders across England have written to you raising similar points and be would be happy to discuss our assessment with your responsible officials. Deborah O’Dea Chair of London HRD network and on behalf of Human Resource Directors – London Trusts September 2015

Written evidence submitted by the NASUWT, The Teachers’ Union (TUB 25) The NASUWT is the largest union in the UK representing teachers and school leaders. As the largest teachers’ union, the NASUWT requests the opportunity to discuss its written evidence with the Committee, particularly with regard to the implications arising from the provisions contained within the Trade Union Bill that affect trade unions and the provision of education in schools and colleges.

Introduction 1. This submission provides: —— general commentary on the proposals set out in the Trade Union Bill; —— comments on the specific clauses contained in the Trade Union Bill.

General comments on the Trade Union Bill 2. The NASUWT rejects entirely the proposals for trade union reform contained in the Trade Union Bill. 3. The provisions in the Bill are, in our view, disproportionate, discriminatory, ideologically-motivated and in breach of fundamental human rights as contained in national and international conventions and legislation. 4. The NASUWT believes that the proposed changes are completely unnecessary and are related to a long- standing ideological aversion to trade unions held by members of the Government, despite the fact that, or perhaps because, trade unions are representative of ordinary working people. 5. The provisions in the Bill stray beyond the commitments set out in the Conservative Party’s pre-election 2015 Manifesto and the NASUWT does not believe the Government has a mandate for delivering these reforms. 6. Furthermore, it should be noted that fewer than 30% of the electorate voted Conservative at the general election and therefore the majority of the electorate should be regarded as opposed to the measures set out in the Bill. 7. The NASUWT maintains that a number of the provisions on the face of the Bill represent a deliberate distortion of the pre-election Manifesto commitments and are, therefore, capable of being challenged and rejected by MPs and Peers. 8. The NASUWT believes that the proposed reforms constitute an attack on the fundamental human rights of working people to take industrial action and withhold their labour in line with various International Labour Organisation (ILO) Conventions, the UN Convention on Economic, Social and Cultural Rights, the European Social Charter and the European Convention on Human Rights. 9. The proposals seek to restrict, in particular, the rights of workers within the public sector. The NASUWT asserts that the right to strike is a fundamental right which should be enjoyed by all working people, regardless of whether they work in the public sector or any other sector. The NASUWT is particularly concerned by the discriminatory treatment of teachers working in the public sector, as compared with teachers working in the private (independent) sector. 10. The Trade Union Bill comes on top of a raft of measures to limit the ability of workers in the public sector to engage in collective action, lobbying and collective bargaining. The 2015 Global Rights Index, published by the International Trade Union Confederation (ITUC), has already placed on record serious concerns about restrictions to the rights of trade unions to campaign on behalf of workers as a consequence of 74 Trade Union Bill: Written evidence

the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014. According to the ITUC, infringement of workers’ rights currently places the UK on the same footing as countries such as Burundi, Georgia, Russia and Iran.111

Agency workers 11. The Government has also proposed to revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which prohibits employment businesses from providing temporary agency workers to employers facing industrial action. Agency workers would, therefore, supply the labour withheld by workers taking industrial action. 12. The Department for Business, Innovation and Skills (BIS) in September 2015 invited views on the proposal. The NASUWT’s response to that consultation rejected this proposal. 13. The ILO Committee on Freedom of Association has confirmed that, ‘the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term…constitutes a serious violation of freedom of association’. The inclusion of this measure in the Bill, to permit the use of agency workers to replace workers participating in strike action, is a clear and deliberate attempt to prevent strike action by trade unions and a violation of the UK’s international commitments and obligations. 14. The ILO consider that the replacement of strikers may only be justified ‘in the event of a strike in an essential service….and when a situation of acute national crisis arises’. However, the Government’s proposals as set out in the Bill do not refer to ‘essential’ services as defined by the ILO and therefore the extension of provisions to use agency workers to replace striking workers does not apply.

Comments on Specific Clauses in the Trade Union Bill Ballot thresholds for industrial action Clause 2 – Ballots: 50% turnout requirement 15. This clause imposes a new statutory requirement on unions in respect of the threshold to be satisfied before industrial action can be taken. 16. The Government’s proposals are predicated on a flawed understanding of the nature of industrial action taken by trade unions and a failure to recognise that industrial action by trade union members is taken as a last resort where attempts at resolving matters through dialogue and negotiation have failed. 17. This provision of the Bill seeks to advance the Government’s aim of preventing disruption as a result of industrial action by unions. However, this proposal on ballot thresholds will not prevent grievances culminating in lawful trade disputes or prevent industrial action being taken by trade union members following lawful ballots. 18. Instead, the Government’s proposals are intended to undermine the right to strike, and to weaken the position of workers that have legitimate workplace grievances and who seek to take industrial action in order to defend their collective interests at work. 19. The NASUWT strongly questions the need for this clause and its compliance with recommendations made by the ILO’s Committee of Experts and the ILO’s Committee on Freedom of Association, which have both concluded that account should be taken only of votes cast in a ballot. By extending the requirement on thresholds to those eligible to vote, the Bill should be regarded as disproportionate and excessive. 20. The Government has failed to demonstrate why this measure in respect of ballot thresholds is necessary.112 Instead, this appears to be a measure that is driven by ideological concerns rather than the promotion of good industrial relations. 21. The Government’s proposals fail to recognise that industrial action called by unions will, regardless of the ballot turnout, require the support of trade union members. Trade union members are free to decide whether or not take part in industrial action, regardless of the level of turnout in a ballot. There is simply not a shred of evidence that the majority of trade union members are coerced into participating in industrial action as a result of the will of a minority of members. 22. The NASUWT strongly questions the need for this clause at all and whether this measure is consistent with other obligations on the right to strike.

Clause 3 – Ballots: 40% support requirement in important public services 23. This clause imposes a new statutory requirement on unions in respect of the threshold to be satisfied before industrial action can be taken in particular areas of the public services described by the Government as ‘important public services’.

111 ITUC (2015), The 2015 ITUC Global Rights Index – The World’s Worst Countries for Workers, p27-28. 112 Regulatory Policy Committee opinion: consultation 1A ‘Ballot thresholds in important public services, Department for Business, Innovation and Skills’ 18 August 2015. Trade Union Bill: Written evidence 75

24. The Government’s proposals are predicated on a flawed understanding of the nature of industrial action taken by trade unions and a failure to recognise that industrial action by trade union members is taken as a last resort where attempts at resolving matters through dialogue and negotiation have failed.

25. This provision of the Bill seeks to advance the Government’s aim of preventing disruption as a result of industrial action by unions. However, this proposal on ballot thresholds will not prevent grievances culminating in lawful trade disputes or prevent industrial action being taken by trade union members following lawful ballots.

26. The Government’s proposals are intended to undermine the right to strike, and to weaken the position of workers that have legitimate workplace grievances and who seek to take industrial action in order to defend their collective interests at work.

27. The Government has failed to demonstrate why this measure in respect of ballot thresholds is necessary. Instead, this appears to be a measure that is driven by ideological concerns rather than the promotion of good industrial relations.

28. The NASUWT strongly questions the need for this clause at all and whether this measure is consistent with obligations on the right to strike and protection from discrimination under European Convention Article 10 (freedom of expression), Article 11 (freedom of assembly and association) and Article 14 (prohibition of discrimination).

29. The ILO Freedom of Association Committee confirms that the right to strike may be restricted or prohibited only in ‘essential’ services. ‘Essential services’ are defined by the ILO as those services where interruption ‘would endanger the life, personal safety or health of the whole of part of the population’.113 Such a definition is therefore not relevant to the provision of education to children and young people.

30. The NASUWT notes that the Bill describes education as an ‘important public service’; however, the use of the adjective ‘important’ does not afford the same meaning as ‘essential’ as described under existing international conventions and obligations, including Article 11 of the European Convention.

31. It appears that this provision in the Bill is deliberately intended to circumvent international conventions and obligations which would be to the detriment of the UK’s international standing, as well as being damaging to industrial relations domestically.

32. The definition of ‘important public services’ is also ambiguous, open to challenge and, according to the recent report of the Parliamentary Regulatory Policy Committee, ‘not fit for purpose’. Furthermore, the reference to ‘important public services’ is not consistent with the Conservative Party’s pre-election 2015 Manifesto commitment which referred explicitly to ‘essential public services’.

33. The Bill confirms that regulations brought under clause 2D may specify only certain services as meeting the definition of ‘important public services’. These services will include ‘education of those aged under 17’.

34. However, the Bill does not provide a definition of what may be included within the scope of ‘education of those aged under 17’ and is therefore open to abuse.

35. There is a danger over the ambiguity with regard to this provision in the Bill, which will have particular implications for employers in relation to school and college-based services which are provided partially for children aged under 17, or for those who are aged 17 or over. For example, in the context of provision within an FE college which is shared by students aged 14-16 but which is also available to older students, it is unclear from the Bill whether such provision would fall within the scope of the threshold governing ballots in respect of education of those aged under 17. Indeed, the proposal as set out in the Bill would create greater confusion for employers and could lead to unnecessary and potentially costly disagreements between employers and unions.

36. The specific proposals set out in the new clause 2B, which seek to impose the additional 40% threshold requirement onto those engaged in ‘activities that are ancillary to the provision of important public services’ would potentially extend the scope of this additional threshold to include all parts of the public sector and to organisations in the private and voluntary sectors that supply goods and services to the public sector. In short, the consequence of this provision would be indiscriminate, disproportionate and contrary to the stated intent of the Bill.

37. For example, it is likely that the Bill could be applied to employers that do not include public sector employers, but which provide goods and services to so-called ‘important’ public services (e.g. the private sector commercial provision of school meals). The scope of providers of goods and services, ancillary to the provision of important public services, is wholly unclear from the legislation and is potentially disruptive and excessive.

113 Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth (revised) edition, 2006 (paragraph 576). 76 Trade Union Bill: Written evidence

Information requirements relating to industrial action Clause 4 – Information to be included on voting paper 38. This clause amends the existing legislation in section 229 of the Trade Union and Labour Relations (Consolidation) Act 1992 by requiring additional information to be included on ballot papers that are sent to members. 39. The Government provides no satisfactory rationale or justification for requiring additional information – including the type or types of industrial action, the period or periods within which the industrial action is expected to take place – to be included on ballot papers. 40. The Government has provided not one shred of evidence that the information, currently provided by unions on ballot papers, is inadequate or misleading to union members who are the principal audience for ballot papers. 41. Furthermore, it should be quite clear that trade union members would neither vote in support of industrial action, nor participate in industrial action, if they were unclear about or did not support the aims of the industrial action. 42. The proposal to require additional information to be included on ballot papers is likely to give rise to unintended consequences which the Government does not appear to have considered. 43. Where trade unions are required to spell out in detail what specific forms of industrial action will be taken and when each action will be taken, this is likely to result in unions allowing themselves additional scope and latitude to pursue as wide a set of actions as may be necessary prior to the expiry of the ballot and in order to minimise the potential for any industrial action being subsequently deemed ultra vires. This would lead to greater scope for disruption rather than less. 44. Furthermore, this provision of the Bill, if enacted, has the potential to undermine constructive dialogue between unions and employers which might, in recognition of progress made, negate the need for particular actions to be taken. Instead, unions may be more inclined to proceed with industrial action until matters in dispute are resolved fully. 45. The Bill fails to recognise that trade unions adapt industrial action to recognise and respond to positive progress made during the management of individual trade disputes. 46. The Bill fails to recognise that the willingness of trade unions to continue to engage in dialogue and negotiation during the course of a trade dispute and where industrial action has been scheduled but not yet taken in order to resolve matters without the need for further escalation, is currently welcomed by employers. 47. The Bill in its current form could undermine dialogue and negotiation between unions and employers and would run counter to a key aim of the Bill by increasing rather than preventing disruption as a result of industrial action. 48. For example, if at any stage of a dispute it was possible to resolve matters without industrial action, the NASUWT would seek to suspend industrial action which had been notified to the employer in order to assist further negotiations. This would be compromised by the requirement in the Bill for unions to commit, prior to balloting, to a schedule of industrial action measures and where an arbitrary four-month timescale is imposed on the expiry of the mandate for industrial action. 49. It should also be noted that the NASUWT seeks to engage positively in referrals to ACAS conciliation. Such attempts at conciliation between the union and an employer may often last much longer than four months – i.e. beyond the proposed time limit for expiry of the mandate for industrial action. The proposals on the face of the Bill would impact adversely on the ability of unions and employers to engage in conciliation in future. Conciliation as a means of resolving a dispute and preventing disruption as a result of industrial action would therefore be prejudiced by the provisions in the Bill. 50. The Bill would also make the de-escalation of industrial disputes far more difficult to achieve. 51. The NASUWT therefore strongly questions the need for this clause at all and concludes that it will be counterproductive to the Government’s stated aim of preventing disruption.

Clause 5 – Information to members, etc. about results of ballot 52. This clause amends the existing legislation in section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992 by requiring for additional information to be included in information published to members in relation to the result of a ballot. 53. The NASUWT notes that the information required to be published by trade unions is intended to include details of whether the number of votes cast is at least 50% of those entitled to vote in the ballot and that, in the case of ‘important public services’ whether or not the number of individuals voting in favour of industrial action is at least 40% of those entitled to vote in the ballot. 54. The NASUWT strongly questions the need for this clause and, given the provisions of this clause, its compliance with recommendations made by the ILO’s Committee of Experts and the ILO’s Committee Trade Union Bill: Written evidence 77

on Freedom of Association which have both concluded that account should be taken only of votes cast in a ballot. By extending the requirement on thresholds to those eligible to vote, the Bill should be regarded as disproportionate and excessive and outwith international commitments and obligations. 55. The proposed requirement to include the information proposed on the result of the ballot could, in some instances, compromise the secret nature of the ballot, particularly in small units (including many schools) where it would be relatively easy for an employer to identify individual trade union members who have participated in a ballot and who have voted for or against the industrial action. This measure would result in increased levels of employer intimidation and victimisation of workers and further damage industrial relations.

Clause 6 – Information to Certification Officer about industrial action etc. 56. This clause amends the existing legislation in section 32 of the Trade Union and Labour Relations (Consolidation) Act 1992 by requiring for additional information to be returned annually to the Certification Officer in respect of industrial action taken by the trade union. 57. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional administrative burdens onto trade unions. 58. Given the extensive powers already available to the Certification Officer, there is no justification for the further extension of powers as set out in the Bill. 59. The NASUWT strongly questions the need for this clause at all which appears to be consistent with the Government’s view that trade unions are potentially criminal organisations that require state supervision. This is a view entirely consistent with the position of despotic governments around the world which, according to the International Trades Union Confederation, are ‘the worst countries in the world for workers’.

Timing and duration of industrial action Clause 7 – Two weeks’ notice to be given to employers of industrial action 60. This clause amends the existing legislation by extending the period for providing notice to employers of industrial action from seven days to fourteen days. 61. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional administrative burdens onto trade unions.

Clause 8 – Expiry of mandate for industrial action four months after date of ballot 62. This clause amends the existing legislation by limiting the potential life of an industrial action ballot to four months. 63. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional burdens and to prevent industrial action by trade unions. 64. The NASUWT does not believe that imposing an arbitrary four-month time limit for expiry of a ballot mandate is justified under Article 11 of the European Convention. This concern is further compounded by the provision in the Bill (clause 8 (1)) which indicates that the four-month period shall commence ‘on the first day when a voting paper is sent to any person entitled to vote in the ballot’. This is clearly intended to further deny trade unions the opportunity to undertake industrial action measures. 65. The NASUWT also argues that it is also unreasonable to apply a time limit that includes a period (i.e. before a ballot has closed) when members of a trade union would not be able to take part in any industrial action. It is excessive and disproportionate for the clock to be triggered before the outcome of a ballot is known.

Picketing Clause 9 – Union supervision of picketing 66. This clause amends the Trade Union and Labour Relations (Consolidation) Act 1992 by introducing new requirements on picketing. 67. The Government has failed to provide a sound or rational case for the introduction of this provision, which is designed to impose additional burdens and to prevent industrial action by trade unions. 68. The provisions on the face of the Bill do not satisfy the recommendations of the ILO’s Freedom of Association Committee which has ruled that picketing should only be restricted or interfered with where there is a threat to workers or to public order. The Government has provided no evidence of picketing which threatens the safety of workers or public order. 69. The proposals on the face of the Bill seek to discriminate against trade union members participating in forms of collective public protest, in a manner that does not apply to other individuals or groups. The NASUWT therefore argues that the provisions regarding picketing are discriminatory and potentially unlawful in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms under Article 10 (freedom of expression) and Article 14 (prohibition of discrimination), as well as ILO Conventions 87 and 111 on freedom of association and protection from discrimination in employment. 78 Trade Union Bill: Written evidence

70. The NASUWT is further concerned that the provisions in the Bill, whilst targeting trade union members, fail to address actions by employers and their agents to incite and provoke violence or to intimidate workers engaged in lawful industrial action. The NASUWT has extensive examples of intimidation of its members by employers.

Application of funds for political objects Clause 10 – Opting in by union members to contribute to political funds Clause 11 – Union’s annual return to include details of political expenditure 71. These clauses impose additional legal requirements on unions in relation to members contributing to political funds and reporting on such expenditure. 72. The Government’s proposals are predicated on a flawed understanding of the purpose of trade union political funds and the statutory provisions regarding their use. 73. The NASUWT, like the majority of trade unions in the UK, is not affiliated to any political party. The NASUWT does not provide financial support to any political party and is proud of its political independence. 74. The rules governing the use of the political fund are set out in the NASUWT Rules of Association. Members of the Union are therefore provided with clear information about the political fund and its use. 75. Given the requirement for trade unions to engage democratically with their members in order to amend provisions in their rule books and to have their political fund rules approved by the Certification Officer, the Bill also seeks to place trade unions outside the law given the unwarranted and unreasonable restrictions concerning the timescale (within three months of the legislation coming into force) for compliance with the new measures. 76. The retrospective application of these provisions in the Bill are evidently designed to increase the administrative burdens on trade unions. 77. The requirement as contained in draft clause 85 seeks to redefine the contractual relationship between unions and their members. The Government has provided no justification for the imposition of a requirement for union members to either pay a separate levy when contributing to the political fund or to receive a rebate where they have not agreed to opt in to the political fund. 78. Such interference in the internal organisation and protocols of the union is unnecessary and oppressive and, the NASUWT believes, is contrary to Article 1 of the European Convention.

Facility time Clause 12 – Publication requirements Clause 13 – Reserve powers 79. These clauses affect the collection and publication of financial and other data relating to trade union facility time and provides for an unlimited reserve power for a Minister of the Crown to impose such additional requirements as s/he sees fit in relation to facility time arrangements. 80. Notwithstanding the existing provisions in the Trade Union and Labour Relations (Consolidation) Act 1992, ILO Conventions 135 and 151 also require that the level of facilities for trade union representatives should be appropriate in order to enable them to carry out their functions promptly and efficiently. This is further expanded upon in the context of EU Directives, including EU Council Directive 89/391 on measures to encourage the health and safety of workers which includes the right to time for health and safety representatives. 81. The proposal to allow a reserve power for a Minister of the Crown at any time to override existing statutory and contractual rights and thereby reduce or remove facility time is unjustified and contrary to rights conferred under existing international obligations.

Certification Officer Clause 14 – Investigatory powers etc. Clause 15 – Enforcement by Certification Officer of new annual return requirements Clause 16 – Further powers of the Certification Officer where an enforcement order is made Clause 17 – Power to impose levy 82. These clauses amend the existing legislation in the Trade Union and Labour Relations (Consolidation) Act 1992 by increasing substantially the investigatory powers available to the Certification Officer, and to attribute to the Certification Officer the power of a court. 83. The Government has failed to provide any rational case for the introduction of these measures, which are designed to interfere in the internal organisation, protocols and independence of trade unions in a manner that is unnecessary, oppressive and contrary to Article 1 of the European Convention. 84. The provisions within the Bill constitute interference by the Government, through the office of the Certification Officer, in trade union matters that should be a matter for members of the union alone to Trade Union Bill: Written evidence 79

determine, including agreement of union rules, organisation, administration and activities. These provisions are not consistent with the provision of Article 2 of ILO Convention 98 (Freedom of Association).

85. The Bill gives sweeping powers to the Certification Officer, including the power to undertake investigations without the need for a complaint, and the power to impose sanctions which give the declarations the status of a court order but without the safeguard of the judicial system. The provisions are contrary to basic principles of natural justice and appear contrary to the European Convention Article 1 and Article 6.

86. The power of the Certification Officer to impose a levy payable to funding the office of the Certification Officer is unreasonable and further compromises the independence of the Certification Officer.

87. The proposal to require trade unions to pay the Certification Officer for the cost of any investigations undertaken, regardless of the outcome of any investigation, and to give the Certification Officer the power to determine the nature, scope and methodology of any investigations conducted is open to partisan abuse.

88. The proposals to extend the role of the Certification Officer could lead to substantial interference into trade union organisations without any recourse or rights of redress available to unions. If such a level of Government interference in other organisations was proposed in this country, it would be roundly condemned by all parties.

89. Given the powers already available to the Certification Officer, there simply is no justification for the extension of powers as set out in the Bill.

October 2015

Written evidence submitted by the British Medical Association (BMA) (TUB 26)

1. The British Medical Association (BMA) is an apolitical professional association and independent trade union, representing doctors and medical students from all branches of medicine across the UK and supporting them to deliver the highest standards of patient care. We have a membership of over 154,000, which continues to grow each year.

2. The BMA does not have a political fund and is not affiliated to any political party or to the Trades Union Congress.

3. The BMA welcomes the opportunity to make written and oral submissions to the Public Bill Committee.

Executive summary 4. The BMA believes that the Trade Union Bill risks diminishing not only the important role trade unions play in the work place, but also their legitimate right and need to represent their members’ interests. The imposition of tighter restrictions on trade unions may have the inadvertent effect of prolonging workplace disputes, thereby making it more difficult to resolve disputes amicably.

5. The Bill undermines workers’ rights to representation and their right to express an opinion through industrial action which is taken as a last resort. The BMA would always prefer to negotiate for a solution that is fair to both employees and employers.

6. Industrial action by trade unions, particularly in the health sector, is at historically low levels.

7. The introduction of ballot thresholds particularly (Clauses 2 and 3) are arbitrary, unnecessary and place punitive restrictions on workers employed in specified public services. Despite the Government’s claim that these measures are ‘not an attempt to ban industrial action’, the purpose of the ‘double threshold’ appears simply to be to make it more difficult for unions to organise industrial action.114 Clauses 2 and 3 should be removed from the Bill.

8. New powers for the Certification Officer threaten to intrude into union activities and affairs and presents a potential invasion of trade union members’ rights to privacy.

9. The Secretary of State for Business, Innovation and Skills has stated that ‘this Bill is not a declaration of war on the trade union movement’.115 However, this Bill, alongside the measures introduced by the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, appears to be another ideological attempt by the Government to curtail the legitimate activities of trade unions.

114 The Secretary of State for Business, Innovation and Skills (Sajid Javid), Trade Union Bill, Second Reading, 14th September 2015: http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150914/debtext/150914-0001.htm#1509146000001 115 The Secretary of State for Business, Innovation and Skills (Sajid Javid), Trade Union Bill, Second Reading, 14th September 2015: http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150914/debtext/150914-0001.htm#1509146000001 80 Trade Union Bill: Written evidence

The BMA’s concerns Ballots: 50% turnout requirement (Clause 2) and 40% support requirement in important public services (Clause 3) 10. Clause 2 of the Trade Union Bill seeks to amend the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) by introducing a requirement for a minimum threshold of a 50% turnout in all industrial action ballots. Clause 3 introduces an additional higher level of support of 40% of the eligible membership in favour of industrial action for specified important public services, including health, for any subsequent action taken to be legal. Therefore, if a union achieved a 50% response rate to its ballot, then 80% (40% of the entire eligible membership) of those respondents would need to vote in favour of strike action for it to be legal. 11. The BMA believes that the ballot threshold levels introduced under this Bill are arbitrary, unnecessary and inappropriate. We have seen no evidence as to why an additional 40% threshold in ‘important public services’ has been chosen; the purpose of this double threshold appears only to be to make it more difficult for unions to organise industrial action. 12. Trade unions must already gain a vote of support of 40% of its members under the rulings of TULRCA in order for its representation as a bargaining unit to be recognised and legitimise the union’s right to represent them. The BMA believes that introducing such a threshold for each individual instance of industrial action is unnecessary and undermines workers’ fundamental right to strike. 13. The BMA believes the ballot thresholds proposed in the Bill are arbitrary and unnecessarily stringent: the BMA calls on the Government to remove Clauses 2 and 3 from the Bill.

New powers for the Certification Officer (Clause 6, Clause 14, Schedule 1, Clause 16, Schedule 3, Clause 17) 14. The Trade Union Bill introduces a range of new requirements and powers for the Certification Officer and for the Certification Office. Clause 6 requires a trade union to provide a whole range of further information to the Certification Officer in its annual return. Clause 14 grants the Certification Officer new investigatory and enforcement powers: the Certification Officer will be able to initiate investigations or act on intelligence received by any third party, such as an employer or a member of the public. 15. Clause 14, Schedule 1 inserts a new Schedule A3 into TULRCA. Paragraphs 3 and 5 of the new Schedule outline circumstances where disclosures of a member’s name or address will be permitted and proposals for enforcement orders, which will place requirements on a union or person to produce documents, supply information or to co-operate with inspectors. 16. The Government has claimed that the ‘certification officer’s role remains that of a neutral regulator, independent of Government’116 and yet the BMA is deeply concerned by this development. Not only is this an intrusion into union activities and affairs, these new powers present a potential invasion of trade union members’ rights to privacy. In addition to the administrative and bureaucratic burden this will place on trade unions, the BMA is also questioning why this data is being collected at all by the Certification Officer. Clause 17 grants the Government a new power to levy a charge on trade unions to cover the costs of the Certification Officer. The BMA is concerned that this will impose significant new costs on trade unions to cover the running costs of the certification officer and the extensive new powers that the Certification Officer will be granted. The BMA notes that the Government is consulting at what level the levy should be set but would insist that any costs are proportionate.

Restrictions on paid time off for trade union activities (Clause 12 and 13) 18. Clause 12 inserts a new section 172A into TULRCA which gives the Government the power to require all public sector employers to publish data on activities undertaken by trade union officials. This could include: information on paid time off for union officials; how many employees are trade union officials; and information about employers’ spending on trade union duties and activities. Clause 13 also gives the Government the power to impose a cap on the proportion of working time spent by a public sector worker on trade union activities. 19. While it has been suggested that this new provision is designed to ‘promote transparency and public scrutiny of facility time, and to encourage those employers to moderate the amount of money spent on facility time in light of that scrutiny’,117 the BMA is deeply concerned that could be used by the Government to restrict the ability of unions to represent their members on a range of issues, such as resolving workplace disputes, collective bargaining and improving workplace practices. 20. The BMA notes amendment 46, which would limit the information which the Secretary of State can require public sector employers to the number of employees who are union officials and the costs of paying them for facility time. The BMA has repeatedly questioned why the Government is seeking to collect this data and is concerned that this is another unnecessary and unfair intrusion into the activities of trade unions that are legitimately representing the rights of their members.

116 The Secretary of State for Business, Innovation and Skills (Sajid Javid), Trade Union Bill, Second Reading, 14th September 2015: http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150914/debtext/150914-0001.htm#1509146000001 117 Trade Union Bill, Explanatory notes, page 9, point 54: http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0058/ en/16058en05.htm Trade Union Bill: Written evidence 81

21. The BMA notes amendment 50, which would change the regulation making power for clause 12 from the negative to the affirmative procedure. The BMA believes it is essential that any new measures, which will give the Government the power to require all public sector employers to publish data on activities undertaken by trade union officials, undergo thorough scrutiny and require approval by both Houses of Parliament before coming into force. October 2015

Written submission from SUEZ (TUB 27)

Preamble SUEZ (formerly SITA UK and still trading as SITA UK Ltd) is one of the largest waste and resource management companies in the UK, operating multiple facilities under relevant environmental and process based permits. We operate and have plans to develop a number of traditional and alternative treatment technologies to recover value from waste. Our day-to-day operations as well as these on-going investments are put at risk from the activities of non-striking workers during the course of an industrial dispute, be it an official dispute or a “protest”, especially when so-called “leverage” tactics are employed. We therefore welcome the Government’s Consultation on tackling intimidation of non-striking workers, in particular the intention to strengthen the Code of Practice on Picketing to cover these wider disruptive and intimidatory tactics. To this end SUEZ made a submission to the Carr Review of the law governing industrial disputes. This dispute in Doncaster is summarised briefly below, followed by a description of the protest at the Wilton 11 construction site in Redcar, Merseyside.

Doncaster This strike by workers of the Unite Union at the SUEZ facility at Doncaster, occurred over a dispute involving pay. The demand was for a £1.00 per hour increase across the board, which amounted to a 12% pay increase. A variety of intimidatory tactics were employed against non-strikers: —— Intimidation by strikers of employees who worked through the strike – harassing loaders whilst carrying out collections, waiting at the premises of maintenance providers (private locations). —— Union members pressurising non-union members to strike. Non-union members do not receive compensation for time off. —— Sabotage of private property – strikers visited the homes of workers, slashing car tyres and throwing paint stripper over a car. —— The Working Mens Club used by a non-striker was contacted by a striker (identity unknown) who threatened the steward of the club that if they allowed him to use the bar, the club would be vandalised. The club barred the non-striker. —— Threats of violence were made towards the site supervisors. —— Derogatory comments about the Company’s management were posted on Facebook, along with supposedly factual information that was manifestly untrue. —— On the last day of the strike, after an agreement had been reached and the workers were due to return, the Union official told the strikers that they did not need to return to work that day as they would get their compensation for the day. The strike lasted for 3 days. A 3-year deal was agreed after strike action, with an RPI increase based on the figure prevailing in April 2012.

Wilton 11, Merseyside

Background The project involves the construction of a 444,000 tonnes per year energy-from-waste facility for the Merseyside and Halton Waste Partnership on the Wilton 11 site leased from Sembcorp for up to 60 years. Energy generated by the facility will be fed into Sembcorp’s existing power stations. The facility will divert more than 90% of the Partnership’s residual waste away from landfill, ensuring that the region complies with its requirements under the European Union Landfill Directive. A new company has been formed called SITA Sembcorp UK Ltd (SSUK), a joint venture between SITA UK Ltd, Sembcorp and Itochu. The Engineering, Procurement and Construction (EPC) contractor is CNIM Clugston Wilton Limited. The site employs over 60 contractors under the management of the EPC Contractor, who hires all site workers and agrees their terms and conditions of employment. The project, due for completion in 2016, has received strong support from local communities. Approximately 75 long term jobs will be created to operate the facility and transfer station, with more than 200 jobs during construction, plus many more indirect jobs. 82 Trade Union Bill: Written evidence

Protests at Wilton 11 are organised and led by activists from the Teesside Construction Committee (not affiliated to any trade union) with the support of the GMB, Unite and UCATT trades unions. The Committee claims that the employment of ‘cheap’ foreign workers on the energy-from-waste project is undercutting domestic workers. The protest concerns the non-acceptance by contractors on site of the National Agreement for the Engineering and Construction Industry (NAECI) set of terms and conditions for the workers on the Wilton 11 construction site, and refusal to agree to a forensic pay audit. The trade union officials claim that their involvement in any protests is simply to protect the interests of their members.

Protests There have been 26 protests to date. The first protest took place in December 2014 at the gates of Wilton International industrial complex. There have since been a further 25 protests mainly at Wilton but with some at the offices of Merseyside Recycling and Waste Authority in Liverpool and at the SUEZ energy-from-waste complex at Haverton Hill on Teesside. At the start of the protests there were a large number (approximately 200) people attending; later protests have seen numbers of approximately 30 to 50 attending. The protests have taken the form of delaying drivers entering the site by engaging each driver in a conversation about workers terms and conditions on the site and giving out a leaflet to the drivers. This has resulted in long queues of traffic and to delays in the surrounding roads of up to two hours.

Intimidation during Protests SUEZ has witnessed a number of instances of intimidation by protestors. These include: —— A ‘foreign’ worker being stopped at the gates and a photo of his wage slip being taken by the protestors. This was allegedly deleted once the worker explained that he did not work on the Wilton 11 site. —— A ‘foreign’ worker at the SUEZ Haverton Hill site being asked to show his payslip to the protestors. No other workers were asked to supply payslips. —— The SUEZ Project Director being referred to as an ‘industrial gangster’ on video shot by protestors and being made generally available on social media (including Twitter and You Tube). —— Protestors sealing the lock on the gate at Wilton Centre, stopping vehicles accessing the site. —— Protestors blocking the gate of the SUEZ site at Haverton Hill. —— Reports of blocking cars from moving, verbal abuse of drivers, and climbing on car bonnets. —— Instances of intimidation on social media. —— Protests at the offices of Merseyside Recycling and Waste Authority, SSUK’s client. This protest concluded with an invasion of the lobby of Mann island in Liverpool where MWRA’s offices are based along with the blockade by protesters of a lane of traffic outside of the building, leading to intervention by the police. —— Other examples of threats and/or intimidation to SUEZ customers or suppliers include the reported abuse of a female employee of Sabic, a company located on the Wilton International Site, as she crossed the line of protesters; a threat to disrupt and undertake ‘civil disobedience’ at the waste sector professional body’s Gala Dinner Event at the Hilton Birmingham Metropole Hotel on 16 September, and an email from a representative of the Teesside Construction Activists on 20 April, threatening direct action against SGS, a scaffolding sub-contractor employed on the Wilton 11 site.

Involvement of Trade Unions While none of these activities relate directly to trade union officials, their complicity in encouraging disruptive and intimidatory behaviour on the part of the Teesside Construction Committee is clear. —— Annex A – Not Published. —— Annex B – Not Published. —— Annex C – Not Published. —— Annex D – Not Published. —— Annex E – Not Published.

Dialogue with Trade Unions There have been several meetings with the three trade unions involved throughout the project. Most of these have been cordial but have not brought about an end to the protests. On the employers’ side, efforts have been made to accommodate the trade unions by granting access to the site to speak to the workers (on three occasions), undertaking an audit of the workers wages on the site and providing the trade unions with high level statements to confirm that all workers are paid at least equivalent to relevant national agreement on wages for construction workers. Trade Union Bill: Written evidence 83

A meeting was arranged with unions in September 2014, independently chaired by the Advisory, Conciliation and Arbitration Service (ACAS). Initially all three unions refused to participate with ACAS involvement, but UNITE changed its mind after pressure from MWRA. GMB and UCATT reversed their decisions shortly afterwards. Further, unions insisted that the meeting should only proceed on the agreement that two named protesters be admitted. This was agreed. At the meeting SSUK stated that it had investigated all allegations made by the trade unions and had undertaken an extensive wage audit, finding no evidence of any systematic under-payment of foreign workers at the Wilton site. SSUK offered to present detailed results of this audit to ACAS for independent verification so that trade unions could be satisfied that there is no under-payment of workers at this site. The unions have refused, insisting instead on a full forensic audit that would include handing over employees’ bank details and other confidential, personal information. SSUK does not believe this to be a reasonable request, nor is it practical with over 60 different contractors on site with a variety of wage structures paying in different currencies.

Summary The protest at the Wilton 11 site is ongoing. The protestors report through social media that they will continue until the site adopts the NAECI terms and conditions of employment. The contractors on the site have stated that they will not adopt the NAECI terms and conditions. Local activists undertook an initial 20 days of action, now extended to 50. They have threatened to extend their protests beyond Wilton to SUEZ operational sites elsewhere in the UK. The most recent protest is scheduled to take place at the Wilton site on Wednesday 14 October. While SUEZ supports the right of workers to express their views through lawful protest, our experience of the actions at Doncaster and Wilton 11 highlights the grey area between official trade union-sponsored action and behind-the-scenes but nevertheless very visible trade union support for unofficial action that in both cases have frequently resorted to disruptive and intimidatory tactics in contravention of the Code of Practice on Picketing. The advent of social media has exacerbated the degree of disruption and intimidation that can be inflicted by protestors. In our view there is a clear need to update the Code to disallow unacceptable conduct by protestors and to hold unions to account when the latter appear to be condoning breeches of the Code when supporting protest action. We identify a number of areas that need to be addressed in a revised Code: —— The term “picketing” relates to a very specific manner of protest. In the cases of Doncaster and Wilton 11, protest action was not confined to the picket lines, but extended into the social domain of workers and company staff, and into company business. The Code should disallow these tactics, and expand its provisions to cover forms of protest other than picketing. —— Disruptive and intimidatory tactics essentially bypassed the picket line by using the outreach of social media. The Code should disallow the use of social media to incite protest or to spread threatening messages. The naming of individuals as a specific target for complaint or action should also be disallowed. —— Paragraph 37 of the Code states that a union will be held responsible for an unlawful act that occurs in the course of picketing under a highly restricted set of circumstances – such as authorisation by the union’s executive committee. None of these circumstances appear to apply in the case of Wilton 11, yet it is clear from the material presented in the Annexes that the unions helped orchestrate and certainly condoned the intimidatory actions of the protestors. The Code should widen the conditions under which unions are deemed to be held responsible under Paragraph 37, and additionally for lack of action to keep protests within the terms of the Code when that protest is supported by the union. October 2015

Further written evidence submitted by UNITE (TUB 28) Unite presents this evidence in addition to the written evidence submitted to the Committee on 5th October 2015 and in addition to the oral evidence submitted by Len McCluskey today. This evidence is on behalf of 1.4m Unite members. Although Unite is against the entirety of this Bill our evidence has concentrated upon what the Prime Minister has referred to as the core element of the Bill – the imposition of thresholds. Our evidence has attempted to offer solutions to the Government. This pragmatism should not be misrepresented as agreement with the Government but it is our attempt to ask the Government to regale from proposals that will remove the democratic voice of workers and will inevitably force Unite members outside of the law. Our proposal to this Government is to allow workplace ballots and in exchange Unite will accept the 50% threshold provision the Government is proposing. The Governments response is to voice a concern over fraud 84 Trade Union Bill: Written evidence

for eballots, a concern no one else appears to share, and so ignore the proposal of Unite or to misinform the public as to the Unite proposal. Unite seeks SECURED, SAFE, MONITORED WORKPLACE BALLOTS. Such ballots would take place in a workplace and be independently monitored by a Scrutineer. We suggest this because:– 1. This method of balloting already takes place under the legislation for the Central Arbitration Committee (CAC) under which unions seeks recognition in a workplace; 2. Workplace ballots for recognition (CAC) was legislated for under the Trade Union and Labour Relations Act 1992; 3. The turnout in such ballots exceeds 80% always; 4. ln all the years such ballots have taken place there has never been an allegation of union fraud; 5. Such ballots are independently monitored. The ballot scrutiny goes beyond that undertaken in the General Election. For those members who do not wish to vote in a workplace, or cannot vote in a workplace, they should be offered an option to vote by an alternative method. Obviously that alternative method should be modern and include e-balloting, there can be no logical reason as to why such a method is approved for elections such as the Conservative London Mayor candidate and then refused to UK workers. In those circumstances the “combination” ballot would be secured workplace, post (both currently provided for under legislation) and eballots. lf the Government is genuine about their concerns as to turnout they will accept this hand of pragmatism. lf they reject this hand of pragmatism then this Committee and others should ask if this is in fact an attempt to silence the voice of the workers Trade Unions represent and is instead an attempt to remove the right to strike from the UK workplace. October 2015

Written evidence submitted by the RMT (TUB 29)

Introduction RMT supports the TUC’s submission to the Committee. However, we wish to take this opportunity to highlight some of the particular difficulties regarding the impact of the proposed Bill on the transport industry, specifically rail.

Summary —— Both the GLA (2011) and an independent review (2011 – carried out on behalf of RMT and London Underground) both emphasised the need for the employer to create the conditions for dialogue to improve industrial relations. The Trade Union Bill and further restrictions on trade unions will only damage industrial relations. —— RMT believes that the reestablishment of the London Transport Wages Board and the London Underground Consultative Committee would be positive steps towards stabilising industrial relations on the Tube. —— Boris Johnson would not have been elected or re-elected mayor under his ballot threshold requirements. —— Boris Johnson, in contrast to his predecessor, has not once met an RMT General Secretary or other national official, to discuss industrial relations on the London Underground. —— The restrictions on picketing in the Trade Union Bill place an unfair burden almost impossible to carry on the trade union movement. This will further damage industrial relations. This also places a similarly massive and unnecessary burden on the police. —— Independent polling has shown that 65% of the tube users support the right of tube workers to engage in lawful industrial action (Survation, Feb 2014).

Industrial Relations on the Tube The key recommendation of the Greater London Assembly report State of the Underground published in September 2011 was as follows:

Recommendation 1 In light of the impact of strikes on London Underground’s service in 2010/11 and the risks to the 2012 Games, we recommend that the Mayor review his and TfL’s approach to industrial relations. Specifically, he should consider whether additional meetings with unions or other new structures might help improve relations. Trade Union Bill: Written evidence 85

RMT has consistently called for mechanisms for dialogue to prevent disputes, through positive engagement between London Underground management and RMT. For example, the Wages Board.

Wages Board The Wages Board was abolished when the 2000 Machinery of Negotiation was brought into force. Before that time parties could refer issues to the Wages Board on a binding or non-binding basis. Over the years a series of issues were considered by the Board. In relation to the 1997 referral on the length of the working week the Board said “The Board believes that a failure by LT/LUL to address the internal anomalies in the length of the working week will cause industrial relations problems in the future. It recommends therefore, that a Joint Working Party be set up within three months of the date of the Wages Board to start addressing a phased movement towards shorter hours”. As RMT pointed out in our written evidence to the Committee no such progress was made for LUL station staff for over seven years. We believe that the abolition of the Wages Board, which the RMT was against the time, removed a valuable mechanism which could help to resolve differences between the trades unions and management before industrial action took place. An independent review of industrial relations on the tube (with was facilitated by RMT and London Underground) was carried out by Professor John Goodman and was published in October 2011. The review again recommended increased dialogue between unions and management including “the creation of a standing mediation/arbitration body for collective disputes arising in London Underground. For many years this existed in London Transport more broadly. The advantage of a standing board with an independent chair and two other members drawn from senior people with considerable representative experience on each side, is that it will have or quickly acquire (e.g. by an in-depth induction programme) a specific understanding of the intricacies and operation of the Underground.” Furthermore, it noted the absence of any “active forum for consultation with the trade unions at LU level to discuss strategic and other issues, though there appears to be provision in the agreements for a number of such bodies which are not active. I recommend that LU considers this situation, and makes proposals to the trade unions. No recommendation is made on matters of detail, e.g. whether the scope of the Company Council should be extended or separate machinery be revived or created. An annual exchange of forward views with the trade unions would be another possibility.” Progress has not been made on the recommendations of either the GLA through their State of the Tube report, or the Independent Review of Industrial Relations. RMT believes that the provisions of the Trade Union Bill move in the opposite direction of travel to these recommendations, and that the Trade Union Bill was considerably damage industrial relations on the tube.

Boris Johnson & the Ballot Threshold On the subject of a 50 per cent threshold, it’s worth noting one inconvenient truth for the Mayor: he wouldn’t have been elected (or re-elected) under his own rule. In 2008, turnout in the London mayoral election was 45 per cent, before falling tom 38 per cent in 2012.

Picketing & the Trade Union Bill All rail unions were involved in a recent dispute on London Underground. There are 270 separate stations on the Underground and dozens of train depots, permanent way depots, signal boxes, offices and other workplaces in addition. RMT, for example, balloted London Underground members across 445 workplace locations. Theoretically, a picket could be maintained at each workplace location, though the unions did not do so, though they did picket all or nearly all London Underground Stations, several of which have several separate entrances. The likelihood of picketing all entrances to all worksites will be increased by the proposed threat of agency workers being hired during strike action. If the Bill is enacted each union must appoint a picket supervisor and provide him/her with a letter of authority and an armband. It is presumed that the letter of authority must be personally addressed to the supervisor rather than conferring authority on any member in possession of it. In most unions only the General Secretary has authority to sign correspondence. The task of identifying picket organisers and supplying each with a letter of authority would be duplicated in each (there is no provision in the Bill for the sharing between unions of a picket supervisor). Thus in the London Underground dispute each union would have identify in advance hundreds of supervisors and send out hundreds of letters (and armbands). Any failure in this operation would render the picket at the relevant place unlawful for that union. Provisions not yet in the Bill will require that 14 days before industrial action starts, unions must inform employer, the police and the Certification Officer any plans for picketing including when and where any protests or pickets will take place (in this example up to 445 London Underground workplace locations with any protests in addition), how many people will participate in each of those, whether there will be loudspeakers, props, banners etc and whether the union will be using social media (specifically Facebook, Twitter, blogs, websites) and what those blogs and websites will set out. The information must confirm that the union has informed members of the relevant laws. The union must also outline whether other unions are involved and 86 Trade Union Bill: Written evidence

the steps to liaise with those unions. This may be problematic where common ground over all of the issues involved has not been reached between what may be rival trade unions. These requirements will place an impossible burden on unions. The number of pickets at a place are limited to six by the Code of Practice on Picketing. It is not the practice of the police to tolerate at a picket, six from each union involved. At any place of picketing therefore, the six would be composed, in the circumstances of this dispute involving four unions, of four picket supervisors – two of whom would have one member to supervise, and two of whom would be supervising only themselves. Though unions will be permitted to organise a picket jointly and rely on one union to appoint a picket supervisor, there will be reluctance to do so. This is because any failure on the part of the appointing union to select a supervisor with relevant knowledge, an adequate letter of authority and an armband, or to ensure that the supervisor knows of his/her appointment and remains readily contactable by the police and in sufficient proximity will render the picket unlawful and the non-appointing unions (and their picketing members) liable. The unions are also very unhappy that the identity of each supervisor must be disclosed to the police and to the employer (whose representative will inevitably be a person ‘who reasonably asks to see’ the letter of authority). There is an understandable fear of recriminations. Furthermore, the fact that the authorisation letter must also be shown to ‘any other person who reasonably asks to see it’ may mean a potentially massive number of requests from members of the public and employers challenging the authenticity of the letter. This potential for this is very significant when dealing with the travelling public due to the vast numbers adversely affected by industrial action (on its busiest day in 2014, 4.5 million journeys were taken on the London Underground – an average of over 10,000 per workplace location). This also places a similarly massive and unnecessary burden on the police.

National Rail RMT also recently balloted its Network Rail membership for industrial action across some 1,130 workplace locations, where the examples of negative burdens for both trade unions and the police outlined above would be multiplied. In terms of rail franchises, it is worth noting that the number of workplace locations are still very substantial. For example, Northern Rail manages 463 stations, First Great Western manages 208 stations, Arriva Trains Wales manages 244 stations and the new Thameslink, Great Northern and Southern Franchise sees the Thameslink & Northern business unit manage 239 stations and Southern business unit manage a further 158 stations. It is important to note that there may be more than one workplace location in each station and that these figures do not include other workplace locations such as depots.

Seafaring An additional example is the ballot recently conducted on the Caledonian MacBrayne ferries in Scotland where workers based out of 11 different terminals were balloted. It is important to note that many of these workplaces are in geographically remote locations, where police may not be immediately available to fulfil the new onerous requirements proposed in the Bill. October 2015

Written evidence submitted by Tony Wilson, Managing Director, Abellio London & Surrey (TUB 30) As I recall, the committee asked me to respond on two points yesterday as below: —— How many people who normally use our buses would have been inconvenienced by the two strikes in January and February? —— The best answer I can give is based on the fact that, on a typical weekday, we carry about 475,000 passengers. All would potentially have faced disruption due to the reduced services we operated but this would have been very much more pronounced on those from Beddington and Twickenham depots where we had very low staff turn-out and some routes with no buses running at all. —— What were the details of the vote in the December 2014 ballot over sector-wide collective bargaining? —— 245 ballot papers returned —— 216 ‘Yes’ (88%) —— ‘Yes’ vote represented 21% of Unite members (1,031) and 12% of the total affected workforce (1,770) at the time I trust this is sufficient. October 2015 Trade Union Bill: Written evidence 87

Written evidence submitted by Cllr Darren Rodwell, Leader, London Borough of Barking & Dagenham Council (TUB 31) I am writing to express my deep concerns about the proposals contained in the Trade Union Bill currently being considered at Committee Stage in the House of Commons. This Council recognises the positive contribution that trade unions and trade union members make in our workplace. We value their commitment to the delivery of good quality public services in Barking and Dagenham, especially in these challenging economic times for local authorities. In its current form, the Trade Union Bill is nothing short of an attack on basic freedoms that has no place in modern Britain. It is an attack on this Council’s right to manage its own affairs and would undermine our relationship with our workforce as a whole. This Council is happy with the check-off arrangements we currently have in place for deducting trade union membership subscriptions through our payroll. Check-off is cheap, easy to administer and an important part of the support we provide to staff. It should not be interfered with by central Government. We also value the role that facility time plays in creating good quality local services that are responsive to people’s needs. As a Council, we negotiate and agree facility time in partnership with our trade unions to suit our specific requirements and it would be totally inappropriate for this to be controlled by Whitehall. Through this Bill, the Government has declared war on organised labour. This Council resolves to support the campaign against this anti-democratic set of proposals and will, as far as possible, seek to continue its own locally agreed industrial relations strategy in the face of this dangerous Bill. October 2015

Written evidence submitted by the Communication Workers Union (CWU) (TUB 32)

Introduction 1. The Communication Workers Union (CWU) is the largest union in the communications sector in the UK, representing nearly 194,000 employees in the postal, telecoms, financial services and related industries. 2. The CWU believes that the Trade Union Bill is undemocratic, unjustified and in breach of international labour and human rights laws. It represents a significant restriction of the rights of workers and will wrap trade unions in costly red tape. There is no evidence the proposals are necessary or proportionate to any identifiable problem, and it is therefore difficult to avoid the conclusion that the proposals are politically motivated. 3. The Bill has been widely condemned by human rights groups including Amnesty International and the British Institute of Human Rights as a major attack on civil liberties in the UK. It is opposed by many other organisations, including the Chartered Institute of Personnel and Development which has labelled the proposals outdated and counter productive. 4. The Bill will undermine workplace relations and prolong industrial disputes. It presents a major barrier to creating the high wage, high skill, productive economy the Government claims it wants to achieve. This is a concern shared by mainstream commentators, with the Financial Times arguing that the Bill risks fomenting more workplace disruption, that it is disproportionate, and that more worker bargaining power would restore some overdue wage growth.118

Ballot thresholds for industrial action 5. The proposed strike ballot thresholds119 contained in the Bill are inconsistent with a free and democratic society and conflict with the Government’s obligations under international law, including International Labour Organisation (ILO) Convention 87 on freedom of association and the right to organise. Restricting the right to strike will create a serious imbalance of power between employers and workers, which will undermine workplace relations and prolong industrial disputes. The proposed ballot thresholds are unnecessary in protecting public health and safety given the minimum service level agreements in place for essential services during strike action. 6. Rather than making strike laws fair, we believe that the proposals will deny workers a voice in defending their interests in the face of government austerity and weakened employment rights. As we have said above, in the current political climate, it is therefore hard to avoid the conclusion that the proposals are politically motivated. They will further disenfranchise working people already struggling with job insecurity and low pay, and this will bring damaging consequences for public services and the wider economy. It will do nothing to promote the high wage, high skill, economy the Government has stated that it wants to achieve in the pursuit of greater productivity.

118 UK government crosses the road to pick a fight, Financial Times, 14 September 2015, http://www.ft.com/cms/s/0/e7a25a76-5acc- 11e5-a28b-50226830d644.html 119 The proposals require a 50% turnout in all industrial action ballots, and 40% of those entitled to vote must be in favour of industrial action in certain essential public services. 88 Trade Union Bill: Written evidence

7. Curtailing the right to strike will remove an effective spur to reaching a negotiated settlement, extending industrial disputes and aggravating workplace grievances. This in turn will be harmful for public services and the wider economy. The Regulatory Policy Committee120 (RPC) has expressed similar concerns about the shortcomings of the Government’s impact assessment, recommending that ‘Further analysis would be useful of how the restriction of strikes might affect the distribution of income between workers and employers, industrial relations generally and employee motivation in the longer term’.121 8. The CWU also questions the necessity of the proposals given that the number of days lost through industrial action has remained at historically low levels for the last twenty years, and the level of strike action is lower in the UK than in many other European countries. The latest available figures show that on average, 24 days were not worked per 1,000 employees due to industrial action in the UK between 2009 and 2013, compared with 171 days in France, 82 days in Denmark, and 65 days in Spain.122 9. The Financial Times recently questioned the justification for the proposals given the low level of strike action in the UK, saying that ‘Britain does not have a problem with strikes. A right to lay down tools may be enshrined in law, but it is one seldom exercised. The loss of 788,000 days to strikes barely registers when set against the 3m to 6m typical in the 1980s, or 130 million days typically lost to illness.123 10. The balance of power between unions and employers is already weighted too heavily in favour of employers, and as an open letter signed by over a hundred industrial relations academics recently stated, ‘trade unions in Britain are not too strong, but too weak’.124 Rather than introducing tighter restrictions on strike ballots, we believe the Government’s priority must be to encourage positive workplace relations, which will create a more motivated, committed workforce and help to address the UK’s relatively low productivity performance.125 11. The CWU rejects the Government’s claim that the new rules will introduce a fairer democratic mandate for strike action.126 By effectively treating abstentions as ‘no’ votes, we regard the proposed thresholds as being distinctly undemocratic and believe that they conflict with the Government’s obligations under international law as set out in ILO Convention 87 on freedom of association and the right to organise. They also conflict with the European Social Charter which guarantees freedom to form trade unions to defend economic and social interests, and the European Convention on Human Rights on the right to freedom of association and assembly. 12. Similar ballot thresholds can only be found in Bulgaria and Romania, both of which breach international law. The ILO has rejected a claim from the Bulgarian government that its strike ballot threshold was ‘liberal in character’, and the Bulgarian government has been urged to change the law ‘in order to bring it into closer conformity with the principles of freedom of association’.127 13. If the Government was interested in improving workplace democracy it would allow unions to give their members the option of taking part in ballots through secure workplace and electronic balloting alongside the current postal system. This would make it easier for union members to vote and is likely to considerably increase participation in strike ballots. 14. The Government must also consider that grievances amongst workers are likely to manifest themselves in other ways in the absence of an avenue for legitimate protest. Restricting the right to strike will lead to a frustration amongst workers with a genuine concern or grievance that their legitimate aims are being denied to them by law and this will mean more unofficial disputes that in reality a trade union may have no control over. This will not be conducive to better industrial relations.

New information requirements relating to industrial action 15. There are already extensive obligations on trade unions to provide detailed information to employers in relation to industrial action, and we see no justification or purpose in introducing further information requirements. The requirement to indicate on the voting paper the period within which the industrial action is

120 The Regulatory Policy Committee provides the Government with external, independent scrutiny of new regulatory and deregulatory proposals and was appointed by Government on 21st July 2015 as the independent body verifying the costs and savings of changes in law that affect business and civil society organisations. 121 Ballot thresholds in important public services, RPC opinion, 18th August 2015 https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/454855/RPC15-BIS-2402__3010__-_Ballot_thresholds_in_important_public_services_-_IA_c__-_ opinion.pdf 122 Days not worked due to industrial action, 2009 – 2013, European Trade Union Institute, January 2015, http://www.etui.org/ Topics/Trade-union-renewal-and-mobilisation/Strikes-in-Europe-version-2.1-January-2015#indicatorsused 123 UK government crosses the road to pick a fight, Financial Times, 14 September 2015. 124 Trade union bill not backed by evidence, Guardian Letters, Monday 17th August 2015, accessed at: http://www.theguardian.com/ law/2015/aug/17/trade-union-bill-not-backed-by-evidence 125 UK output per hour is 17% below the G7 average, 27% below France, 28% below Germany and 31% below the US, as set out in the Government’s productivity plan ‘Fixing the Foundations’, HM Treasury, July 2015 https://www.gov.uk/government/uploads/ system/uploads/attachment_data/file/443897/Productivity_Plan_print.pdf 126 New legislation to make strike laws fair for working people https://www.gov.uk/government/news/new-legislation-to-make- strike-laws-fair-for-working-people 127 Tories 40% threshold for industrial action ballots breaches ILO principles, 22 January 2015, Campaign for Trade Union Freedom http://www.tradeunionfreedom.co.uk/tories-40-threshold-for-industrial-action-ballots-breaches-ilo-principles/ Trade Union Bill: Written evidence 89

expected to take place will be extremely challenging for trade unions given that it is often difficult to predict the timing of industrial action. 16. The new duty to require a trade union to include details of industrial action in its annual return to the Certification Officer (CO) is simply placing additional burdens on unions and no convincing rationale has been put forward by the Government to justify this. 17. Overall, we believe these rules will place additional costs and constraints on trade unions pursuing legitimate aims on behalf of their members. They will create new avenues for employers to prevent industrial action, or to claim damages after the event, on the basis of minor infractions at a time of growing insecurity in the world of work.

Timing and duration of industrial action 18. The requirement to give employers 14 days’ rather than 7 days’ notice of industrial action will assist employers in putting contingency plans in place during periods of strike action. This combined with the information requirements on the period of action, and the separate proposals to permit the use of agency workers to cover for striking workers,128 will further restrict the right to strike by enabling employers to bring in a replacement workforce. In our view, this amounts to a clear infringement of the right to strike, which conflicts with the Government’s obligations under international and human rights law, including ILO convention 87 on freedom of association. 19. The expiry of a mandate for action four months after the date of the ballot will create substantial legal and administrative costs for unions, who already spend significant sums on ballots. There are likely to be unintended consequences of limiting the lifetime of a ballot, such as creating an incentive for workers to take more action in a short space of time. This will be unhelpful to employers and damaging for industrial relations. Overall these proposals represent unnecessary additional hurdles and financial burdens which will curtail the ability of unions to function effectively in the interests of working people.

Picketing 20. We strongly oppose the Government’s proposals to further restrict the right to picket and there is no evidence of a problem in relation to unions picketing in the UK today. 21. The Government’s proposals are disproportionate as they would see trade unions potentially lose protection from tort liabilities for minor infractions. Forcing individuals to wear armbands and to register with the police represents a fundamental attack on civil liberties. The Government is silent about the intimidation of workers by employers in relation to strike action, which the CWU has evidence of. Given that the proposals are based purely on one-sided, anecdotal evidence, we believe that they have no credibility. 22. Trade unions must already comply with the provisions set out in the statutory Code of Practice on Picketing (which places significant and detailed requirements on trade unions and their members) with unlawful picketing regulated by both criminal and civil law. In making its case the Government has failed to present any substantiated evidence of intimidation in relation to picketing. Indeed, the Regulatory Policy Committee’s impact assessment states, “most picketing action taken by unions appears to adhere to the guidelines set out in the Code.”129 We therefore see no legitimate case for the Government to make aspects of the Code legally enforceable or to create new criminal offences such as an offence for “intimidation on the picket line”, which have been the subject of wider Government proposals under consultation. 23. We also believe that the wider proposal to require unions to publish their picketing and protest plans, which has again been the subject of consultation, is an attack on basic civil liberties and freedom of expression. It represents an unjustified level of monitoring of legitimate union activities, including the use of social media, which is not applied to other forms of protest in Britain. We also question why the proposals do not include a requirement for employers to report on their plans during a dispute, including communications with their workforce and whether they intend to use agency workers as strike-breakers, which may have public safety implications. 24. Overall the Government’s proposals to further restrict the right of workers to picket in defence of their jobs and livelihoods represents an attack on basic human rights and the right to freedom of expression and assembly in particular.

Opting in by union members to contribute to political funds 25. We are firmly opposed to these proposals, including the (apparent) requirement for new and existing trade union members to opt in to union political funds within three months of the Act (though the Bill and the explanatory notes are unclear on this point), and the lapsing of the opting-in notice after 5 years. We believe that the proposals are designed to eradicate the funding available to trade unions for the conduct of political

128 In connection with the Trade Union Bill, the Government is proposing to enable employers to hire agency workers to replace striking workers through the removal regulation 7 in the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Conduct Regulations). 129 Department for Business, Innovation and Skills, Impact Assessment: Tackling intimidation of non-striking workers (consultation impact assessment), July 2015, p. 7. 90 Trade Union Bill: Written evidence

activities, thereby eliminating their political influence. Trade unions are democratic organisations and they should have reasonable scope to further their members’ interests politically. 26. The proposals also appear to be designed to weaken the Labour Party through significantly reduced trade union financial support. This will be hugely damaging for the strength of democracy in the UK, weakening political engagement and silencing legitimate political opposition and debate. 27. In our view, this interference of the Government in the internal affairs of a trade union is contrary to the right to freedom of assembly and association under Article 11 of the European Convention on Human rights and Article 5 of the European Social Charter. It also contravenes the Government’s duty to respect the right of workers and trade unions, as set out in ILO Convention 87, article 3.

Union’s annual return to include details of political expenditure 28. We firmly reject the proposals to require unions to include detailed information on expenditure from political funds in the annual return to the Certification Officer, and the ability of the CO to impose a financial penalty on unions for compliance failures. These requirements will create costly and debilitating new administrative burdens for trade unions for no justifiable reason.

Facility time 29. The CWU strongly opposes the proposals regarding facility time in the public sector, which would permit the Government to introduce regulations that would restrict rights to union facilities, and cap the percentage of the employers’ pay bill that is used for facility time. The proposals would also give the Government the power to modify collective agreements. This is the first time the British Government has sought the power to rewrite collective agreements of which it disapproves. 30. The introduction of a cap will reduce the capacity of trade unions to represent their members and resolve workplace issues, which will damage industrial relations and prolong disputes. We believe this proposal also conflicts with EU law, which protects the rights of health and safety reps to paid time off for their duties and training and the rights of union reps to paid time off during consultations on collective redundancies. The proposals to restrict rights to union facilities and to rewrite collective agreements are an attack on trade union and human rights, and a clear breach of the ILO conventions and the European Convention on Human Rights.

Certification Officer 31. We strongly reject the proposals to extend the role, remit and powers of the Certification Office (CO), which will enable the CO to investigate and take action against a trade union on the basis of information from any third party, and without the need for an application or complaint from a member. We regard this as a completely inappropriate measure which will leave trade unions open to investigation as a result of vexatious claims from the media, disgruntled members of the public, and employers who will risk no legal costs in raising a complaint in this way. The new investigatory powers represent a major new intrusion by the State into union affairs and they will deter people from joining trade unions for fear of discrimination, victimisation or blacklisting. 32. The new powers will also enable the CO to impose a fine on a trade union of up to £20,000 for failing to take particular action within a certain timescale. This is completely disproportionate to any identifiable problem and will present significant additional costs for trade unions given the difficulties and the expense of complying with the new rules. 33. We also reject the proposal to impose a levy on trade unions to cover the CO’s costs. It is unclear what these costs will be at this stage but they are likely to be significant. The CWU believes it is not the responsibility of our members to fund what, in our view, is an ill-conceived role that the government intends the CO to have. October 2015

Written evidence submitted by the National Union of Teachers (NUT) (TUB 33)

Introduction 1. The purpose of this memorandum is to provide a commentary from the National Union of Teachers on the Trade Union Bill. The NUT is the largest teachers’ union and has over 330,000 members. 2. The NUT considers the Bill to be an unprecedented attack on trade unions and the rights of working people. The Bill threatens civil liberties and would tie unions up in regulation. 3. This submission sets out the key proposals of importance to the Union and provides a commentary on particular amendments that have been tabled. Trade Union Bill: Written evidence 91

Ballot thresholds for industrial action (clauses 2 – 3) 4. By imposing thresholds for ballot returns, treating an abstention as a ‘no’ vote, and requiring even higher thresholds for teachers and some other public sector workers voting on industrial action, the Government is seeking to undermine the right of working people to take industrial action. 5. The right to strike is protected by a number of international and European provisions, including ILO Convention 87 (which was ratified by the UK in 1949), the European Social Charter and the European Convention on Human Rights. The ILO Labour Relations (Public Service) Convention 151 also provides that public servants must enjoy the same political and civil rights as other employees. The NUT would argue that any interference with this right must be fully justified and that the Government has failed, as yet, to provide any such justification. 6. The Bill states that in education the 40% ‘yes vote’ requirement will apply to education services for those aged under 17 and be limited to state-funded schools. 7. Naturally the NUT considers that education is an ‘important public service’; it considers it a vital public service for the benefit of children and young people and the long term benefit and happiness of our country. The Union does not, however, accept that education should come within any restrictions as proposed. 8. The UK’s international obligations require that teachers as with other employees must be able to exercise their democratic right to take industrial action. The requirement of the 40% threshold restricts this as will the requirement for 50% turnout. Decisions of the Committee on Freedom of Association of the ILO recognise that there may be a limitation to the right to strike in ‘essential’ public services, but this is only where an interruption due to strike action “could endanger the life, personal safety or health of the whole or a part of the population”. 9. In relation to education there are no considerations of risk of life or serious injury caused by interruption to the school timetable when teachers make the difficult decision to go on strike. 10. Indeed the ILO Committee on Freedom of Association has determined on a number of occasions that teaching does not fall within the definition of essential public services for these purposes. Furthermore, ILO instruments require that those limited circumstances in which strike action is restricted, there must be compensatory guarantees of adequate protection to the workers in those sectors. There has been no such suggestion from Ministers, that adequate compensatory guarantees will be provided. Therefore, the impact of these provisions will deny teachers the same rights as other workers. 11. Introducing ballot thresholds as a statutory requirement will affect freedom of association. Unions will no longer be able to take decisions within their own democratic structures and will instead have to comply with state imposed thresholds. 12. If the Government was serious about boosting turnout in industrial action ballots they would support New Clause 1 which would enable unions to use electronic voting for statutory ballots and elections.

Picketing (clause 9) 13. Currently, the law protects the right for trade union members to engage in peaceful picketing at the entrance to their workplaces. Trade unions already have to comply with the provisions that are set out in the statutory Code of Practice on picketing, which places detailed and significant requirements on unions including limiting the number of people on a picket line to six. 14. In an effort to tie unions in red tape and increase costs, Clause 9 of the Bill would force unions to report their picketing arrangements to the police, including time, location, number of picketers and even the use of banners and loud speakers. 15. In addition, under the proposals unions would need to publish information about any social media messages they will be posting on the day. A designated ‘picket supervisor’ would have to be present at all times with a letter of union authorisation. If unions do not follow these rules they could receive fines of up to £20,000. 16. The NUT believes that the Government’s proposals are unjust, unnecessary, and will undermine the legitimate right of trade union members to freely associate and assemble. The Government has been unable to cite any evidence of widespread intimidation by striking workers. It is noted that their consultation document and impact assessment on this issue referred to certain incidents but lacked any detail as to whether these incidents are widespread. 17. What is even more surprising is that the Government is relying on ‘evidence’ from the Carr Report to justify these changes. This is despite the fact that Mr. Bruce Carr QC explicitly stated in his report that he did not have enough evidence to make any findings or recommendations to change the current legal framework. The Government’s own impact assessment states that evidence of any breaches of the current code of practice in relation to picketing could not be substantiated. 92 Trade Union Bill: Written evidence

18. We note that the Government has not set out what measures will be put in place to protect those workers identified on a picket line and the picket supervisor from victimisation and/or being blacklisted by employers. We believe the Government’s approach is not even handed. 19. The NUT believes that that in the absence of any real evidence of intimidation there is no need for these proposals. Should they be implemented they would undermine the right of working people to go on strike as a last resort. 20. The NUT is supportive of Amendments 26, 27, 28, 29, 30 and 33 as these would remove the onerous and unnecessary restrictions on picketing activities.

Facilities time (clauses 12 – 13) 21. The Government is seeking to limit the amount of facility time provided to public sector unions. In doing so, the Government is seeking to undermine unions’ abilities to represent their members effectively. 22. The Bill provides the Government with the power to require all public sector employers to publish information each year on the annual amount of funds used for trade union facilities, including the paid time off for union officials (Clause 12). 23. Amendments 47 and 48 would helpfully remove health and safety representatives from the reporting requirements. Health and safety representatives make a huge contribution to workplaces and to employers and also save taxpayers money. Research commissioned by the then Department of Trade and Industry in 2007, showed that by reducing lost time from occupational injuries and work-related illnesses, union safety reps save taxpayers between £181m and £587m (at 2004 prices) every year. 24. The Bill also includes a reserve power (Clause 13) which would permit the Government to introduce an arbitrary cap on the amount of money each authority can spend on facility time. The power will mean that the government can be selective as to which public authorities and indeed local authorities may be forced to impose such a cap. 25. The Bill represents a misguided attack by Ministers on trade union facilities time: —— Involving trade union representatives effectively can help reduce dismissal and exit rates, meaning lower recruitment costs and better staff morale and productivity. It also reduces workplace-related injuries and illnesses through better health and safety standards. —— The return on the investment made in trade union facility time is many times the sum spent. Research commissioned for the TUC from the University of Hertfordshire stated that for every £1 spent between £3 and £9 of benefits were accrued. —— The Bill puts at risk collective agreements that employers and unions have signed up to on facilities time. There is no justification for the state to interfere in agreements which both unions and employers are happy with. 26. Amendment 51 ensures that the Bill does not interfere with the devolved administrations ability to decide how they manage their relations with the trade unions. The NUT notes the letter from Wales’ First Minister to the Prime Minister of 9 September130 in which he said: “Similarly, it cannot be right for the UK Government – blind to policy priorities and devolved service delivery reforms in Wales – to specify how much union ‘facility time’ devolved public sector employers should allow.”

Certification Officer (clauses 14 – 17) 27. A less publicised aspect of the Bill would see a significant extension of the role, remit and powers of the regulator for trade unions, the Certification Officer. 28. The Certification Officer would be able to request more resources to regulate unions by increasing the levies paid, thereby making workers pay for the statutory regulation of their own unions. These proposals are all of a piece with the Government’s concerted attack on the powers of trade unions and their members. 29. The Certification Officer will be able to initiate an investigation against a trade union based on complaints from third parties (including employers). They will be able to subcontract the investigation, for example to an expensive accountancy form, and then pass the cost on to trade union members through their subscriptions. The NUT considers this to be blatantly unfair. The Union welcomes Amendment 68 which would mean that only the Certification Officer or members of the Certification Officer’s staff would be able to investigate a union.

Agency workers 30. This proposal will put employment agencies in a very difficult position as it will risk them having to take sides in an industrial dispute. Large agencies operating across Europe have signed joint agreements with trade unions not to replace striking workers. There is a reason why such agreements are in place, to promote good industrial relations.

130 http://gov.wales/newsroom/firstminister/2015/10492012/?lang=en Trade Union Bill: Written evidence 93

31. This proposal will put agency workers in an impossible situation. Many of our members are supply teachers employed by employment agencies. The Government has assumed that they will be willing to cross a picket line. They will not. Will pressure be put on them to cross a picket line by agencies who may not offer them future assignments if they refuse to do so? How will they be protected from victimisation due to their trade union membership? The Government has not dealt with these issues in the consultation document or the impact assessment and has failed to approach the matter in an even handed manner. 32. The Government’s proposals will divide the workforce and severely undermine trust between the parties. 33. Further information about the NUT’s response to this proposal is set out in the Union’s response to the Government’s earlier consultation on the matter.131 October 2015

Written evidence submitted by CollegesWales/ColegauCymru (TUB 34) I am writing on behalf of CollegesWales/ColegauCymru to submit evidence on the Trade Union Bill. CollegesWales is the representative body for Wales’ 14 further education (FE) colleges and institutions. It is the organisation through which colleges as employers negotiate collectively with the unions on pay and conditions. Ultimately, however, it is college governing bodies that decide the terms and conditions of their employees. CollegesWales is a full participant in Wales’ successful social partnership arrangements, steered by the tripartite Workforce Partnership Council and involving employers, unions and government. CollegesWales acts as secretary for the employer side on education matters. We have strong partnership arrangements with our own Joint Trades Unions. These arrangements, including the arrangements for ‘check off’, currently work well. We see no need for new primary legislation to amend the legal basis of trade union activity in Wales. Many of the measures in the Trades Unions Bill affecting the education sector are not reflective of this constructive approach. Alongside other public service employers in Wales, we do not see the need for them. There is a risk that if the Bill becomes law we may see a deterioration in employment relations, not an improvement. We would therefore ask that the provisions of the Bill, as they currently stand, are amended so that they do not apply to Wales. Mark Dacey Lead Trade Union Negotiator October 2015

Written evidence submitted by North Lanarkshire Council (TUB 35) 1. North Lanarkshire is the fourth largest Scottish local authority, located in west central Scotland, between Edinburgh and Glasgow. It covers an area of 47,358km² and serves a population of approximately 328,000 people. The Council employs around 16,000 employees. 2. North Lanarkshire Council welcomes the opportunity to make this submission to the Public Bill Committee. The Council believes that the enactment of the Trade Union Bill 2015 will undermine positive industrial relations. In particular, the Council is strongly opposed to the introduction of publication requirements and reserve powers in relation to facility time and the proposal to remove the Deduction of Contributions at Source or ‘check off’ process through which subscriptions are paid by union members. 3. The Council has a long established working relationship with its trade union partners. In addition to promoting positive industrial relations, this partnership is pivotal to the efficient delivery of public services. 4. The publication requirements in respect of facility time will impose an additional administrative burden on local authorities at a time of severe financial constraint. The Council believes the imposition of arbitrary ‘capping’ powers in respect of facility time as proposed by Clause 13 of the Bill to be an unjustified incursion by the UK government on long established and beneficial working practices. The value of facility time is well documented,132 enabling meaningful consultation to take place between employees and their employers and promoting good workplace relations. This is of particular benefit to the Council in the context of current public sector reforms. 5. The Council is concerned that there has been no consultation with public sector employers regarding the termination of check off. The Council recognises the benefit to employees in having union subscriptions,

131 http://www.teachers.org.uk/files/response-consultation-on-hiring-agency-staff--sept-15-_ts.doc 132 See, for example, NatCen, The Value of Trade Union Facility Time, Insight, Challenges and Solutions, June 20102 at http://www. natcen.ac.uk/media/28246/value-trade-union-facilitytimefullreport.pdf 94 Trade Union Bill: Written evidence

in addition to other payments, such as childcare vouchers and charitable donations, deducted at source from salary payments. This arrangement is well established and convenient to employees. The Council believes that the removal of check off will undermine positive industrial relations. Furthermore, given that there are no proposals to end other payroll deductions, there is no clear rationale for ending the system of check off. 6. The Council believes that Clauses 12 and 13 of the Bill should be removed and that the proposal to remove check off should be dropped. October 2015

Written evidence submitted by Ann McCoy, Chair, North East Regional Employers’ Organisation (NEREO) (TUB 36)

Trade Union Bill NEREO advises, supports and represents the 12 Councils in the North East region operating in the broad fields of human resource management and management practice. Policy decisions are taken by an Executive Committee, of which I am Chair, comprising 15 elected members representing the 12 Councils. At a meeting of the Executive Committee held yesterday members received a report on the Trade Union Bill and its implications for employee relations in local government. As a result, I was asked to write to all MP’s in the region as follows: 1. All councils in the North East region fully support the principles of collective bargaining both at national and local level. 2. All Councils in the region employ the vast majority of their staff under the “National Joint Council for Local Government Services” (NJC) terms and conditions of employment. Part 1, “Principles”, paragraph 3 of the NJC states: “The NJC has a strong commitment to joint negotiation and consultation at all levels, and to this end encourages employees to join and remain in recognised unions. Co-operation between employers, employees and unions will help ensure the successful delivery of services. Local authorities are therefore encouraged to provide facilities to allow trade unions to organise effectively for individuals and collective representation.” 3. Local government has suffered more through austerity measures than any other part of the public sector over the last few years and NEREO members agree that the only way in which Councils in this region have been able to manage the very significant reductions in budgets and, as a consequence, employee numbers, has been through the active involvement and support of the Trade Unions. 4. The Executive Committee believes the proposals within the Bill will seriously damage the ability of the Trade Unions to represent the interests of their members and work with councils for the benefit of the communities they serve. The Bill proposals most certainly run counter to the spirit of the wording within the NJC. The report also included a letter to me from Beth Farhat, Regional Secretary of the TUC in which NEREO is asked to sign a statement from public sector employers. That was unanimously agreed and is as follows:

Statement “The Trade Union Bill will give central government wide ranging powers to impose changes on how we choose to work with unions to manage relations in the workplace. Plans include: —— preventing public sector employers from running “check off” systems to deduct union subscriptions from the payroll; —— requiring all public sector employers to publish detailed annual reports recording how many union officials are employed by the authority, what proportion of the pay bill is allocated in total to union facilities and how much the public authority spends on specific union activities; —— controlling the amount of money each or any public authority can invest in collective bargaining and social partnership forums, on union health and safety reps and even union learning reps who work with employers to raise skills and training opportunities; —— revising contracts of employment and collective agreements which have been agreed by the public authority with their staff and unions; —— intervening to cap the amount of money each authority can spend on facility time. We are surprised and disappointed that we are to lose the autonomy to take our own decisions around these important areas for employee engagement, particularly given the government’s rhetorical commitments to the localism agenda. We call on the government to think again on these plans.” Trade Union Bill: Written evidence 95

The Executive Committee respectfully requests, therefore, your support for this statement and opposition to the progress of the Bill. Finally, I will be taking other actions on this matter following yesterday’s meeting including writing to the Chairman of the Local Government Association, the Leader of its Labour Group and MEP’s on the basis that the Bill challenges the principles of “social dialogue” which are enshrined within the EC’s treaties. October 2015

Further written evidence submitted by Professor Keith D Ewing, Professor of Public Law, King’s College London (TUB 37) 1. I refer to the recently tabled government amendment on the check off. This gives effect to the announcement on 6 August 2015 of the government’s intention to ‘abolish the check off across all public sector organisations’, as part of ‘curtailing the public cost of ‘facility time’ subsidies’. These latter proposals were justified in the following terms: Currently – under the check off process – many public sector workers who are union members have their subscriptions taken directly from their salary, administered by their employer. This was a practice introduced at a time when many people didn’t have bank accounts, and before direct debits or digital payments existed as a convenient and secure way for people to transfer money. The removal of check off will modernise the relationship between employees and their trade unions, while removing the burden of administration from the employer. The move also gives the employee greater control over their subscription, allowing them to set up their own direct debit with their chosen trade union, and giving them greater consumer protection under the Direct Debit Guarantee.133 2. The reasons given by the government for the ban on collective bargaining in relation to the check-off are wholly unconvincing. Whether or not people have bank accounts is as irrelevant to the way they pay their trade union subscription as it is the way they pay their income tax. The check-off system provides an easy and convenient way for workers to pay their subscription to their union at minimal or no cost to their employer, who will often charge the union a small administration fee for the expense incurred in dealing with the practice. The benefit to individuals was recently acknowledged by the High Court, in a case relating to the withdrawal check-off facilities in the civil service. 134 In giving judgment, Mr Justice Supperstone said that: I am not impressed by the argument that check off is only or primarily for the benefit of the union as such, rather than for its members in their capacity as employees. It seems to me that there is a real benefit to employees in the administrative convenience of not having to make their own arrangements for payments each month, or having to set up a direct debit or standing order and then change it or replace it from time to time as may be necessary. Moreover, the benefit to the union in the arrangement consists in part in the savings in time and cost in not having to undertake the administrative exercise of collecting payments individually from members. Any cost benefit to the union is necessarily a benefit to its members as such and in their capacity as employees. It also seems to me that an efficient and secure system of subscription collection for a union is in the interest of all its members. Each member benefits from the efficient and secure collection of dues from other members and check-off benefits each member in that way.135 3. Quite apart from the foregoing, the new clause invites questions about the government’s treaty obligations, questions that would be easier to answer were ministers to publish the advice they have presumably received that there is no incompatibility with international law. Check-off arrangements are typically regulated by voluntary collective agreements, freely entered into by employers and trade unions. The government is proposing in effect to prohibit collective bargaining about check-off (and incidentally to rewrite existing collective agreements relating to check-off).136 This conflicts with ILO Conventions 98, art 4, and 151, art 7, by which the British government accepted an obligation to promote collective bargaining, both generally (Convention 98), and in the public sector in particular (Convention 151). 4. It is true that neither of these latter provisions deals specifically with collective bargaining about check-off arrangements specifically. Nevertheless such arrangements clearly cannot be excluded, and their inclusion is strongly implied by ILO Convention 154, which defines collective bargaining to include negotiations between an employer and a workers’ organisation for ‘regulating relations between employers or their organisations and a workers’ organisation or workers’ organisations’. In any event, it is made abundantly clear by the

133 Cabinet Office, New Steps to Tackle Taxpayer-Funded Support to Trade Unions, 6 August 2015: https://www.gov.uk/government/ news/new-steps-to-tackle-taxpayer-funded-support-to-trade-unions. 134 For an attack in facilities arrangements in the civil service under the Coalition government (2010-2015), see A Bogg and K D Ewing, The Political Attack on Workplace Representation – A Legal Response (Institute of Employment Rights, 2013) – this raises a number of concerns about compatibility with ILO Conventions. 135 Hickey and Hughes v Secretary of State for Communities and Local Government, 3 September 2013. I rely here on a very valuable account by Andrew James, Check-Off Arrangements – The Law (Thompsons Trade Union Law Service, 17 March 2014). Mr James also highlights the existing protections for workers who do not want to pay subscriptions by check-off. See especially Trade Union and Labour Relations (Consolidation) Act 1992, ss 68, 69 (hereafter TULRCA 1992). 136 By virtue of the amendment, it will not be lawful to implement any collective agreement on check-off. 96 Trade Union Bill: Written evidence

jurisprudence of the ILO supervisory bodies that a refusal to bargain over check-off arrangements is incompatible with the government’s obligations under the foregoing treaty provisions. I refer to a long- running case before the Committee of Experts from Congo. In 2010 the Committee reported that since the check-off system was abandoned in 1991, there has been no procedure for deducting trade union dues from workers’ pay. According to the Government, in practice, all unionized workers are expected to pay their dues to the trade union office. The Committee once again notes with regret that the Government has still not specified whether the abandonment of the check-off system in 1991 had the effect of barring trade unions from negotiating procedures allowing trade union dues to be deducted from members’ pay. The Committee once again reminds the Government that the deduction of trade union dues by employers and their transfer to the unions is not a matter that should be excluded from the scope of collective bargaining and requests the Government to indicate whether the abolition of the check-off system in 1991 has led to such an exclusion.137 5. But in addition to penalizing individual employees, and in addition to clearly violating international labour standards, there is an even more important consideration that requires compelling justification for this amendment, justification we have yet to hear. For what possible benign reason in a free society should trade unions and employers effectively be banned by the State from entering into a voluntary agreement about the collection of subscriptions? And for what possible benign reason in a free society should the State have the power to rewrite voluntary collective agreements about the collection of trade union subscriptions? October 2015

Further written evidence submitted by UNISON (TUB 38)

Re: Supplementary evidence to the Trade Union Bill Committee During my oral evidence on 15th October you asked me to put one of my answers on the paying of union subscriptions via pay roll (known as Check Off or DOCAS) in writing to the Committee as useful extra factual evidence. I am happy to do so. UNISON has negotiated 9,334 voluntary ‘check off’ agreements with employers in all sectors of the economy. Of these 7,242 agreements are in the public sector. These employers have all freely entered in to these arrangements as part of constructive industrial relations and none has been asking for their removal. Indeed many HR professionals value the information it gives them for a variety of purposes. The second main point I made was in many cases we pay an administrative fee or levy to employers to cover the cost and in some cases the fee raises valuable extra revenue for the public body over and above the actual cost, which is small. For example, fees/levies are: —— Fife Council – 5% of union subscriptions collected; —— East Lancashire Hospitals NHS Trust – 5% of union subscriptions collected; —— Bradford City Council – £38,000 pa; —— Derbyshire County Council – £20,000 pa. I would repeat my offer to the Government made at the Committee that UNISON is happy to cover the costs of ‘Check Off’ so there is no cost to the tax-payer. October 2015

Written evidence submitted by Cllr Julian Bell, Leader, Ealing Council (TUB 39) Thank you for the opportunity to provide written evidence to the public bill committee on the Trade Union Bill, setting out the position of Ealing Council in regards to this proposed legislation. 1. The London Borough of Ealing is a major employer of nearly 3,000 individuals (excluding schools workforce), with a high rate of trade union membership within the workforce, estimated at around 50%. The council has developed a good relationship with the major trade unions representing the workforce. While there are inevitably occasions on which there have been disagreements between the council as employer and the unions, Ealing has generally been able to address these amicably and constructively with the unions. Industrial action has been relatively rare at Ealing Council, with low proportions of union membership engaging in strikes during national disputes. Ealing Council does not feel that, from its perspective as an employer, there is a pressing need for legislative change to the relationship with trade unions.

137 ILO Committee of Experts, Observation Adopted 2010 (Congo) (ILO, 2011). Emphasis in original. More recently: ‘The Committee hopes that the current reform of the Labour Code will provide the opportunity to ensure that the question of the deduction of trade union dues by employers and their transfer to trade unions can be included in the scope of collective bargaining: ILO Committee of Experts, Direct Request Adopted 2013 (Congo) (ILO, 2014). Trade Union Bill: Written evidence 97

2. Ealing Council considers that the reasonable provision of facility time for trade union officers is an important part of ensuring the effective operation of the workplace in a collective bargaining environment. While ensuring that facility time remains proportionate and justifiable is a sensible aim, within local government at least this is largely achieved under the current system. The requirement to record and publish details of facility time would be an administrative burden on stretched local authority budgets. Further, any centrally imposed cap on facility time, as the bill enables, would run the risk of being too inflexible to cope effectively with periods when higher levels of facility time are required, such as when a part of the council is undergoing significant change or re-organisation. 3. Ealing Council sees no need or obvious justification for curtailing the deduction of union subscription fees at source. This is straightforward for employees, contributes to a good relationship between the employer and the union and places no significant administrative burden on the council. In common with many employers, the council operates a range of pay-roll deductions for employees, including season ticket and bike loans, which it intends to continue to operate and the ending of check-off would therefore realise few if any savings. Around 48% of Ealing’s employees choose to use the check-off system, demonstrating the value and utility that the council’s staff attach to it. 4. Ealing Council considers it unlikely that the changes to balloting thresholds and other measures relating to industrial action will have any significant impact on the frequency of strikes or their impact on users of Ealing Council’s services. As stated previously, constructive relations between Ealing Council and the trade unions contribute effectively to reducing the frequency of industrial action, so we perceive no benefit to the council or the residents that it serves from these provisions in the bill. October 2015

Written evidence submitted by the Directors of Workforce and Organisational Development, NHS Wales (TUB 40)138 On behalf of the Directors of Workforce and Organisational Development within NHS Wales, I would like to make a number of points in response to the Trades Union Bill. In general, partnership working between employer organisations and trade unions works well in NHS Wales and we have established effective working relationships which support the development of effective and mutually beneficial solutions to a number of significant challenges which the service has addressed and continues to face. It is our view that the NHS’s workforce challenges are best addressed by an efficient, engaged and productive workforce, where there is regular consultation and ongoing dialogue with our staff and a key element of this approach is through social partnership with trade unions representing NHS staff. We feel that some of the proposals outlined in the Trade Union Bill could have a detrimental effect on this relationship and potentially lead to unnecessarily challenging industrial relations in future. In relation to some of the specific proposals, strike action in the NHS in Wales over the last decade has been minimal, despite significant organisational change and the introduction of significant changes to terms and conditions, so we do not believe that any additional measures to protect the public from strikes are necessarily required. When there has been industrial action, the impact has been managed through partnership discussions so as to ensure that essential services are maintained and TU members are able to exercise their right to withdraw their labour. Consequently, we do not believe that intimidation of non-striking workers is an issue within the NHS in Wales although, we agree that this behaviour is completely unacceptable and should be handled within the existing legal framework. We have our own agreed key principles framework for time off and facilities for trade union representatives in place and we believe that this meets the needs of the service and supports our approach to social partnership and so we do not feel that any further requirements to negotiate on an individual basis would be beneficial. With regard to the proposal to remove the public sector check off system, whilst recognising that the government will want to explore elements of cost avoidance, the service is often provided by payroll departments at a cost to the Trade Union. In addition, where the facility is offered it enables employers to understand the numbers of members in any one union and gain an understanding of the relative TU membership across the organisation.

138 For and on behalf of the Directors of Workforce & OD, NHS Wales: Bev Edgar, Director of Workforce & OD, Abertawe Bro Morgannwg UHB Anne Phillimore, Director of Workforce & OD, Aneurin Bevan UHB Martin Jones, Director of Workforce & OD, Betsi Cadwaladr UHB Raj Chana, Acting Director of HR, Cardiff and Vale UHB Jo Davies, Director of Workforce & OD, Cwm Taf UHB Lisa Gostling, Director of Workforce & OD, Hywel Dda UHB Julie Rowles, Director of Workforce & OD, Powys tHB Ruth Davies, Director of Workforce & OD, Public Health Wales Sarah Morley, Director of Workforce & OD, Velindre NHS Trust Claire Vaughan, Director of Workforce & OD, Welsh Ambulance Service NHS Trust Hazel Robinson, Director of Workforce & OD, NHS Wales Shared Services Partnership 98 Trade Union Bill: Written evidence

Finally, we do not support the proposal to repeal the ban on using agency workers to cover for striking employees. In our experience, we have found that sufficient employees have been exempted from strike action to maintain essential services. It would in practice be challenging to recruit the appropriate trained agency workers to provide cover during strike action and could potentially lead to less co-operation from trade union representatives and/or their members in providing exemptions to cover essential services. It may also have the unintended consequence of the measure being used to challenge an employer to cover a service with agency workers thereby putting pressure on an employer to maintain services by an alternative means. Such an approach might also worsen the industrial relations environment between an employer and the trade union(s). In conclusion, we are keen to encourage all aspects of social partnership within the NHS in Wales and feel that the proposals could cut across this approach and lead to a more adversarial environment through employers having to manage within new legislative requirements. We request that the government gives due consideration to the implications of the Bill, in general, and in particular, the views outlined in this letter. October 2015

Written evidence submitted by The Law Society of Scotland (TUB 41)

Introduction 1. The Law Society of Scotland aims to lead and support a successful and respected Scottish legal profession. Not only do we act in the interests of our solicitor members, but we also have a clear responsibility to work in the public interest. That is why we actively engage and seek to assist in the legislative and public policy decision making processes. 2. To help us do this, we use our various Society committees which are made up of solicitors and non- solicitors to ensure we benefit from knowledge and expertise from both within and out with the solicitor profession. 3. The Law Society of Scotland’s Employment Law Sub-committee welcomes the opportunity to respond to the UK Parliament’s Public Bill Committee call for written evidence on the Trade Union Bill wish to put forwards the following comments in response.

General Comments 4. We note that the Scottish Government has recently made an official request that Scotland be excluded from the provisions of the Bill.139 We further note that the Bill provides for the detail to be set out in regulations. We would suggest that the Minister be required to consult with the devolved administrations on any proposed regulations, to ensure that full consideration is given to the impact and effect that the Bill’s provisions will have in those separate jurisdictions. 5. We previously responded to the UK Government consultations which relate to the Bill – Hiring agency staff during strike action: reforming regulation140 and the Consultation on tackling intimidation of non-striking workers.141 Many of the comments which we put forward to those consultations are also relevant to the call for evidence. 6. We limit our observations to questions which require to be addressed in order that the measures in the Bill comply with international legal obligations, including, but not limited to, the European Convention on Human Rights (ECHR), which we discuss further below.

Specific Comments Relevant Obligations 7. We note that the relative obligations that arise to be considered are: 8. The European Convention on Human Rights (ECHR); 9. The European Social Charter (ESC); 10. International Labour Organisation Standards (ILO); 11. The International Covenant on Economic, Cultural and Social Rights (ICESCR).

Human Rights Compatibility Statement 12. We note that the UK Government has issued a statement of compatibility. However, we believe that a number of questions arise about the Bill’s compatibility with ECHR.

139 http://news.scotland.gov.uk/News/Trade-Union-Bill-exemption-call-1e5e.aspx 140 http://www.lawscot.org.uk/media/590998/emp-hiring-agency-staff-during-strike-action-reforming-regulation.pdf 141 http://www.lawscot.org.uk/media/583300/emp-consultation-on-tackling-intimidation-of-non-striking-workers-law-society-of- scotland.pdf Trade Union Bill: Written evidence 99

13. For example, the statement analyses individual sections of the Bill in relation to ECHR obligations, but does not provide any analysis or statement on the extent to which all the measures, taken together, would satisfy the test of proportionality, or would breach Article 11 on ECHR.

Compatibility with Wider Human Rights Obligations 14. The Memorandum on Human Rights Compatibility142 published July 2015 did not address compatibility with ESC, ILO and ICESCR obligations. The ESC, ILO and ICESCR obligations are more detailed and specific than ECHR obligations, although not necessarily more onerous. We would suggest that further consideration be given to whether the Bill’s provisions comply with these ratified treaties. 15. To what extent should the Bill accord with internationally-recognised definitions and standards? For example, the ILO recognises the requirement for restrictions on the right to strike in “essential” public sector roles, rather than “important” roles. If so, we ask if the UK Government intends to publish evidence of how compliance with these other human rights instruments is achieved?

Apparent Absence of Consultation 16. The Memorandum on Human Rights Compatibility identifies some, but not all, of the relevant evidential questions including necessity, proportionality and the need to protect the rights and freedoms of others. However, we understand that some issues within the Bill have not been subject to public consultation. This raises questions about those measures in the Bill for which no consultation has been undertaken, for example, the proposed prohibition of payroll deduction of trade union subscriptions (DOCAS).

Memorandum on Human Rights Compatibility 17. We would suggest that the Memorandum on Human Rights Compatibility appears to be incomplete. For example, it does not address the human rights implications of the proposed ban on payroll deduction of trade union subscriptions in the public sector. 18. We wonder whether the UK Government intends to extend or expand the Memorandum on Human Rights Compatibility to include an analysis of the human rights compatibility of those measures excluded from the document published in July 2015? 19. In relation, in particular, to the proposed 40% threshold for industrial action in “important public services”, the UK Government makes reference to a potential breach of Article 11, but relies upon the case of E.R.N.E v Spain (45892/09) European Court of Human Rights 21.4.2015 to allow distinctions to be drawn between one public service and others. However, in our opinion, the Bill seeks to consult on an extremely broad list of public services, including all NHS staff, fire staff and education workers, and most transport workers and immigration workers. There does not appear to be any analysis on whether the provision would remain proportionate if all the roles which are proposed within the Bill were to have the threshold imposed, as it is clear the facts in ER.N.E v Spain refer only to a comparison of one role against others. 20. In our view, the statement also does not make any reference to the actual number of roles which would be affected by the new provisions, or provide this as a proportion of the UK workforce generally, which would be required in any analysis regarding proportionality. October 2015

Written evidence submitted by Tom Flanagan Consulting (TUB 42)

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”,

142 https://www.gov.uk/government/publications/trade-union-bill-european-convention-on-human-rights-echr 100 Trade Union Bill: Written evidence

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. Trade Union Bill: Written evidence 101

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: 102 Trade Union Bill: Written evidence

“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 Trade Union Bill: Written evidence 103

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 lacuna, therefore, that, when formally 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 union 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 its 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 will 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, by 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. As 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. There 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, among 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 104 Trade Union Bill: Written evidence

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 Business Regulations 2003. Actually, this regulation has a very narrow 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: —— the duties normally performed by a worker who is actually taking part in a strike or other industrial action; or —— the duties normally 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 committed 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 Agency 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 how limited it actually is.

General Concerns Expressed by Unions Elections aren’t judged with these thresholds: this argument is not 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 parties, 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 be 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 support 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 Trade Union Bill: Written evidence 105

in those circumstances is that the 70% did not vote in favour, which is sufficient to make the point 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 legislation is an outmoded reaction: in my view, this 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

Written evidence submitted by Sara Ogilvie, Policy Officer, Liberty (TUB 43) Thank you for inviting me to participate in your Committee’s oral evidence session on the Trade Union Bill on 13 October 2015. During that session you kindly invited the panel to send further written comments. This is a short note to reiterate Liberty’s views on a number of the issues we discussed. A number of Committee members raised the issue of disruption caused by strikes. Liberty agrees that in some – although certainly not in all – cases strike action will cause inconvenience to the general public. However, we do not agree that this is sufficient justification for the measures in the Bill, which we consider would restrict the 106 Trade Union Bill: Written evidence

right to freedom of association so significantly as to render the right illusory. There are many things in society that cause inconvenience. In human rights terms, the right to freedom of expression often causes the state embarrassment. The right to a fair trial certainly makes it slower and more expensive for the state to prosecute, convict and imprison those who break the law. However, we do not prohibit the exercise of these rights on that basis. Committee members raised in particular the example of difficulties caused by strike action in the transport sector. However commuters in London frequently face similar difficulties getting across the city due to train station closures as a result of Crossrail or due to the development of cycle lanes on Embankment. We accept these inconveniences as a short-lived and ultimately worthwhile irritation rather than action meriting a prohibition. It is difficult to understand why the right to take collective action differs. Committee members were also keen to understand Liberty’s objection to the requirements proposed in clause 9 of the Bill. We discussed extensively the fear created by blacklisting, the discriminatory nature of imposing regulation over and above the law that usually applies to peaceful protests, and the undemocratic nature of making individuals jump through bureaucratic hurdles in order to exercise their rights. I would like to emphasise in particular the issue mentioned briefly in our session as to the consequences of failure to meet with other requirements proposed in clause 9. Under the Bill, it would be the case that the failure of one individual to wear an armband could be to render an entire strike unlawful. This would mean that every individual who has participated in that particular industrial action will no longer be protected from dismissal by their employer. Trade Unions themselves would also be liable to potentially significant financial penalties. These consequences are wholly disproportionate and could have very grave impact on individuals who are seeking simply to enforce their workplace right, or the rights of their colleagues. It is also important to note that proposals to limit the right to strike will also have much wider repercussions than reducing the incidence of strike action, inconvenient or otherwise. The proposals, when combined with other related reforms, will mean that bad or reluctant employers will have very little, if any, reasons to engage in constructive industrial relations with employees or their representatives. They will know that strike action is costly and risky. They will know that employees will have to pay a hefty fee to access and Employment Tribunal and that an employee will not be able to routinely access legal advice on how to resolve a workplace dispute under the reformed legal aid system. They will know that employees risk job loss should a designated colleague fail to wear an armband on a picket line. As a result, employees will have no means to encourage employers to approach industrial relations in good faith, if at all. Earlier this week it was reported that 14 individuals employed to clean the Foreign Office were threatened by their third party employer with disciplinary measures for raising the issue of their low wages with the Secretary of State. When all routes of engaging with employers are shut down, how are workers expected to be able to enforce basic workplace rights? Finally, I would like to draw the Committee’s attention to the Government’s three consultations associated with the Trade Union Bill, which we did not have time to cover in our evidence session. These consultations were conducted during the course of the summer over only eight weeks, and closed on 9 September 2015. They included a number of extremely serious proposals, such as the creation of a new criminal offence of intimidation. This proposal was made despite the clear statement from the police that the current legal framework is “sufficient and effective”. With Committee Stage scrutiny of the Bill scheduled to close on 27 October 2015, it is most concerning that the Government has yet to publish its response to these consultations nor made clear whether it intends to proceed with any of the proposals contained within them. For the Government to introduce via late amendments any significant changes to the Bill would not only show contempt for parliamentary process and the proper role of the legislature in scrutinising legislation, but seems certain to lead to ill-considered, bad law. We would urge Committee members to resist any amendments of this nature. Once again, thank you for the time you have given to Liberty as you scrutinise the Bill. If you have any further questions on this Bill or any other aspect of your parliamentary work, please do not hesitate to be in touch. October 2015

Written evidence submitted by Dave Godson & Alan Duffell, Joint Chairs of East Midlands Social Partnership Forum (TUB 44) As a group of HR directors and regional trade union reps we are responsible for a public sector workforce of over 131,000 NHS staff across the East Midlands. We welcome the opportunity to offer a view on the Bill before its progress through the various stages of Parliamentary readings and hope the following comments provide helpful observation on how the spirit of the Bill’s focus may be achieved through refined legislation. Just as across the civil service, the NHS has taken a partnership approach to employee relations, working with trade unions in a manner that has so far minimised the risk of industrial action through strong partnership arrangements. This has paid dividends through improved patient care, a better employee voice and staff engagement, as well as agreements on pay awards that have protected lower paid employees amongst Trade Union Bill: Written evidence 107

workforces that have little real terms increase in their pay or benefits. Indeed such engagement has been recognised by Health Ministers as fundamental to the delivery of the NHS’s Five Year Forward View. We are concerned that the new voting rules outlined in the draft Bill may make us less able to locally agree solutions to manage any potential impact and to confine the negative implications of any future industrial action for the public or patients. This is because Trade unions that achieved the new voting thresholds may more likely contend that urgent cover is now an employer responsibility. Additionally, we are not convinced that the benefits of levying a charge on trade unions and employer organisations to cover the cost of certification officers or proposed changes to stop staff paying their Union monies through deductions will be of significant added value. On balance, we are concerned those measures are more likely to be received negatively by staff and Unions and thus unduly effect their motivation and commitment with very limited cost benefit in return. Although the government will want to explore all elements of cost avoidance (as we do), we want to highlight the cost savings we achieve through effective consultation and communication between NHS employers and trade unions. We understand NHS leaders across England have written to you raising similar points and be would be happy to discuss our assessment with your responsible officials. October 2015

Written evidence submitted by Cllr Dee Martin, Labour Member for Northolt West End (TUB 45) I am writing to lodge my objections to many of the proposed changes to trade union rights which are contained within the Trade Union Bill. I believe that our trade unions play a fundamental role in British democracy and are an essential element in ensuring that our society continues to be a fair, open and equitable one. But they can only perform this role if they are able to operate within a sensible and balanced framework. In order to ensure that trade unions can continue to operate effectively I believe that we need to protect the following trade union rights and practices: 1. The right of trade union representatives to time off for trade union activites, so that representatives can participate in negotiations with employers and support individual members. 2. The ability to deduct trade union subscriptions through payroll. 3. The right to use a wide variety of communication channels in order to communicate with often geographically separated membership groups. 4. The right to undertake a range of actions in support of their members rights, and in the interests of fair treatment for all. I would therefore urge you to retain these rights. The trade union movement has a proud record of defending the rights of women and of minority groups within the workplace: I do not believe that I would have the rights that I enjoy today without them. I, like many millions of people in the UK, have chosen to be a member of a trade union, and I actively support them acting on my behalf. I hope that you will listen to the voices of so many of the people of the UK and refrain from damaging the ability of the trade unions to continue to help to defend our democracy, by making these necessary amendments to the Bill.

Written evidence submitted by Councillor Barrie Grunewald Leader of the Council and Rainhill Ward Councillor (TUB 46)

Submission to the Public Bill Scrutiny Committee in respect of the Trade Union Bill 1. My name is Councillor Barrie Grunewald and I am submitting this evidence to the above Committee in my capacity as Leader of St Helens Council, Merseyside. 2. I am obviously in a political role at the Council but I wish this submission to be on behalf of St Helens Council and I have encompassed the views of professional officers and organisations such as the Chartered Institute of Personnel and Development to form a balanced and objective submission. 3. I have already responded to the three elements permitted during the consultation period, however, I have taken the liberty of submitting this organisation’s views on a fourth element namely the proposals regarding deductions of trade union subscriptions (check off). I will advance my submission in sequential order. 108 Trade Union Bill: Written evidence

Consultation on Ballot Thresholds in Important Public Services 4. This issue is largely hypothetical and implies that in certain public sector arenas there has been widespread and significant disruption over the years. I accept that there have been certain disputes with public sector employees, but these have generally centred around fundamental issues such as pension reform etc. On reflection of this specific issue, all three major parties arrived at a consensus in terms of pension reform and saw the merit in what the trade unions were protesting about. 5. Nothwithstanding the above, the key impacts alluded to in the Bill are extreme and it is difficult to imagine the scenarios outlined in the proposals as reaching reality. There is certainly no evidence in recent years of the key impacts alluded to in the consultation documentation manifesting themselves. 6. The proposals are an attack on democracy, a disproportionate reaction and will only seek to erode workers’ rights and create a division between public sector employees and government. 7. It is very difficult to define what an important public service is. However, over the years the public sector and its workforce have played a critical role in shaping society and addressing what society itself sees as important. In turn, public sector workers are committed to achieving the highest standards and do not deserve to be treated differently in terms of their workers’ rights. 8. St Helens Council does not believe that any of the occupations outlined in the consultation document should be subject to any further reform, in particular the proposed draconian balloting percentages. More specifically a 50% threshold in favour of industrial action and a 40% threshold of those entitled to vote is disproportionate and will be perceived by employees as eroding their employment rights. 9. Moreover, St Helens Council views all public sector organisations similarly and equally important. There is no requirement to alter the democratic process in terms of trade union ballots and required percentages of participating and acceptance. 10. The proposals would add to the bureaucracy and red tape involved in a trade union organising a ballot bearing in mind the 50% and 40% voting threshold areas proposed by the Government. This effectively removes the right to strike from certain public sector employees and is potentially a contravention of international law.

Consultation on tackling intimidation of non-striking workers response form 11. At St Helens Council we have encountered industrial action both nationally and locally and we have worked on a reasonable basis with both the trade unions and the police. We do not believe that any further strengthening of legislation is necessary. As far as St Helens Council is concerned we have no evidence of intimidatory behaviour. 12. It is the opinion of St Helens Council that there is already sufficient criminal and civil law to regulate the behaviour of individuals on picket lines during industrial action. The current legislation does not need any strengthening and there is no requirement for a specific criminal offence for the examples quoted in consultation documentation i.e. intimidation on a picket line. 13. The experience of St Helens Council when encountering industrial relations disputes and picketing has been peaceful, limited in accordance with the legislation and all pickets identified by their trade unions. There is no requirement for further enforcement of the numbers and activities of pickets. 14. From experience it is pretty obvious what the Unions’ plans are when it comes to picketing and industrial action. The existing codes of practice and legislation already require picketing to be confined to an employees’ place of work and limits the number of pickets. There is no requirement to extend this further. 15. There are already sufficient measures to hold unions accountable via the Legislation and Certification Officer. To force trade unions to publish details in annual reports of arrests or injunctions etc. is petty and serves no worthwhile purpose. 16. Trade Unions are already accountable for the actions of their members but in a democratic society how can an organisation possibly be held to account for the individual actions of a few individuals. We cannot perceive in a democratic society, that any other organisation as a Football Club, Rugby Club, Cricket Club, Golf Club, or Social Club would have to face such stringent accountabilities of its members as this proposal is for trade unions. 17. In summary this element of the Bill is wholly disproportionate and legislation has been in place for more than thirty years that holds trade unions to account. There is no requirement for further legislation in this matter.

Hiring agency staff during strike action – reforming regulation 18. St Helens Council engages agency workers in a variety of occupations and professions and is proud of the fact that all agency workers engaged by St Helens Council are employed on no less favourable conditions than its substantive workforce. Indeed, agency employers within St Helens are regarded as reasonable employers and partners with the Council in achieving our objectives. 19. The experience of St Helens Council is that we find agency workers are generally willing and happy to take employment at the Council due to there being future prospects of employment. It is a completely different Trade Union Bill: Written evidence 109

scenario to recruit agency employees to cover the jobs of those people taking industrial action and from our experience it cannot be assumed that these agency workers would willingly take these jobs and undertake these activities. 20. This proposal has the potential to put unfair and undue pressure on a section of the national workforce i.e. work seekers. Agency workers sometime are in the unfortunate position of accepting agency work due to unemployment or as an interim position prior to taking permanent employment. It is unfair to place agency worker in the invidious position of having to replace a workforce who is taking legitimate industrial action. 21. In terms of agency employers, the proposal will potentially affect the ability of them to recruit suitable candidates given the potential for the aforementioned undue pressure. Agency employers rely on goodwill and of being able to deploy a flexible workforce into a reasonable employment relationship. The removal of regulation 7 creates the potential for conflict between employees and the hirers. 22. The proposal again has the potential to create divisions within the workforce and make solutions to industrial relations problems more difficult. Employees taking lawful legitimate industrial action do not expect to be replaced with unofficial labour. It has the potential to cause conflict within a workforce and in a community as a whole. 23. Despite assertions to the contrary industrial action is not a feature of everyday life in Britain. The potential impact implies “high handed” state control on people’s human rights. 24. There are many flawed hypotheses in this particular proposal. Hiring staff directly may be difficult but the hypothesis that hiring agency staff will be any easier is flawed. As stated, agency employees are generally willing to work in organisations due to the prospects of more secure direct employment and it is not generally the intention of agency employees to cover the work of employees taking industrial action. 25. Finally from a pragmatic and experienced perspective it cannot be assumed that agency workers are prepared and available at short notice to provide cover. Indeed national disputes will invariably reduce the agency pool. 26. I would go as far to state that this proposal is based on a bizarre and theoretical model and the assumptions within it bear no relation to the practical experiences of organisations such as St Helens Council.

Deduction of Trade Union Subscriptions by Employers 27. As stated although not within the consultation documentation I feel the need to comment in that this practice which has existed for generations has clearly been misunderstood. There appears to be a misconception that somehow organisations such as St Helens Council are providing a free service to the Trade Unions at a cost to the local taxpayer. 28. At St Helens and I assume at most organisations the converse is true in that this practice generates income as the Council receives a percentage of all monies collected. 29. Furthermore, it is yet again a punitive and petty measure that appears to be directed solely at Trade Unions. This is demonstrated by the fact that St Helens Council makes deductions from the salaries of its employees for a plethora of Charities and approved organisations. 30. St Helens Council is fundamentally opposed to this proposal within the Bill. October 2015

Written evidence submitted by Cllr Tony Newman, Leader of Croydon Council (TUB 47) I am writing to express my deep concerns about the proposals contained in the Trade Union Bill, currently being considered at Committee Stage in the House of Commons. This Council recognises the positive contribution that trade unions and trade union members make in our workplace. We value their commitment to the delivery of good quality public services in Croydon, especially in these challenging economic times for local authorities. In its current form, the Trade Union Bill is nothing short of an attack on basic freedoms that has no place in modern Britain. It is an attack on this Council’s right to manage its own affairs and would undermine our relationship with our workforce as a whole. This Council is happy with the check-off arrangements we currently have in place for deducting trade union membership subscriptions through our payroll. Check-off is cheap, easy to administer, and an important part of the support that we provide to staff. It should not be interfered with by central Government. We also value the role that facility time plays in creating good quality local services that are responsive to people’s needs. As a Council, we negotiate and agree facility time in partnership with our trade unions to suit our specific requirements, and it would be totally inappropriate for this to be controlled by Whitehall. 110 Trade Union Bill: Written evidence

Through this Bill, the Government is attacking working people. This Administration resolves to support the campaign against this anti-democratic set of proposals and will, as far as possible, seek to continue its own locally agreed industrial relations strategy in the face of this dangerous Bill.

Further written evidence submitted by GMB (TUB 48) GMB would like to submit this written evidence as a follow up to both Paul Kenny’s appearance before the Bill committee and representations made by SITA UK and their Chief Executive.

Purpose of this evidence We feel it necessary to put on record the position of GMB in this dispute as the committee heard a very one sided account from Mr Palmer – Jones during his committee appearance. We will cover here some of the particular details in relation to the dispute and the potential impact of the Trade Union Bill alongside providing a background to the dispute for Members can understand the context in which this situation has come into being.

Background information The campaign on Teesside around SITA SembCorp UK (SSUK) involves the exploitation of migrant labour and the undercutting of nationally agreed pay scales for construction work. There are around 60 subcontractors at work on the new Energy from Waste facility, overseen by managing contractors Glugston /CNIM. SSUK have continually refused to sign up to the National Agreement for Engineering Construction Industry (NAECI) which sets ‘comprehensive terms and conditions of employment for hourly-paid engineering construction workers on major engineering construction projects, repair and maintenance sites and events/ outages throughout the UK’143 – it is the applicable rate for workers on this new build site. A Category 1 craft worker should be paid €22.50 per hour (£16.10 p/h). Despite the refusal to sign up to the national agreement, SSUK’s agents Andrew Stokes and Douglas Annan have consistently maintained that workers on the Wilton site are paid at or above the applicable NAECI agreed rates of pay. However, after speaking to local people and migrant workers, it became apparent that workers were not being paid at the appropriate rate. SSUK’s pay audit may show differently, but that is because they are using different national agreements – ones which mean a lower rate of pay and are completely inappropriate for the job descriptions on the site – to make their figures work. A site visit in August 2015 by concerned unions, on which we were accompanied by independent translators, proved that migrant workers were being underpaid, receiving on average €10 per hour which equates to £7.29. Even the lowest paid nationally agreement would see a rate of £11.33 per hour. When the local community raised the issue and started to campaign, what we can only consider a ‘token’ number of local workers were brought in and paid on the £16.10 NAECI pay rate. These workers were subsequently paid off after a short employment term. The trade unions involved have offered to pay for an independent forensic pay audit – with the appropriate national agreements in mind – to clear up the issue and show what the extent of the problem is because SSUK’s own audit did not take the appropriate pay scales into account. The background to this is important because it is why there are tensions in the area and why local people are protesting about the behaviour of SSUK regarding their economical use of the truth with regards to pay rates to the migrant workers on the Wilton 11 project. The protests and regulation of them were covered by Mr Palmer- Jones during the evidence session on October 15th.

Protesting at Wilton 11 The protests that are routinely held at Wilton are exactly that “Protests”, they are not picket lines and are not subject to the measures in this Bill. Not a single arrest has been made around the ‘protests’ in regards to intimidation, aggravated trespass or indeed any other activity. Relations between campaigners from the Teesside Construction Committee are convivial; there is mutual respect between police and protesters. SITA SembCorp agent Patrick Pogue did raise a complaint with the police but with no substantial evidence to back it up, no arrests were made as a result. The protests have been lawful and peaceful.

143 The National Agreement for the Engineering Construction Industry (NAECI), http://www.njceci.org.uk/national-agreement/ Trade Union Bill: Written evidence 111

What constitutes a picket line During his evidence sessions SSUK’s Chief Executive continually confused the term ‘picket line’ with ‘protest’ and seemed to suggest that the measures within this Bill should be expanded to other forms of protest. In response to Q 282 referring to earlier statements about intimidation on a picket line (which was not a picket line as there is no industrial action involved): David Palmer-Jones: I was not actually there yesterday, but we had reports back from my staff. Again, there is a movement from the Wilton construction site to our own sites and threats of other, secondary protesting. That was why I was very keen to come today, to explain the grey area that could expand. Q 283 Victoria Prentis: It would be very helpful to hear more about that. David Palmer-Jones: This is something that is very much condoned by the unions. When I meet with Merseyside and those unions, I am meeting the senior national levels of the union, which in some way tacitly approve of the tactics being deployed up in Teesside at the moment. We have a situation where council employees who are delivering household waste vehicles to the site feel quite intimidated to go across a picket line and a protest that is very much dressed in the union colours and waving union flags. They do not want to cross what is not an industrial action. This is very important to understand: there is no industrial action on any of our sites, yet I am still facing the difficulty of a sponsored, wider protest that is of a more national scale. GMB would like the following points to be recorded: —— Protests are not picket lines. The protesters may be trade union members but they are there on behalf of the autonomous Teesside Construction Committee which is a locally organised campaign to highlight something the local community feel very strongly about. It is not a part of any union and is not partaking in industrial action. —— There is no intimidation occurring. If intimidation and abuse were happening the police would rightly be involved. We refer to our earlier point that no arrests have been made. —— Mr Palmer-Jones seems to infer that the rules for pickets should apply to all protests or at the very least even more regulation should apply to protests. We find that assertion quite remarkable and would urge the committee to stand up for the very basic rights to the freedom of speech and freedom of association. October 2015

Written evidence submitted by Councillor Alan Rhodes, Nottinghamshire County Council (TUB 49) 1. I write this letter in reference to the proposed Trade Union Bill which I feel will highly circumscribe a worker’s freedom to take industrial action. The right to withdraw labour as a last resort in industrial disputes is essential for a free society as is recognised in the European Convention on Human Rights. The Bill proposes a number of changes which I fundamentally disagree with, but as the Labour Leader of Nottinghamshire County Council I would like to concentrate on two areas, in particular they include: Facility Time: Time off for union representation to support members Check-off: Payroll deductions for union subscriptions 2. As a Council we operate on the basis of an ongoing, open and transparent relationship with the trade unions. They are regarded as a true and honest voice of their members, members that make up a large part of our workforce and are from across the many different departments within our Council. 3. It is a time of financial challenge for Local Government and we are, therefore, undertaking a change management programme across the whole of the Council – ‘Redefining the Council’ – which has meant that services are delivered differently, using a variety of models. This has included developing a trust for our Library Service, a joint venture and arm’s length company for our Highways Department and teckal companies. Often this has resulted in a change to employee terms and conditions or that the service is delivered differently. The Trade Unions have proven invaluable in this process as they have sought to ensure co-operation between the employer and the employee, that information is shared in an open and transparent way and we have effective communication channels between the employer and the employees. The facility time of union representatives has enabled the Trade Union to play a full and effective role in the change process as a whole. They have been a contributing factor in change across a very large organisation, change that will ultimately result in the Council saving a substantial amount of money as well as preserving and developing essential public services. 4. It is my firm belief that union representatives should have the appropriate amount of facility time in order to fulfil their role to the best of their ability. In the ever increasing financial challenges that Local Government is facing it is vitally important that union representatives continue to play their role. Without them, wholescale change of such a large organisation could become more problematic, they provide us with a direct communication route to and from the employees. The relationship is invaluable on collectively negotiated 112 Trade Union Bill: Written evidence

contracts, where the open and transparent conversations ensure that all needs are considered and whenever possible met. 5. This is a Bill that reserves the power of the Minister to arbitrarily curb the level of facility time; I find this unacceptable and actually not very helpful, especially for a Council that is undergoing a rapid change in order to establish its financial stability going forward whilst still providing quality services. This Bill would disrupt our relationship with the Trade Unions, of which I believe is playing a fundamental role in promoting the change process and the financial stability of the Council. 6. I would also like to take this opportunity to outline my very sincere concerns regarding the check – off element of the Bill which would outlaw the check-off or Deduction of Contributions at Source (DOCAS) systems for Trade Union subscriptions which are currently in operation across much of the public sector. This decision is being taken by Government without any consideration of local circumstances or the views of the employer or the employee. I believe it is the right of the employee to be a member of a Trade Union. I believe that Trade Union membership, not only benefits the individual employee, but the workforce as a whole, as well as the employer. Members of a Trade Union should be allowed to ask their employer to deduct their dues at source. This is an easy process, it is efficient and cheap to administer. This is all about creating an ongoing transparent relationship with the employer and the Union. 7. There are other elements of this Bill which I also oppose and I am duly concerned that basic civil liberties are being undermined in a Bill that fundamentally infringes on a person’s right to not only withdraw their labour, but actually makes it harder to pay their Union dues and limits facility time. 8. I, therefore, request that the points I have made above are considered with due care and attention as part of the consultation process in relation to the Trade Bill.

Further written submission from TUC (TUB 50)

Trade Union Bill: International comparisons The right to strike is a fundamental human right. It is safeguarded by ILO Convention 87 on freedom of association and the right to organise, the UN Covenant on Social and Economic Rights (Article 8), the European Social Charter (Article 6(4)) and the European Convention on Human Rights (Article 11), all of which have been ratified by the UK government. The UK has one of the most restrictive systems for industrial action in the industrialised world. In order to organise lawful strikes, unions must comply with highly complex legislation, including onerous notice and balloting requirements. Unions are required to run postal ballots sent primarily to union members’ homes. Postal ballots are very expensive and deter participation in union democracy. The complexity of the legislation means that unions are at risk of legal challenges, with employers able to gain injunctions where unions have made minor administrative errors. Union members also have very limited protection from dismissal, have no protection from victimisation and regularly experience excessive deductions from pay when exercising their fundamental human right to strike. These restrictions have been repeatedly criticised by both the ILO Committee of Experts and the European Social Rights Committee within the Council of Europe for failing to comply with international law. For example, the European Social Rights Committee has concluded that ‘the scope for workers to defend their interests through lawful collective action is [in the UK] excessively circumscribed.’ According to the International Trade Union Confederation (ITUC) Global Rights Index for 2015, the UK is ranked alongside countries such as Albania, Argentina, Congo, Haiti, Hungary, Jamaica, Panama, Russia, Spain and Sri Lanka, with regular violations of international labour standards.

Additional restrictions on the right to strike The TUC is profoundly concerned that the measures contained in the Trade Union Bill will further threaten the right to strike in the UK. For example, the TUC is concerned that the proposed statutory thresholds represent an unnecessary, unjustified and disproportionate restraint on the right to strike and are therefore unlikely to comply with international human rights standards, including ILO Convention 87. According to the ILO Freedom of Association Committee: ‘The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.’144 The ILO has called on governments to amend their national laws where they include such provisions.145 For example, in Bulgaria trade unions complained to the ILO that legislation, which provides that industrial action is only lawful where it has the support of a majority of those eligible to vote, violates the right to strike

144 ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, paragraph 556. 145 ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, paragraph 558. Trade Union Bill: Written evidence 113

as protected by ILO Convention 87. The ILO’s Committee of Experts agreed and called on the government to amend the legislation. The Committee rejected the Bulgarian government’s claim that its strike ballot threshold was ‘liberal in character’, and that ‘any attempt to amend it may infringe its democratic approach’. Instead, the Committee confirmed that under international law, ‘account should only be taken of the votes cast’ in strike ballots, while any ‘required quorum and majority should be fixed at a reasonable level’. The Committee urged the Bulgarian government to change the law ‘in order to bring it into closer conformity with the principles of freedom of association’.146 The ILO has made similar recommendations to the Nigerian and Honduras governments, which implemented statutory thresholds. The TUC is also concerned that the government’s proposed restrictions on strikes in the public sector extend well beyond the definition of ‘essential services’ recognised by the ILO. The Employment Law Association (ELA) has cautioned the government not to extend thresholds to services not covered by the ILO definition of ‘essential services’.147 The Association’s response to the BIS consultation on thresholds said: ‘ELA cautions that if the provisions [in the Bill and any accompanying regulations] are not drawn as narrowly as possible then the Government runs the risk of a challenge on the basis that the imposition of the raised thresholds infringes Article 11 of the European Convention on Human Rights. Any restrictions on the right to strike must not be greater than necessary to pursue a legitimate aim and are necessary in a democratic society.‘ Clauses 4 to 8 of the Trade Union Bill also create additional legal hurdles for unions seeking to organise lawful industrial action, including requiring unions to provide additional information on the voting paper extending the notice period for industrial action from seven to fourteen days, and providing that the ballot mandate for industrial action expires after four months. The TUC agrees with the European Social Rights Committee’s assessment that the existing procedural obligations in relation to industrial action in the UK are excessive and disproportionate and that the excessive and disproportionate nature of these obligations will be compounded by the Trade Union Bill, clauses 4 to 8. We believe that the cumulative impact of these provisions, and the opportunity they provide for harassing and expensive litigation by employers, are wholly inconsistent with the government’s obligations under Convention 87, article 11 to ‘take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise’.

Limiting the right to protest and to strike The TUC is also concerned that measures contained in Clause 9 of the Bill proposals outlined in government consultation documents represent a significant attack on the civil liberties of working people in the UK, including right to protest and assemble. Of particular concern will be changes to the role of the police in overseeing picketing. The proposals appear to set a worrying precedent for the right to protest in the UK. The proposals have been widely criticised by lawyers and politicians. Leading civil liberties groups – Liberty, Amnesty International and the British Institute of Human Rights – recently issued a joint statement criticising the government’s proposals: “The government’s plans to significantly restrict trade union rights – set out in the Trade Union Bill – represent a major attack on civil liberties in the UK ..... Taken together the unprecedented measures in the Bill would hamper people’s basic rights to protest and shift even more power from the employee to the employer. It is hard to see the aim of this bill as anything but seeking to undermine the rights of all working people.”148

Restrictions on the right to organise The TUC is also concerned that proposals to limit facility time in Clauses 11 and 12 and the proposed ban on ‘check-off’ arrangements in New Clause 11 in the public sector violate international standards relating to the right to organise. These standards include ILO Conventions 87 and 151. The TUC is particularly concerned by powers contained within the Bill and within New Clause 11 permitting the government to rewrite collective agreements which have been voluntarily agreed by public sector employers and trade unions.

Removing the ban on the use of agency workers during strikes The TUC is firmly opposed to this proposal which will permit employers to use agency workers to undermine the effectiveness of industrial action or even to break strikes.

146 ILO (2008) Observation (CEACR), adopted 2007, published 97th ILC session (2008) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Bulgaria www.ilo.org/dyn/normlex/en/f?p=1000:1310 0:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_ YEAR:2276927,102576,Bulgaria,2007; ILO (2012) Observation (CEACR) – adopted 2011, published 101st ILC session (2012) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Bulgaria www.ilo.org/dyn/normlex/ en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_ COMMENT_YEAR:2698633,102576,Bulgaria,2011 147 http://www.elaweb.org.uk/resources/responses-to-consultations/ela-response-bis-consultations-ballots-essential-services 148 https://www.liberty-human-rights.org.uk/news/press-releases-and-statements/trade-union-bill-represents-major-attack-civil- liberties-uk 114 Trade Union Bill: Written evidence

The ban on the supply of agency workers during industrial action has been in place in UK since 1973. A succession of previous governments, including Conservative governments, has recognised that Regulation 7 forms an important part of the industrial relations landscape in the UK and therefore should be retained. The vast majority of EU Member States ban the use of agency workers during strikes. For many years, the agency industry has also promoted the view that it is not good practice to supply agency workers during industrial action. Ciett, the International Confederation of Private Employment Agencies, has issued a Code of Conduct which prohibits the supply of agency workers during strikes.149 Several UK employment businesses have also signed international framework agreements which prohibit the supply of agency workers during strikes. In our opinion, this measure will breach international standards. The ILO Recommendation on Private Employment Agencies, 1997 states that: ‘6. Private employment agencies should not make workers available to a user enterprise to replace workers of that enterprise who are on strike.’ The ILO Freedom of Association Committee has also confirmed that: ‘the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term .... constitutes a serious violation of freedom of association’.150

Working days lost through strikes The government is legislating to make it more difficult to have a legal industrial dispute, but recent figures from the Office for National Statistics show that the number of working days lost through strikes is very modest indeed. The TUC calculated that the number of days lost through industrial action during the past twelve months adds up to just half of one ten-thousandth of a per cent of all the days actually worked. The table below sets out the total number of working days lost through strikes as a percentage of total working days in each sector during the past twelve months. The results range between zero and 0.000369 per cent. Another way of expressing this would be to say that the average UK employee lost less than one third of a single second to strike action during the past twelve months (0.308 seconds). DAYS LOST THROUGH STRIKES AS A PERCENTAGE OF TOTAL WORKING DAYS (TWELVE MONTHS TO AUGUST 2015) Industry Number of Total annual Working days Percentage of employees Working days lost through total working per industry strikes* days lost per year through strikes Agriculture fishing and forestry 169,000 37,180,000 – nil Mining energy and water supply 510,000 112,200,000 3,400 0.000030 Manufacturing 2,780,000 611,600,000 14,300 0.000023 Construction 1,309,000 287,980,000 2,500 0.000009 Wholesale and retail 3,604,000 792,880,000 1,600 0.000002 Transport and storage 1,271,000 279,620,000 58,500 0.000209 Accommodation and food services 1,492,000 328,240,000 – Nil Information and communication 1,007,000 221,540,000 1,600 0.000007 Finance, insurance and real estate 1,371 301,620,000 100 0.0000003 Professional, scientific and technical 1,567 344,740,000 700 0.000002 Admin and support 1,166 256,520,000 1,300 0.000005 Public administration, defence, social security 1,789 393,580,000 145,400 0.000369 Education 3,017 663,740,000 7,200 0.000010 Health and social work 3,812 838,640,000 48,100 0.000057 Other services 1,202 264,440,000 13,200 0.000050

149 Ciett Members’ Commitment Towards A Well Functioning International Labour Market adopted on 27 November 2006. Available at: www.ciett.org/fileadmin/templates/ciett/docs/CIETT_Code_Conduct.pdf 150 ILO (2006) Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, paragraph 632. Trade Union Bill: Written evidence 115

Industry Number of Total annual Working days Percentage of employees Working days lost through total working per industry strikes* days lost per year through strikes Total 26,240 5,772,800,000 297,800 0.000051 Sources: ONS HOUR03 NSA average actual hours per worker (includes both FT and PT employees), ONS LABDO3 Labour disputes, and ONS EMP14 all employees by industry sector. *Note that calculation assumes a 5 day week and 44 working weeks per year (i.e. 52 minus 8 weeks for leave, bank holidays and sickness absence, based on averages from LFS and HSE).

Wider statistics The Office for National Statistics also report that that there were only 151 stoppages last year. Despite having more people in work than ever before, the UK has a historically low level of days lost through strikes. The annual average for the current decade is just 4.7 per cent of the total for the 1970s, 9.5 per cent of the total for the 1980s and, strikingly, just 29.6 per cent of the total for the 1940s when, amongst other considerations, the workforce was much smaller. According to the HSE, 131 million days were lost to work-related ill health in 2013 – 439 times as many as days lost through strikes.

Written evidence submitted by Councillor Doug Taylor, Leader of the Council, Enfield Council (TUB 51) To Committee Members 1. I am writing to you as a Leader of Enfield Council to comment upon statements on, and provisions of, the Trade Union Bill and its implications for effective, and efficient, local bargaining, dispute avoidance and dispute resolution. I do so to impress upon you the significance of having arrangements and processes in place that ensure positive and mutually beneficial working arrangements at a local level. 2. Over time a framework has been developed in the UK to ensure that employee and employer interests are balanced. To do this employers need confidence that they can communicate with their employees in matters such as workforce planning, terms and conditions and policy matters with a legitimate expectation that feedback will be based on a considered and collective evaluation. Trade Unions perform the role of aggregating feedback and being able to guarantee that an employer proposition is more likely to be accepted. This tremendously enhances the stability and development of our organisation. 3. Normal UK employment legislation works on the principle of reasonableness between the employer and the employee. Matters of individual actions and facility arrangements are a reflection of local circumstances e.g reasonable time off for duties. In that context within the public and private sector the law recognises that only the local employer can properly take a view on how to operate, which itself is of course subject to challenge and external adjudication, in tribunals. That principle has worked well to date and has been an assistance to good industrial relations. 4. With regard to individual issues, whether grievances or disciplinary in nature, individual employees benefit from, and the employer benefits from, an independent and professional support service to the employee. Our experience is this can weed out unnecessary and inevitably unsuccessful grievances but also ensures that, in terms of disciplinary issues, the best approach is taken by the employee. Ultimately this can save time and money for the employer. 5. In this context, facility time is a cost effective means of dealing with industrial relations matters. Particularly as my Council, along with other Councils, is restructuring and reducing the workforce the need for good industrial relations has never been more important. Reorganisation and redundancies inevitably will reduce morale and productively, unless handled effectively with a trusted voice for the employee. That is a crucial role for a trade union and contributes to harmonious industrial relations. 6. I understand that the Trade Union Bill has a resource power (Clause 13) which would permit a cap on each Council spend on facility time. It would seem rather farcical to expect a Council to develop efficient organisational structures, internal employee consultation and negotiating systems, and deliver million pound services to the public but deny its right to set the level of facility time appropriate to meeting these objectives. This can only reasonably be a local decision, based on experience and sound business planning. 7. With regard to deductions from payroll for Union fees (check off), I can understand the arguments that this was a cost to the public purse and should be avoided. But that is not the case. Employers levy a charge on Trade Unions for this facility which covers its costs. There is no economic argument for preventing check off, but there is a significant negative for employers if this was to happen. 116 Trade Union Bill: Written evidence

8. I ask the Committee to consider these matters I have raised seriously and not act to interfere with the relationships that are developed at a local level. It is a matter of localism that determination of these matters should reside with the local employer and their recognised Trade Unions. October 2015

Written evidence submitted by the Fire Brigade Union (FBU) (TUB 52) This is the Fire Brigades Union’s written submission to the Trade Union Bill Committee. The FBU is the authoritative, professional voice of firefighters across the UK. The union represents the vast majority of 50,000 firefighters in England, Scotland, Wales and Northern Ireland, including wholetime (full-time) and retained (part-time, on-call) operational firefighters and control staff. The fire and rescue service is an indispensable public service, a public good rightly held in high esteem by the taxpayers who fund it and who receive a first- class service.

1. general comments to the committee The government is proposing extensive restrictions on trade unions and their members without a thorough consultation or evidence-based recommendations supporting legislative change. To date, the government has failed to publish a full impact assessment of all the measures in the bill. Whilst impact assessments have been published relating to the balloting thresholds, restrictions on pickets and protests and the proposed removal of the ban on the use of agency workers during strikes, these have been roundly criticised by the Regulatory Policy Committee as ‘not fit for purpose’ conclusions. The government’s impact assessment cites the FBU’s conduct and tactics during 2010 shifts dispute as an example of why new legislation to govern industrial action is required. It draws heavily upon the 2014 Carr Review which presented an unbalanced account of what actually happened and why the dispute arose in the first place. Indeed, by the authors own admission, the report does not include proposals or recommendations for change “… due to the increasingly political environment within which [he] was operating coupled with the lack of a significant enough body of evidence to support any recommendations for change”. It is extremely disingenuous that the report has been portrayed by the government as evidence-based judgment. Following the second reading, the public bill committee convened to conduct detailed examination of the bill. The FBU is disappointed that the two days allocated to the committee to take oral evidence from witnesses were not effectively utilised. The committee wasted a significant amount of time questioning government witnesses from organisations with tenuous links to the bills remit, who were unfamiliar with the bills contents and whose evidence was clearly of limited value to the committee. In contrast, key stakeholders representing millions of workers whose rights this bill threatens to diminish, were allocated shared slots and permitted only limited opportunity to give evidence on the proposals. London Fire Brigade (LFB) Commissioner Ron Dobson spoke at length during his evidence to the committee about the FBU’s 2010 dispute with LFB in an attempt to justify provisions in the bill on picketing that threaten civil liberties. Matt Wrack, the general secretary of the FBU, spent much of his time – and indeed, the time permitted to the representatives of the four other unions who shared the slot – responding to statements made by Mr Dobson. Matt Wrack endeavoured to put the 2010 dispute into context and correct some of the inaccurate impressions which had been made in earlier evidence. Given the weight that the government has attributed to fire and rescue services disputes, the FBU believe further comments and clarifications would be of value to the committee.

2. fire and rescue service disputes

2010 LFB dispute: background The dispute in 2010 between the LFB and FBU arose as a consequence of local measures to change shift patterns which would be introduced separately by each fire and rescue service. Regrettably, the LFB threatened to sack all 5,600 firefighters in order to impose a new shift system. Firefighters were outraged by this management bullying and voted to take industrial action.

2010 LFB dispute: striking The FBU commenced strike action in October 2010 following a ballot where 79% voted in favour of strike action. Firefighters rightly picketed fire stations and fire service headquarters when they were threatened with the sack and the potential loss of their livelihoods. No FBU members were arrested, prosecuted or convicted on account of this action. When the committee asked Mr Dobson if, to his knowledge, any arrests were made during the dispute, he said no. FBU General Secretary Matt Wrack addressed this inaccuracy in his evidence session, confirming that in fact two arrests were made – of an agency worker and a non-striking London Fire Brigade manager, both of whom drove into striking firefighters on picket lines in separate incidents. It is surprising that Mr Dobson Trade Union Bill: Written evidence 117

appeared to be unaware of the arrests given that his own authority paid compensation to two FBU members who were injured in these incidents.

2010 LFB dispute: agreement In December 2010, FBU members voted to agree revised LFB proposals on shift changes and further planned strikes were called off. As the Carr Review noted, the new proposals and their acceptance was the result of “compromise on both sides”.151 Effective negotiations between unions and employers rely on equal bargaining power. This fire and rescue service dispute demonstrates that the ability of unions to organise lawful industrial action ensures that employers take the views of the workforce seriously and engage in genuine negotiations.

2013-14 fire and rescue services pensions dispute The government’s reliance on allegations stemming from the 2010-11 dispute as the rationale for new legislation to govern industrial action is further undermined by progress made in relations during more recent disputes. In 2013-14, national industrial action took place with strikes taking place across England and Wales in response to the government’s proposals to raise the normal pension age of firefighters from 55 to 60. Despite the fact that there were substantially more strikes, there were substantially fewer allegations made by both sides as acknowledged by Mr Dobson during his evidence session. The Carr Review found that the LFB had learned lessons from previous strikes and attributed the improvement to better contingency planning.152 This achievement demonstrates quite clearly that relations can – and did – improve without recourse to legislation. As we have set out, Mr Dobson’s evidence is disputed by the FBU but, in any case, does not provide support for the proposals within the bill.

3. additional comments on the trade union bill proposals Thresholds for industrial action ballots The government have proposed to introduce a series of arbitrary turnout requirements, so that even where a majority of those participating vote for industrial action, at least half of eligible members have to have voted. Firefighters and those who work in “Important public services” will also have to meet an additional threshold and prove that 40% of those entitled to vote support strike action. The FBU has met these thresholds in its recent ballots, as acknowledged by Mr Dobson and by the government in their impact assessment. Nevertheless the union does not accept these requirements should be laid down in law. These restriction have no basis in domestic or international law or in other voting systems. The threshold and the selected sectors mostly reflects the government actual intention – expressed in its impact assessment – of reducing the number of days “lost” to strikes by two-thirds. The FBU is disappointed that this government and its predecessors have rejected trade union proposals to improve turnout such as electronic voting. As Matt Wrack highlighted in his evidence session, many membership organisations – including both the Conservative Party and Labour Party – use electronic and online balloting for their internal elections.153 The government’s reluctance to afford trade unions the same option indicates that turnout is not the central issue in these proposals, but merely a ruse to prevent strikes and undermine workers’ rights. Furthermore, the government’s proposals to make it harder to lawfully strike will undermine effective industrial relations in the UK. Effective negotiations between unions and employers rely on effective bargaining power. Fire and rescue service disputes demonstrate that the ability of unions to organise lawful industrial action ensures that employers take the views of the workforce seriously and engage in genuine negotiations. The introduction of ballot thresholds will inevitably divert time and efforts away from finding an amicable settlement. Unions will take more time in the run up to ballots, to ensure the necessary turnout whilst employers will have no incentive to seek an early resolution of a dispute as many will wait and see if a union can meet the strike thresholds before making a revised offer. Limits of facility time The government is seeking to limit the amount of time union workplace reps can spend representing members in the public sector. These proposals will undermine unions’ ability to effectively protect their member’s interests by negotiating on pay and condition, raising safety standards and ensuring access to skills and training. The government have failed to consult on these proposals or publish and impact assessment. Making facility time harder to obtain will simply store up a backlog of problems for employers. It will breed resentment with employees at the lack of representation on individual and collective matters, such as

151 The Carr Report: The report of the independent review of the law governing industrial disputes (2014) p.40. 152 Ibid. p41. 153 Report of the Speaker’s Commission on Digital Democracy (2015). 118 Trade Union Bill: Written evidence

pay and conditions, collective bargaining, health and safety, grievances and disciplinary matters, bullying and harassment at work. It will worsen morale in workplaces and contribute to worsening industrial relations.

Firefighters’ safety will be directly threatened if this change comes into force. The FBU’s Serious Accident Investigations involve hundreds of hours of work by union reps to undertake careful investigations of firefighter fatalities and other serious incidents. Lessons are also learned from the work of safety reps on injuries and near misses. This work has been absolutely essential to UK firefighter safety over generations, making the fire and rescue service far safer for firefighters and for the public. Restricting time off for trade union reps puts this in jeopardy.

Limits on time off for trade union duties will also hit some of the wider progressive work that trade unionists are involved with, such as equalities campaigns and environmental campaigns. Some union reps have taken by these roles in the workplace and in their local communities, adding their valuable experience and also bringing important ideas into the workplace. Trade unionists are an authoritative voice for working people and restricting reps’ time off will diminish this valuable contribution. Not long ago, the Department for Business was lauding these roles (BERR, How Businesses Can Gain from Modern Union Representation, 2009).

Compulsory “opt-in” for individuals into the political fund every five years The FBU uses our political fund to represent members’ views and champion the interests of firefighters through political campaigns. The FBU is currently an unaffiliated union and our political fund finances key political campaigns around the terms, conditions and safety of firefighters. Currently, members are balloted every ten years on whether to have a political fund and unions have always met these conditions. FBU members may opt not to pay into the political fund if they so choose. FBU members also have the option to instruct that their political fund cannot be used for the purpose of an affiliation to a political party (even though the FBU is not currently affiliated to any political party).

The government proposals will require union members to formally “opt-in” to the political fund every year. This will place huge administrative burdens on unions and negatively impact funding streams and member’s participation in the political system. Substantial behavioural economic evidence demonstrates that opt-in systems tends to result in reduced participation.

This measure is designed to reduce the funds available to trade unions for campaigning purposes and to reduce the voice of workers in politics. It is designed to reduce the revenue of trade unions and to prevent unions from representing members’ views in campaigns. It is indirectly an attempt by the Conservative Party to reduce funds donated by trade unions to the Labour Party – or indeed other parties.

Removing the ban on the use of agency workers to replace strikers Alongside the bill, the government plans to introduce regulations removing the ban on the supply of agency workers during strike action. These proposals will undermine effective industrial relations in the UK for as Mr Dobson recognised, ‘there are tensions when agency workers are used’. The 2010 FBU dispute considered above was unique in that it did relate to the use of agency workers. This was undoubtedly an important factor in the worsening of industrial relations in the London Fire Brigade. The evidence suggests that broadening this approach will substantially worsen industrial relations across the board.

Furthermore, these proposals pose genuine health and safety risks to agency workers, who could find themselves asked to deliver entire services or industries without the support, proper induction and direction from experience permanent staff.

The use of inexperienced temporary staff will also reduce the quality of services provided to the public. Concerns have been raised about the efficiency of contingency crews providing fire strike cover in recent years. In one incident that took place during the 2010 dispute, one resident reported that the contingency crew who attended the fire at her home in Enfield took 20 minutes to connect hoses to a street hydrant and that when they finally did begin to tackle the fire, they were unable to direct the water jets on target. 154 Previous strikes have exposed the dire contingency arrangements made by the brigade, leading to the union authorising members to leave picket lines to put out fires that agency staff were unable to accomplish

Firefighters are committed public servants and have always agreed to provide minimum levels of service to ensure that the public’s safety and health is protected. Whenever the FBU has organised strikes it has put arrangements in place in case of major emergencies. During strike action at Christmas 2013, firefighters in the South East of England voluntarily refrained from planned industrial action and left picket lines to assist with flood rescues. This was done with the national agreement of the union and the union and its members were thanked for their role by the then fire minister.

October 2015

154 Evening Standard (25 October 2010) p12. Trade Union Bill: Written evidence 119

Written evidence submitted by John Hannett, General Secretary, Usdaw (TUB 53)

Introduction Usdaw welcomes the opportunity to provide written evidence to the Parliamentary Committee reviewing the Trade Union Bill. Usdaw (Union of Shop, Distributive and Allied Workers) is the UK’s fourth largest trade union with over 440,000 members. Usdaw organises across a number of different private sector industries such as Retail, Distribution, Warehousing, Food Manufacturing, and Call Centres. Over the past 20 years, Usdaw has pioneered the partnership approach in our agreements with many Private Sector employers. The partnership approach is based on the principle that a Company and Union have a shared agenda in ensuring a successful business that can provide strong and secure employment for its workforce. In line with this approach, Usdaw rarely organises industrial action and sees such a process as a last resort following a serious breakdown in industrial relations. During 2014, Usdaw completed over 135 separate pay reviews, in addition to numerous pensions, redundancy and shift change consultations. Throughout all this work, Usdaw did not undertake one industrial action ballot or take one day’s strike action. Whilst Usdaw will only very rarely conduct an industrial action ballot, Usdaw sees the ability to run such a ballot as an important part of ensuring that employers enter negotiations with a mind-set to reach agreement. Usdaw is concerned that any steps to weaken the ability of trade unions to take industrial action will damage the nature of our effective industrial relations strategy. Usdaw sees no benefits from the Government’s proposals around industrial action ballots, picketing and Agency Workers. Usdaw operates our own Political Fund. In addition to funding our affiliation to the Labour Party, this fund allows the Union to participate in political campaigning on behalf of our members. One of Usdaw’s most high profiles campaigns is entitled Freedom From Fear. This campaign seeks to ensure that retail workers receive adequate protection from verbal and physical abuse. A major part of this campaign seeks to ensure the creation of an additional offence of assaulting a worker serving the public. Without a Political Fund, Usdaw would find it difficult to pursue such a cause and protect retail workers from the very serious threat of physical and verbal abuse. Usdaw works hard to ensure that our members are aware of the political campaign work we undertake on their behalf and promote how the world of politics is relevant to their daily lives. In line with current legislation, Usdaw runs a Political Fund ballot every ten years asking members if they believe that the Union should continue to be able to engage in political activity. The last ballot took place in 2013 where the continuation of the fund was accepted with a 93% yes vote. Usdaw’s experience shows that the provisions in the Trade Union Bill are an example of unnecessary regulatory red tape that will offer no discernible benefit whilst damaging the productivity of not only trade unions but also private enterprise.

The Political Fund Usdaw has serious concerns over the regulatory burden proposed through Clauses 10 and 11 of the Trade Union Bill, relating to Trade Union political activity. Usdaw’s political activity is already entirely transparent. As part of the Usdaw membership application form, all new members are advised of their right to opt-out of Political Fund contributions and a number of new members do make this choice. For information, a copy of the Usdaw membership application form is attached to this submission. Members can also choose to opt-out of contributing to the Political Fund at any time and this is advised on the membership form as well as in the Union’s Rule Book, which is voted on every year as part of our Annual Delegate Meeting. In addition, and as outlined above, Usdaw ballots all of our members every ten years to confirm that they agree with Usdaw continuing to operate a Political Fund and undertaking political activity. During this ballot process, Usdaw has to demonstrate to our members that we use the Political Fund wisely and in their best interests. Furthermore, Usdaw takes a proactive approach to ensuring that our members are engaged in our political work, providing updates through our regular member and representative journals. Without being able to clearly demonstrate that the Political Fund is in our members’ best interests, the membership would not vote to continue contributing to it. As previously stated, under the last ballot in 2013, 93% of members voted for the Union to continue to operate a Political Fund. There is no comparable situation whereby individuals have such control over how money is spent after they have paid for a service, yet through strong engagement and high levels of accountability, Usdaw members overwhelmingly endorse our political work.

Opt-In Process Our political work, which is heavily supported by our members, is under serious threat from the provisions of clause 10 in the Trade Union Bill. As a result of the proposed provisions, within three months of the Trade Union Bill gaining Royal Assent, Usdaw will be required to gather an ‘opt-in’ signature from all members contributing to the Political Fund. Usdaw currently has around 420,000 members contributing to our Political 120 Trade Union Bill: Written evidence

Fund meaning that we will need to collect three signatures per minute, every minute of the three month period in order to maintain our current level of funding. The process will not only require the collection of hundreds of thousands of signatures but also updating hundreds of thousands of membership records and storing hundreds of thousands of opt-in forms. Staggeringly, this process will need to be repeated every five years at a time when members already have a right to opt-out of Political Fund contributions and are balloted every 10 years on the continuation of the Fund. The new provisions will mean that it is possible that, in just over a ten year period, Usdaw will need to contact our members five times regarding the continuation of their political subscriptions and the Political Fund. Three times to collect an ‘opt-in’ signature and twice to undertake a ballot. The provisions of Clause 10 begin to put the Union in a position of potentially harassing our members to be able to continue to do something that 93% of them already support. Usdaw members are not cajoled, unwillingly into paying Political subscriptions. Our members understand that political activity helps to deliver the objectives of the Union and they trust Usdaw to spend their contributions wisely. The burdensome red-tape created through these provisions will not only impact upon trade unions. Where Usdaw has recognition agreements with employers that provide for paid release of shop stewards, these private sector businesses are also likely to be landed with the costs of this regulation. Usdaw organises in private industries that operate on a 24/7 basis. The best place to speak to, and get the signatures of, Usdaw members is in the workplace; and with such a short time-frame to sign members up, workplace engagement will be the only format that Usdaw can use to gather enough signatures. This workplace engagement will involve taking shop stewards away from their day jobs to talk to members, filling out paperwork and ensuring that all of the correct boxes have been ticked. This will be time where both the shop stewards and members would be far more productive if they were actively engaged in their job role. The requirement to re-run this process every five years is likely to lead to a repetitive cycle of lost productivity, bringing with it reduced economic performance and increased costs for businesses. This proposal is the quintessential definition of tick box, red tape, regulation offering no demonstrable benefit, purpose or requirement. Furthermore, Usdaw recognises that a move to an ‘opt-in’ system of political subscriptions could be perceived to be an attack on the ability of the trade unions to undertake political activity. During the course of the last Parliament, Auto-Enrolment pension provisions were introduced in an attempt to encourage participation in Occupational Pension Schemes. This change was successful with more people than ever now contributing to an Occupational Pension Scheme. As the proposal to move to an ‘opt-in’ system of political subscriptions offers no discernible benefit, and has not been proposed for any other section of society, Usdaw is concerned that Clause 10 is simply an attempt to restrict the ability of trade unions to partake in the political process.

Check-Off Usdaw also has serious concerns regarding the proposed subsection 2 of clause 85 to Trade Union and Labour Relations (Consolidation) Act 1992. This subsection will require Usdaw to double the number of subscription rates deducted at source by employers; the current rate along with a rate excluding the political subscriptions. Usdaw has check-off arrangements in place with all private sector companies where we are recognised and currently 92% of all Usdaw’s political subscription payers pay their Usdaw contributions through such check- off arrangements. Check-off arrangements are provided to Usdaw by private sector employers who understand the benefits that an independent and representative trade union can provide for the business. Furthermore, the check-off arrangements demonstrate to members that the business is committed to their relationship with Usdaw. However, check-off arrangements do present an administrative cost for employers and payroll providers and as such, Usdaw works hard to operate as few membership rates as possible. The proposals contained within subsection 2 will bring about unnecessary costs for employers through introducing a second set of subscriptions as a result of needless Government intervention. Furthermore, Usdaw believes that the state should not intervene in determining the price of union membership. If a member exercises their right not to contribute to the Political Fund, a union should be free to charge them the normal rate of membership, transferring more money into the General Fund. The Bill proposes unheralded, and potentially undemocratic, State intervention into the inner workings and finances of Trade Unions.

Reporting procedures Clause 11 of the Bill will provide the Certification Officer with new powers to investigate how Unions’ Political Funds are used and where the money goes. Any Trade Union spending more than £2,000 per year will be required to submit detailed annual accounts to the Certification Officer. The detail required within such a report goes far beyond the level of disclosure required for any other source of political donation. Trade Union Bill: Written evidence 121

Usdaw understands and wholeheartedly accepts the need for transparency over how political campaigns are funded. However, such a need for transparency clearly does not extend to providing detailed information on the costs of hosting a conference. Usdaw, as a large organisation, frequently negotiates preferential rates with various companies when hosting conferences or other events with the terms of such agreements remaining confidential between the parties. If the Government were indeed to intervene and require that the terms of such arrangements be publicly divulged, Usdaw is likely to be unable to agree such terms in the future. The organisations with which Usdaw agrees such terms could also have their market competitiveness under threat. Usdaw has seen no evidence or argument that trade union political funding is not already entirely transparent. —— Details of a Trade Union’s political expenditure are already publicly available. —— Trade Union political donations, like donations from many other sections of society, are already subject to clear reporting requirements to the Electoral Commission. —— And, a Trade Union with a Political Fund is required to submit an Annual Report of the Fund to the Certification Officer. The existing requirements not only ensure that Usdaw members, as well as anyone else, can clearly see how Usdaw uses our Political Fund, they also enable members to use that information when deciding whether to contribute to the Fund. Trade Union political expenditure is already far more transparent than any other form of political funding and requiring a union to submit an annual, line by line, set of accounts is an unnecessary regulatory burden that is not seen anywhere else.

Industrial Action As mentioned earlier, Usdaw promotes a Partnership Approach to industrial relations with the union and employers working together to the benefit of the business. In line with such an approach, Usdaw rarely conducts industrial action ballots and sees such a process as a last resort following a serious breakdown in industrial relations. Usdaw has demonstrated that we are able to resolve industrial disputes within the current industrial relations framework and without the need for an industrial action ballot. This modern approach to industrial relations can also be seen across the wider economy where industrial action is already at record lows. Since 2010, an average of 647,000 days have been lost to industrial action each year. This compares to an average of 7.2 million days per year during the 1980s. Throughout the Bill, and accompanying notes, the Government has completely failed to recognise how infrequently industrial action occurs within the UK. The fact that industrial relations rarely breakdown to a point that leads to industrial action demonstrates that the current industrial relations framework adequately serves employees, employers and unions. Usdaw is deeply concerned that, as a result of a union’s diminished ability to take industrial action, some employers are more likely to believe they can push through their own agenda during negotiations. This will subsequently make it more difficult to reach agreements, leading to unresolved grievances, lower engagement and higher turnover. Usdaw firmly believes that the provisions in the Bill are an irresponsible attempt at undermining what has proved to be an effective and successful framework for UK industrial relations. Usdaw is alarmed that throughout the Bill and accompanying paperwork, the Government has not made one proposal aimed at encouraging employers to seek an earlier settlement of disputes.

Ballot Thresholds Usdaw believes that the proposed threshold requirements are likely to damage workplace democracy rather than improve it. The proposed threshold system offers an incentive for those people who do not support industrial action not to take part in the ballot. An individual’s vote against industrial action would be added to the threshold requirement and potentially increase the likelihood of industrial action being accepted. As such, the proposed system of ballot thresholds is likely to harm workplace democracy by encouraging some people not to participate in the democratic process. Usdaw shares a desire to improve workplace democracy and believes that this can easily be achieved through the provision of electronic balloting. The security of online registration systems has been clearly demonstrated through online banking and shopping platforms. In fact, all major political parties have recently deemed online security to be robust enough to run online balloting. Usdaw is concerned that the refusal to consider different forms of balloting for industrial action appears to demonstrate lukewarm support for actually increasing workplace democracy. This refusal may suggest that the Bill could in fact be motivated by a desire to restrict the right to strike in contravention of various ILO Conventions and the European Convention on Human Rights. Usdaw, as a Union organising solely in the private sector, is also concerned over the proposed 40% yes vote threshold for important public services. The consultation document suggests that this threshold may apply to ancillary workers along with where an individual’s absence would have an ‘adverse impact on the delivery of the service’. Such definitions are likely to create significant ambiguity in the formation of industrial action ballots and lead to increased litigation from employers attempting to redefine the relevant groups. Not only will such litigation bring with it needless costs for both unions and employers but it also takes attention away from the goal of effective industrial relations; resolving industrial disputes as quickly as possible. 122 Trade Union Bill: Written evidence

Usdaw believes that if the proposals are enacted in their current form, the only option for trade unions will be to conduct the vast majority, if not all, industrial action ballots under the 40% threshold requirements. Such a restriction will clearly be a disproportionate means of meeting the Government’s stated aim and is likely to fall foul of an individual’s right to take strike action as outlined in Section 11 of the European Convention on Human Rights (ECHR).

Requirements During Industrial Action Usdaw believes that the Government’s proposals to make the Code of Conduct on Picketing legally enforceable are unhelpful, excessive and unnecessary. Furthermore, Usdaw is surprised to see a Conservative Party Government proposing such unwarranted regulatory burdens on civil society especially when no clear evidence has been provided of any situation that would have been resolved as a result of the proposals being in force. Usdaw agrees with the Regulatory Policy Committee that it is unclear how compliance with the Code will in any way prevent intimidation of non-striking workers. Whilst it is not clear how these proposals will provide any form of benefit, there is no doubt over the potential cost implications. Due to the new notification procedures, Usdaw will have to ensure comprehensive training is provided to all members attending a picket line as a minor breach, such as using a loudspeaker without prior notification, could invalidate the whole picketing process. In fact, the proposed notification requirements represent some of the most burdensome regulatory excesses of the whole Bill. The idea that a perfectly legal and democratic industrial action ballot could be undermined because a ballot supervisor leaves an armband at home is a clear attack on the authority of a free and civil society. Usdaw was pleased to see reports that the Social Media notification requirements are likely to be dropped from the Bill. Social Media is a tool used across Government and private industry to quickly communicate with customers and members of the public. So much so that there is now a widely held expectation on large organisations to respond quickly to messages and contact through Social Media platforms. The Bill’s proposals to require unions to advise on plans to run Facebook and Twitter accounts, as well as the likely content, represent a severe restriction on the right of unions to communicate with their members. Under UK law, there are already strict regulations on pickets and protests in place. As a result of this framework, anyone stepping outside of ‘peaceful picketing’ rules can face a raft of civil and criminal charges, including that of causing intimidation on the picket line. Usdaw believes that the proposals around picketing and protest are ill thought out and agrees with the Regulatory Policy Committee that they are not fit for purpose.

Conclusion As highlighted above, there is already a raft of legislation and self-governance covering the trade union movement. In addition to regulations covering industrial action ballots, picketing, political donations, registering with the Certification Officer, publishing accounts and electing officials, Trade Unions are permanently accountable to their members and potential members. Usdaw’s experience shows that the provisions currently contained within the Trade Union Bill are not only unnecessary but a clear example of overreaching bureaucracy that would seriously curtail the effective functioning of industrial relations across the country. However, it is not just trade unions that are shocked by the scope and scale of the proposals. The leading Human Rights Groups Liberty and Amnesty International have called them a major attack on civil liberties and the Conservative MP, David Davies has likened to a Franco style dictatorship. As outlined already, Usdaw sees no justification for the provisions contained within this Bill. October 2015

Written evidence submitted by Councillor Anthony Hunt, Deputy Leader at Torfaen County Borough Council (TUB 54) Dear Sir/Madam, We are a unitary Council in South Wales, and therefore have an interest in this Bill as a major employer. We have grave misgivings about this Bill, namely: —— We do not see the necessity of the Bill at a time when strike action is relatively uncommon and when council staff are already coping with increasing workloads and repeated real-terms pay cuts. —— We fear that the needlessly aggressive and confrontational tone of the Bill will undermine the constructive relationships which many employers have built with Trade Unions. This would be to the detriment of both our staff and the people they work to serve. —— We fear that many of the Bill’s requirements will be impractical. For example, the practice of auto deduction of union subs is one which works efficiently for both employer and employee. Trade Union Bill: Written evidence 123

—— We believe that the main measure which would help increase ballot turnouts, online balloting, should be considered if thresholds are to be introduced. We note that all the major political parties have used these facilities for internal elections. —— We do not believe that the Bill should apply to the public sector in Wales, as this area is devolved to the Welsh Government who are pursuing a more constructive partnership approach. At our council meeting on 20th October 2015, we therefore passed the following motion: Trade Union Bill (Proposed by Cllr Anthony Hunt) This Council notes the debate surrounding the introduction of the UK Government’s Trade Union Bill. As a Council, we believe that Trade Unions have an important and positive part to play in our society and our economy, both in fostering productive industrial relations and building a fairer and more equal country. We believe that this is an important issue for the Council as we strive to retain a productive council-trade union relationship, in the interests of both service users and our workforce, something which this Bill risk undermining. Union members working for this Council pay a vital role in the education of our children, caring for older and vulnerable people, keeping our Borough tidy and providing many of the other services that are vital to our communities. Most of them are paid very modestly for the work they do, and they deserve our respect, especially after years of real-terms pay cuts and ever-increasing workloads. Yet instead of seeking to build a fairer deal for these hard-working public servants, this Bill attacks their rights and the rights of those who represent them. We believe the proposals in the bill are counterproductive, vindictive and socially divisive and constitute an illiberal attack on democracy and fundamental freedoms, as noted by MPs of several parties in the recent House of Commons debate on the Bill. This Council therefore resolves to oppose the introduction of the Trade Union Bill 2015, urges the Government to abandon the bill and instead make a commitment to work in partnership with the trade union movement to achieve a fairer society. This Council also resolves to write to the Welsh Government requesting them to demand that the British Government exempts Trade Unions in Wales from the proposed Trade Union Bill. We would be happy to expand on our views at your convenience. October 2015

Written evidence submitted by Councillor Jennifer Mein, leader of Lancashire County Council (TUB 55)

Turnout Requirements As leader of Lancashire County Council, I consider the increased turnout requirement for industrial action proposed in the bill unnecessary, arbitrary and overcomplicated. Even in the face of unprecedented cuts to this authority’s budget, the number of days lost to strike action remains very small. It also seems unclear from the wording of the bill what services would be considered ‘important public services’. It is unclear whether that would then require multiple ballots for different services even within the council as a single employer, even in the event of a single nationwide dispute such as with the pensions dispute. Potentially, some council workers could strike on any successful ballot over a 50% turnout threshold but others would require 40% support amongst all those eligible to vote. Such poor definitions suggest that the bill was drafted with specific political objectives in mind as opposed to any consideration relating to the democratic will of workers in any given workplace. Indeed, the vast majority of Members of Parliament are elected with less than 40% the vote.

Industrial Relations If the Trade Union Bill genuinely seeks to improve the turnout of ballots, it seems unusual that other methods of balloting have not been considered such as electronic balloting which saves time and money during negotiations with unions. The proposal to introduce turnout requirements and re-balloting after four months would lengthen and potentially intensify disputes as unions will be essentially forced to go to greater lengths to mobilise support amongst staff. Other elements of the Trade Union Bill similarly have the potential to entrench positions and hinder a satisfactory conclusion being made between employers and unions. Using agency staff in an attempt to break strikes would undermine mutual respect and trust between the council and its staff. This kind of measure does not sit comfortably with the kind of atmosphere we wish to create in the workplace. The measures covering facility time are also a cause for concern. There is a significant amount of evidence from researchers that says that facility time from trade union representatives can minimise disputes by 124 Trade Union Bill: Written evidence

improving communication between employers and staff and by resolving smaller issues before they escalate. The use of facility time for trade union representatives should be a negotiated decision between employers and unions to suit the specific needs of that workplace, rather than something dictated by government.

Regulation of Picketing The proposals to further tighten the regulations on pickets are unnecessary and run the risk of criminalising council workers for very minor infringements of what seems to be a draconian set of regulations. There are also concerns about the time that could be wasted policing these additional regulations at a time when police forces are also increasingly stretched themselves because of budget cuts.

Political Donations Forcing union members to opt-in rather than opt-out of union political funds seems to have nothing to do with democracy and everything to do with an attempt to reduce the well-regulated and democratically agreed small donations from millions of workers to the Labour Party, whilst offering no checks whatsoever on the large donations from big business and the wealthy who bankroll the Conservative Party.

The Role of the Certification Officer It seems difficult to understand what the proposed changes to the role of the Certification Officer seek to achieve. Currently we have a highly respected, independent officer who can initiate, investigate, make decisions and ultimately punish trade unions over clearly internal constitutional matters such as trade union elections or union mergers, without there even being any complaints raised by any of the trade union’s members. This opens up the office to being bogged down with investigations initiated as the result of spurious complaints by employers or politically motivated members of the public. The extra cost of this will then be apparently carried by trade unions but not employers’ federations such as the CBI. In doing so, I believe this would result in two problems, firstly undermining the cherished independent status that the Certification Officer enjoys and secondly distract the Certification Officer from performing the best possible job in the role we currently understand the post to encompass. October 2015

Written evidence submitted by Dusty Amroliwala, Deputy Vice Chancellor, University of East London (TUB 56) I write on behalf of my University to offer a number of headline comments and reflections on the proposed House of Commons Public Bill Committee on the Trade Union Bill.

About UEL The University of East London (UEL) is a modern University located in Stratford and the Docklands. We have c19,000 students, employ c1,400 staff and recognise 3 trade unions: UNISON, UNITE and UCU. UEL prides itself on being engaged with socially important issues. Our students mainly live within the East London area – in some of the most socially deprived boroughs in the UK. We have been proactive on the issue of social and financial exclusion (both for our own students and those in the local community) for a number of years and we are proud of our track record in this important work.

General comments In respect of the specific measures proposed in the Bill, we have the following comments: 1. Where they are recognised, trade unions can play an important role in resolving disputes in the workplace and in avoiding the need for industrial action. Placing tighter restrictions on trade unions, may in some circumstances, lead to a deterioration in good (and therefore effective) employee relations. 2. In recent times, our experience of working with our trade unions has been a positive one, and it is clear to us that our recognised unions seek to avoid becoming embroiled in formal disputes with us. We have in the past year, for instance, and at the request of our unions, sought ACAS’s support to conciliate on what might otherwise have escalated into a matter of formal dispute. 3. The Government’s proposals may prove divisive in some workplaces, and may impact detrimentally on co-operation and employee engagement, staff turnover and productivity. 4. Although UEL considers itself a good employer and we have a constructive relationship with our unions, we know that some of the most deprived workers in our society are less fortunate, and may be employed by less scrupulous employers. In such cases we continue to recognise the importance of having a strong trade union within a workplace, to moderate the behaviours of such employers. Trade Union Bill: Written evidence 125

Specific comments 5. “Check off”: The Government has announced its intention to stop “check off” in the public sector. At the time of writing, the wording of the amendment has not been seen. As an employer we do not have an issue with implementing “check off” arrangements. 6. Picketing (Clause 9): laws already exist which prevent intimidation or the use of aggressive behaviour on picket lines and unions must comply with the Statutory Code of Practice. We do not see the benefit in tightening further the legislation on picketing. 7. Facility time (Clauses 12/13): our union representatives play a vital role within UEL, enabling consultation and negotiation, collective agreement and policy development as well as helping to deal with difficult individual matters on behalf of their members. Reasonable facility time is something that we are content to allow – to the benefit of all parties. We believe that the allocation and agreement around facility time should be left to the employer’s discretion, as it is in the private sector. 8. Ballots: we would support legislation permitting the use of secure electronic and workplace ballots, although it would clearly be necessary for proper safeguards to be in place to ensure that such ballots were conducted properly. I trust that these comments may be of assistance. October 2015

Written evidence submitted by Cllr David Perry, Leader of Harrow Council (TUB 57)

RE: Trade Union Bill – Consultation response As Chair’s of the House of Commons Public Bill Committee on the Trade Union Bill I am writing to you to raise my concern about some measures contained within the Trade Union Bill. I am writing to you on behalf of our Harrow Council staff, and the registered Trade Unions who represent them. 1. As a Council we recognise the positive contribution that trade unions and their members make across workplaces in Harrow Council to resolving disputes and reduce costs both on an individual and collective basis when they occur. We value the constructive and mature relationship that we have with our Trade Unions that enables us to resolve any service issues at an early stage and enables us to deliver services at a reduced cost to the taxpayer. We recognise the Trade Unions commitment, and the commitment of all our staff, to the delivery of good quality public services. 2. This Council is clear that facility time, negotiated and agreed by us and our Trade Unions to suit our own specific needs, has a valuable role to play in the delivery of good quality and responsive local services. Facility time should not be determined or controlled by Central Government, particularly given this Government’s commitment to devolution and local decision making. 3. This Council is happy with the arrangements we currently have in place for deducting Trade Union membership subscriptions through our payroll. We see this as an important part of our positive industrial relations, as well as being a cost effective and easy to administer system that supports our staff. 4. The changes that have been proposed would not be an improvement to our current arrangements and I would be extremely concerned that the Bill would actually have a detrimental financial impact to the Council, with regards to the withdrawal of DOCAS (Check off) arrangements. 5. As a Council we would want to continue our own locally agreed industrial relations strategy and will take measures to maintain our autonomy with regard to facility time and the continuing use of check-off in the maintenance of good industrial relations that Harrow is nationally recognised for. I hope you take these comments on board, and I look forward to receiving your response. October 2015

Letter from the Department for Business, Innovation and Skills (TUB 58a) In Tuesday’s Committee session, Tom Blenkinsop MP raised the issue of whether an industrial ballot is conducted amongst union members or amongst all employees. As I set out in my response, the law on this issue is very clear. Whilst a bargaining unit can consist of everyone in the workplace regardless of whether they are a union member or not, only those who are entitled to vote should be balloted by the union on industrial action. Section 227 of the Trade Union and Labour Relations Consolidation Act 1992 provides that: 126 Trade Union Bill: Written evidence

“entitlement to vote must be accorded equally to all 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, of course, does not mean others cannot take part in industrial action, should a ballot mandate be secured. Such others could include, for example, workers who are not members of the union in question or who were not at the time of the ballot. I hope this provides a useful clarification. I am copy this letter to Sir Alan Meale and the members of the Public Bill Committee. 21 October 2015

Letter from the Department for Business, Innovation and Skills (TUB 58b)

Statistical Information On Labour Disputes In the fourth sitting of the Trade Union Public Bill Committee, Stephen Doughty suggested it would be helpful for the Committee to have a full compendium of the ONS statistics relating to industrial action. The key ONS survey in this area is the Labour Disputes Survey. It provides information on the number of stoppages resulting from labour disputes, the number of working days lost during the stoppages and the number of workers involved. There are no quantitative data sources that provide statistics on the number of other types of industrial action. The latest Labour Disputes Survey tables can be accessed using the following links: http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/october-2015/table-labd01.xls http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/october-2015/table-labd02.xls http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/october-2015/table-labd03.xls I hope this is of assistance. I am copying this letter to members of the Public Bill Committee. 19 October 2015

Letter from the Department for Business, Innovation and Skills (TUB 58c)

Statistical Information On Labour Disputes In the fourth sitting of the Trade Union Public Bill Committee, Stephen Doughty suggested it would be helpful for the Committee to have a full compendium of the ONS statistics relating to industrial action. The key ONS survey in this area is the Labour Disputes Survey. It provides information on the number of stoppages resulting from labour disputes, the number of working days lost during the stoppages and the number of workers involved. There are no quantitative data sources that provide statistics on the number of other types of industrial action. The latest Labour Disputes Survey tables can be accessed using the following links: http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/october-2015/table-labd01.xls http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/october-2015/table-labd02.xls http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/october-2015/table-labd03.xls I hope this is of assistance. I am copying this letter to members of the Public Bill Committee. 19 October 2015

Letter from the Department for Business, Innovation and Skills (TUB 58d)

Trade Union Bill – Government Amendments I am writing to draw your attention to some Government amendments which have been tabled to the Trade Union Bill. I attach a copy of these amendments. Trade Union Bill: Written evidence 127

Prohibition on deduction of union subscriptions from wages in public sector (“check off”) This amendment would prohibit public sector employers prescribed by regulations from deducting trade union subscriptions from workers’ wages and sending these to the unions concerned, a service called ‘check off’.

Schedule 4 technical amendment Amendment 111 is a minor and technical amendment to correct a drafting error (the inadvertent removal of an important cross reference to section 24B of the 1992 Act). When section 43 of the Transparency Act Transparency [etc] Act 2014 commences next year it will provide a right of appeal against decisions made by the Certification Officer under section 24B and 24C of the 1992 Act (24B and 24C are inserted by the 2014 Act). The amendment in paragraph 18(4) of Schedule 4 to the Bill amends section 43 of the 2014 Act so that it will additionally operate to provide a right of appeal against a decision of the Certification Officer under paragraph 5 of new Schedule A3 (investigatory powers) contained in Schedule 1 to the Bill. The amendment also removes the references to section 24B and 24C. The removal of the reference to 24C is correct because those powers are being replicated and superseded by the provisions in this Bill. However section 24B is not being changed by this Bill and should still be referenced. The amendment is necessary to correct that error. I am copying this letter to Angela Eagle, Shadow Secretary of State for Business, Innovation and Skills and to members of the Public Bill Committee. 21 October 2015

Letter from the Department for Business, Innovation and Skills (TUB 58e)

Trade Union Bill – Government Amendments I am writing to draw your attention to some Government amendments which have been tabled to the Trade Union Bill. I attach a copy of these amendments.

Prohibition on deduction of union subscriptions from wages in public sector (“check off”) This amendment would prohibit public sector employers prescribed by regulations from deducting trade union subscriptions from workers’ wages and sending these to the unions concerned, a service called ‘check off’.

Schedule 4 technical amendment Amendment 111 is a minor and technical amendment to correct a drafting error (the inadvertent removal of an important cross reference to section 24B of the 1992 Act). When section 43 of the Transparency Act Transparency [etc] Act 2014 commences next year it will provide a right of appeal against decisions made by the Certification Officer under section 24B and 24C of the 1992 Act (24B and 24C are inserted by the 2014 Act). The amendment in paragraph 18(4) of Schedule 4 to the Bill amends section 43 of the 2014 Act so that it will additionally operate to provide a right of appeal against a decision of the Certification Officer under paragraph 5 of new Schedule A3 (investigatory powers) contained in Schedule 1 to the Bill. The amendment also removes the references to section 24B and 24C. The removal of the reference to 24C is correct because those powers are being replicated and superseded by the provisions in this Bill. However section 24B is not being changed by this Bill and should still be referenced. The amendment is necessary to correct that error. I am copying this letter to Angela Eagle, Shadow Secretary of State for Business, Innovation and Skills and to members of the Public Bill Committee. 21 October 2015

Letter from the Department for Business, Innovation and Skills (TUB 58f) In the fifth and sixth sittings of the Trade Union Bill Public Bill Committee session on 22 October, I made commitments to write on the following matters.

Clause 9 Picketing arrests During the debate on picketing in the morning session, I provided a summary of the section of the Carr Report which deals with TfL’s submission and the description of the conduct of disputes on London Underground. Jo Stevens MP asked the question as to how many arrests there had been. The Carr Report refers to two arrests in relation to picketing. One arrest related to aggressive behaviour on the picket line. After being convicted, that 128 Trade Union Bill: Written evidence

individual was later acquitted. A second arrest led to a conviction for assault, which was later overturned on appeal.

Clause 12 Facility time and union conferences In the afternoon session, Jo Stevens MP requested confirmation that trade union facility time was used to fund union representatives attending union conferences. I confirmed that data collection following the 2011 reforms to facility time in the Civil Service found that conference attendance was being paid for as part of facility time. I agreed to write to Committee to confirm the detail around this cost. Conference attendance for trade union representatives is included in ACAS’ Code of Practice – Time off for trade union duties and activities as an example of a trade union activity, and therefore an element of facility time. In 2013, the cost of facility time in the Civil Service was £16.7million, compared to £9.45million for the latest rolling year to date. Of this £16.7million, nearly £0.5million was spent on sending union representatives to attend union conferences, with some departments spending over £100,000 in a single quarter. Our reforms in the Civil Service introduced proper monitoring and control of spending on facility time, and this is one of several areas where a lack of value for money for taxpayers was identified.

Calculation on the facility time savings I also committed to write following Chris Stephens MP’s request that I confirm how the savings figures to the taxpayer of facility time reforms have been calculated.

Savings of over £52million in the Civil Service The 2011 reforms in the Civil Service found that the annual cost of facility time was £36million. In 2013, the cost reduced to £16.7million, and in 2014 the cost reduced again to £9.6million - a saving of over £45million. We have since collected the Quarter 1 (January-March) costs for 2015, which show that costs are still reducing; these updated figures will be published shortly and show a quarterly reduction of over £6million compared to the costs before the reforms. Quarter 2 (April-June) is currently being collated and shows continued savings that are not included in the £52million figure. The latest Civil Service publications can be found on gov.uk.

A potential saving of £150million in the Public Sector Current spending on facility time in the public sector is estimated at 0.14% of the total paybill. Based on the experience in the Civil Service following its facility time reforms, which saw the cost of facility time fall from 0.26% of the total paybill to 0.07% in 2014, a reduction of close to 70%, there are two possible scenarios for pay bill savings in the public sector- both of which would provide a considerable saving to taxpayers. Firstly, if a reduction in the percentage of the paybill spent on facility time to the amount spent in the Civil Service (i.e. from 0.14% to 0.07%) was seen, this could represent an annual saving of approximately £105million from the total public sector pay bill of around £150billion. However, trade union membership density is lower in the wider public sector than in the Civil Service, at around 54% compared with 75%, and so a more proportional scenario was also considered. With reduced union representation, it may not be correct to assume that the public sector would require the same level of facility time as the Civil Service, just as the average spend in the private sector, where union membership is also lower, is estimated at just 0.04% of the total paybill. Under this second scenario, if a proportional reduction was seen in the public sector (i.e. around 70%) as seen in the Civil Service, this reduction would represent an annual saving of approximately £150million (an annual spending decrease from £201 million to £62million).

Exercise of facility time powers I promised to write to the Committee before we debate clause 13 to indicate who will exercise the powers in clause 12 to require the publication of information about facility time; and who may exercise the reserve powers in clause 13 having regard to that information. It is right that Ministers have the flexibility to propose and, as a last resort, set caps on paid facility time for the sectors and organisations for which they are responsible. This will allow the relevant Minister to make regulations tailored to that. So, for example, the Secretary of State for Health will make regulations imposing publication requirements on NHS and other health employers, and may exercise the reserve powers in relation to them if he considers it appropriate to do so, taking account of the information relating to facility time that they are required to publish. Trade Union Bill: Written evidence 129

I am copying this letter to all the members of the Public Bill Committee. 20 October 2015

Written evidence submitted by Oldham Council (TUB 59) This Council notes with disappointment the passing of the Trade Union Bill at its second reading in Parliament on 14 September 2015. This Council recognises the importance and real efficiencies to be gained via collective bargaining and the benefits of early engagement with our Trade Union colleagues. This Council believes that the Bill represents the most vicious attack on Trade Unions in over 30 years by introducing measures that will make it more difficult for employees to stand up for and defend their rights at work. Trade Unions call for and initiate the taking of industrial action for a wide range of reasons, including defending wages and pensions, conditions at work as well as health and safety. To actively undermine this is draconian, is against basic human rights. In this regard this Council notes that Liberty, Amnesty International and the British Institute of Human Rights have all condemned the Bill as an attack on the basic right to protest. The Chartered Institute of Personnel and Development has branded this law to be an ‘outdated response that could have potentially counterproductive consequences’. In Oldham we recognise the importance of Trade Unions and the work they do representing their members. We have a good track record in employee relations such as collective agreement of single status work. The Council, via participation in and observance of nationally negotiated conditions is committed to the principle and practice of collective bargaining. In these times of unprecedented change, this Council currently reaps the benefits and economies of collective bargaining through regular consultation and negotiation with representative bodies. The draft contents of the Bill are such that collective bargaining arrangements, efficiencies and the real savings that these practice offer to increasingly scarce management resources, are likely to be undermined if approved in their current form. Moreover, the Council’s Fair Employment Charter includes a direct commitment to supporting, engaging and working with our Trade Unions to minimise the causes and impact of potential disputes. The Bill fundamentally undermines and is at odds with what, for this Council, is a constitutionally approved commitment to joint working with our recognised Trade Unions.

Implications of the Bill for Oldham Council

Proposed Voting Thresholds This provision is at odds with elections in local government, for police and crime commissioners, and in European or Westminster elections where no such thresholds apply. The introduction of thresholds will likely encourage the unions to increase the push on returning ballot papers giving them a greater bargaining position where turn out meets the threshold. Moreover, this should be weighed against the backdrop that the north-west has a traditionally higher ‘yes’ vote for strike action than elsewhere in the country and in recent times that the majority of returns in favour of strike action has been significantly higher than the proposed requirement.

No ‘e-voting or balloting’ Continuing to deny the e-vote or ballot is undemocratic, manipulative and diametrically opposed to a modern day approach. It is safe and secure and very many membership organisations use e voting or balloting. A recent Speaker’s Commission for Parliament recommended secure e voting for all voters. This constraint also mitigates against what would otherwise be a true ballot turnout and therefore full democratic participation. It imposes the funding of expensive and inconvenient postal ballots from Trade Union subscriptions which are already burdensome for the lowest paid members.

Tackling intimidation of non-striking workers There are already legislative protections in place against intimidation of non-striking workers. This directly begs the question whether further legislation is needed and whether the bureaucracy of requiring trade unions to do such as notify the police of picket details is justifiable at a time of significant budget cuts and stretched resources for them also.

Introduction of a transparent opt-in process for the political fund element of Trade Union subscriptions As above, Trade Unions already have measures which give members the option of paying a political levy or of opting out. This proposal is therefore an unnecessary provision and is not in any event similarly mirrored in the regulations relating to the contributions of wealthy organisations and individuals to such as the Conservative party. 130 Trade Union Bill: Written evidence

Introduction of 4 month time limits on a mandate following a ballot for industrial action The proposal for a ‘shelf life’ for ballots will likely intensify disputes from the onset as the Trade Unions attempt to settle disputes without re-balloting; this in turn will create increased service disruption for the wider public and/or increased costs to the public purse.

Proposed changes to the role of the Certification Officer (CO) This would require Unions to include new types of information on industrial action ballots and exceptionally to provide what is currently private information to the CO both of which will increase existing Trade Union costs. In addition to the impact on member subscription rates, these new powers could expose employees as Trade Union members and increase the possibility of ‘black listing’ or victimisation. In its’ fair Employment Charter, Oldham Council expressly supports the Trade Union movement, encourages Trade Union membership and the proposal is in direct contravention of this Council’s constitutionally held belief.

Extension of existing transparency requirements relating to Trade Union facilities There are already provisions around publication of information relating to the publication of Facilities time. These are covered by the recently introduced Local Government Transparency Regulations. The requirement as it stands already enables authorities to benchmark and ensure both proportionality and VfM from Trade Union/ employer joint working. Extension of these requirements will thus create a new and ongoing bureaucracy whilst potential limits on Facilities time and costs will also undermine collective bargaining and constructive employee relations which, through their very existence, work to avoid costly disputes and industrial action.

The intention to abolish check-off This Council currently undertakes a check-off or DOCAS arrangement in that Union members can pay for membership through payroll. The amendment to the proposed Bill, announced on 6 August 2015, includes that check off will be abolished in the public sector. Currently many public sector workers who are Union members have their subscriptions taken directly from their salary. The Government rationale that this provision will reduce the administrative burden on employers and give employees greater control over subscriptions is misplaced. The reality is that this Council, as other public sector employers, employers charge for check off and, in Oldham’s case, this will result in a costly contract claim for loss of income from our strategic partner and provider of payroll transactional services. Also importantly, without the convenience of check-off, Trade Union membership is likely to decline substantially again impacting on the ability of both management and staff sides to participate in meaningful collective bargaining.

Potentially lifting the ban on agency workers during strike action The initial Conservative manifesto proposals mentioned the potential for lifting the ban on employers using agency workers to cover striking employees. If the Government seeks repeal of the relevant provision (currently contained within Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003), the effect would be significant because, if utilised by the Council, the impact of strike action on front line public services would be severely limited or even negated. The right to strike and protest are fundamental rights which should be respected in a free and democratic society and these proposals simply add to the disturbing trend to erode civil liberties and inhibit the right to speak out or protest against the Government.

In Summary This Council will take further steps to set out our position and oppose this Bill via a full Council Motion and making representations to the Secretary of State for Business, Innovation and Skills. This Council will also request to our local MPs similarly to oppose the Bill and use all means available during the Committee stage of the Bill to prevent it from being enacted in its current form. October 2015

Written evidence submitted by Derbyshire County Council (TUB 60) Derbyshire County Council supports recognised trade union membership and the principle of joint consultation/negotiation and collective bargaining. The Council recognises the importance of effective engagement with the workforce (36,000 – appointments – 16,000 excluding schools) and acknowledges the contribution that this has made to the effective working of the Council during a very difficult 5 year period of austerity and financial constraints targeted at the public sector. The Council is conscious that a challenging employee relations agenda including; substantial budget cuts and staff reductions, zero national pay awards, single status implementation (including introduction of job evaluation and the standardisation of terms and conditions), equal pay claims, the Government’s Academisation programme, etc, have been managed / resolved without major industrial relations complications or action. The Council is also conscious that it incurs relatively low levels of collective grievance and disputes that is of benefit to the maintenance of high quality, effective and essential services and avoids unnecessary distraction. Trade Union Bill: Written evidence 131

The Council is therefore of the view that the measures proposed within the current Bill are not justified or proportionate to the issues they are designed to address. In managing responses to the very occasional occurrences of national strike action the Council has not had cause to engage agencies to cover essential services (exemptions being locally agreed with the trade unions) and is conscious that picket lines have been managed in a peaceful and respectful manner with no significant incidents being reported. The Council feels that the current levels of paid time-off for TU stewards which equate to less than £1 per month per appointment across the workforce do represent a cost effective investment in the Authority’s employee relations machinery and have proved invaluable in managing the relationship between employer and employee and have enabled collaborative working. On the question of TU membership check-off the Council does currently operate a deductions at source (DOCAS) membership system on behalf of the recognised TU’s on the basis of a 2.5% commission of subscription values collected. The very limited interventions required to administer the system mean that in the very worst case it is a cost neutral exercise for the Council. The system also serves to further engender positive relationships between the Council and TU’s, making it relatively easy for employees to join one of the recognised TU’s which is encouraged and viewed to be of general benefit. October 2015

Written evidence submitted by Derby City Council (TUB 61) 1. Derby City Council notes the significant changes to Trade Union activities as part of the draft Trade Union Bill (introduced on 15 July 2015). The Council’s understanding is that these changes will include: —— measures which will require employers to promote transparency and public scrutiny of facility time —— regulations which may limit the paid time off for facility time take by the employer’s trade union representative to a percentage of the representative’s working time —— proposed changes to balloting laws —— permitting the use of agency workers to cover striking staff —— increasing the minimum notice of strike action to two weeks —— voting papers to identify the dispute and duration of proposed industrial action —— a ballot mandate that expires after four months —— pickets to be supervised by a named official in an attempt to tackle intimidation —— new investigatory powers and sanctions to be made available to the Certification Officer —— ending the current check-off system for collecting union subscriptions direct from salary. 2. Earlier this year, Derby City Council introduced an Employment Charter. As part of this, the Council “actively supports Trade Union membership and recognises them for collective bargaining purposes”. Derby City Council is fully committed to our Employment Charter and would not wish for any elements of the proposed Bill to affect the positive working relationship that we have with our Trade Union colleagues. 3. At the full council meeting on 15th September 2015, Derby City Council resolved: Council rejects the Government’s repeated attempts to undermine public sector employer/employee relations via the underhand mechanisms contained within the Trade Union Bill.Council notes that the Trade Union Bill includes measures to prevent public sector employers deducting union subscriptions from the payroll and seeks to control the amount of money public bodies can invest in collective bargaining and representation in the workplace. Perhaps most shockingly, the Government is planning to take powers that will allow Ministers to revise contracts of employment and collective agreements that have been negotiated between public authorities, their staff and unions. Council therefore moves that the Leader of the Council and the Cabinet Member for Jobs and Fair Employment write to the government opposing these draconian measures and explaining the invaluable role of trade unions in the public sector.

Specific concerns prompting the motion… —— The proposed measures in the Bill include: placing a range of additional administrative burdens on unions; massively limiting the democratic right to strike; allowing agency workers to be used to break strikes; and reducing the right of employers in the public sector to agree appropriate time off for union reps to represent their members. —— This Bill is contrary to the principle of decent jobs and fair pay and goes against the partnership approach that is a feature of industrial relations in much of the public sector. Many individuals and organisations have expressed deep concern. —— The director of HR at one of the biggest hospitals in the UK is worried about it, Leeds Council, Renfrewshire Council, and every single Scottish council are opposed to it, and even the Government’s own watchdog the Regulatory Policy Committee deems it “not fit for purpose.” —— The Bill is extensive and is likely to have a variety of negative impacts on industrial relations. 132 Trade Union Bill: Written evidence

Facility Time: Time off for union reps to support members… —— Facility time allows trained trade union representatives to spend time supporting members with individual problems, working with managers to head–off possible disputes, making workplaces safer and promoting learning opportunities, all of which benefit both the employer and the employee. —— This Bill places additional burdens on public sector employers by requiring you to report on how much facility time you have agreed with unions. The Bill also contains a reserve power that would allow a Minister to cap arbitrarily the level of facility time that you are permitted to agree. This could be done at anytime, without a debate in Parliament, and without any reference to your views as the employer or local circumstances. —— Derby City Council believes that good relationships between employers and workers are built on collectively negotiated agreements that match the needs of the workforce to the needs of the employer. Agreed time-off for union duties is an investment made by the employer and the union in good industrial relations arrangements. It is simply unreasonable that the Government plans to disrupt these relationships, which play an essential role in maintaining the good quality public services that exist here.

Check-off: Payroll deductions for union subscriptions —— The Bill allows the Government to outlaw the use of Check-off or Deduction of Contributions at Source (DOCAS) systems for trade union subscriptions which are currently in operation across much of the public sector. Similar to the case of facility time, this will be a decision taken by the Government without reference to local circumstances or the views of public sector employers or workers. —— Good industrial relations mean close relationships between unions and employers for the benefit of union members and other workers. It is right that employees should be able to ask their employer to deduct their union dues at source. It is easy, efficient and very cheap to administer, and creates a transparent relationship between the employer and the union. —— Payroll deductions are used in a variety of ways by employers, with the consent of their employees, and can include deductions for charitable giving, pension contributions and bike loans. At present the Government is proposing only to prevent union subscriptions being paid through the payroll. Their justification for this is the cost of administering check-off. Given that many other deductions from source are also being made for employees and that these pay-roll systems are already in place, it seems unlikely that any significant saving will be achieved through the removal of check-off. —— Derby City Council believes that these issues are serious, not simply due to the disruptive nature of the changes to agreed ways of working, but due to the anti-democratic nature of applying from Central Government a one size fits all approach to industrial relations. It is also without precedence that the UK Government would seek to intervene in the internal running of payroll systems or seek to cut across locally negotiated agreements. October 2015