A nasty Bill turned into a nasty Act

06 May 2016

By Carolyn Jones, Director, Institute of Employment Rights

The Trade Union Bill has now passed through its Parliamentary stages, receiving Royal Assent on Wednesday 04 May – ironically, the 90th anniversary of the 1926 General Strike.

The Act will appear in the Queen’s speech on 18 May, with implementation dates set at the convenience of the Government.

It’s true the Act is a shadow of the Bill first proposed, but dangerous details hide in those shadows. Rather than congratulate ourselves on what has been achieved, we must shine a light on the dangers ahead, exposing the intentions behind the Act and building on the growing opposition.

To do otherwise would be to do a disservice to generations ahead. It’s our kids and their kids who will suffer if the power of trade unions to organise, to represent and to defend living standards are choked off by this anti-working class Act.

As expected, some of the more bizarre and extreme proposals in the original Bill have been jettisoned. Unenforceable attempts to monitor and control the use of social media during disputes have been dumped as have plans to make everyone on a picket line show their personal data to the police, employers or anyone else who asks to see it.

But the Act still demands the appointment of picket supervisors who must make themselves known to police and employers and carry a letter of authorisation. Breaches of any of the restrictions will in future attract criminal charges. Similar legislation in Spain has been used to threaten pickets with imprisonment – threats so far resisted by the Spanish trade unions.

On ballots, ancillary workers associated with important public services are no longer captured by the double thresholds (but private sector workers involved in pubic services could still be caught by the net) and the wording on the ballot paper is slightly less prescriptive but still extremely vulnerable to injunction.

But the ‘flagship’ aspect and main purpose of this Act remains in place. The imposition of a 50% turnout and an additional 40% support for workers in health, education, fire, transport and border security, make it near impossible for those workers currently leading the resistance against privatisation and cuts to take industrial action. According to an IER report, millions of workers will be denied the right to take action under these new thresholds.

These restrictions bring the UK once again into conflict with international laws. In February 2016 the Committee of Experts told the UK that education and transport should not be included in the government’s list of “important services”. Similarly, the ILO has reasserted that when setting ballot thresholds ‘account should only be taken of votes cast’.

And yet the Government pushed on. In response, unions quite rightly demanded the introduction of e-balloting to improve ballot turnouts and help unions reach the high thresholds. In an attempt to save the Bill from outright opposition, an amendment to review e-balloting and roll out a test programme was inserted by the Lords. But the Government has rejected the roll-out promise and instead kicked the e-ballot proposal into the long grass of an independent review.

And even when these new hurdles to strikes are navigated successfully, proposals to bus in agency workers – often vulnerable people coerced into taking positions under new Universal Credit rules – still lurk in the background.

On political funds the demand that members opt in rather than opt out will be delayed for 12 month and will only apply to new members. But the opt-in system with all its threats is now law and threatens to undermine the political voice of trade unions. And the bureaucratic nonsense of unions having to declare all political expenditure over £2,000 a year stands in complete contrast to the privacy and anonymity given to off-shore funds and off-shore Tory funders. The election of a Labour Government committed to removing this nasty Act grows ever more important if the political voice of the next generation of trade unionists is to be heard.

Proposals to ban check-off arrangements in the public sector have been dropped but only if the union wins the agreement of the employer and pays the admin costs. Fine where that works – but a constant threat to the negotiating position of unions where it doesn’t.

The idea of giving concessions where agreement can be reached permeates much of the final Act. So the Bill proposed doubling the notice period that unions have to give employers on a ballot from 7 to 14 days. That period has now been reduced back to 7 – but only where agreement can be reached.

Similarly, the validity of a ballot was reduced to 3 months in the Bill, extended to 6 months in the Act or 9 months, but again only where agreement can be reached.

If the Government were really supportive of industrial relations being conducted by agreement, they would have introduced statutory procedures to encourage collective bargaining. Instead they have put in place yet more hurdles for unions to jump and created a statutory safety net for employers to fall back on should relations at work deteriorate still further.

On the freedom of unions to organise at work, the Lords removed the proposal to cap facility time. The Government however reinstated it, promising to research and consult on the cost of facility time before returning to the same attack but with more detail! Using public money to undertake costly research to use against public sector workers is perverse, as is the imposition of the proposals on devolved governments.

And the backdrop to this malevolent Act is the newly empowered state surveillance officer. The new powers awarded to the Certification Officer remain much as they were in the original Bill. The CO has powers to initiate complaints, undertake inspections including recording names, determine outcomes and impose fines of between £200 and £20,000 on any national, regional or local branch on issues relating to political fund procedures and expenditure, internal elections, ballots and much more.

It’s true the government inserted a clause saying the CO would not be ‘subject to directions of any kind from any Minister of the Crown as to the manner in which he is to exercise his functions’. But it’s not the manner in which the CO does the work that is so objectionable. It is the nature of the work he undertakes that raises concerns and it is the nature of the work that is set by Ministers.

This was a nasty Bill that’s turned into a nasty Act. Parliamentary activity has delivered what it can in the face of a government determined to silence political opposition, cull collective action, criminalise solidarity on the picket line and strangle unions with bureaucratic red tape controlled by a state surveillance officer.

If this Act, like the 1971 Act before it is to be defeated, the immediate battle will be extra-parliamentary, led by workers responding to attacks on their standard of living and working conditions. Those battles are already being fought in the UK, Spain and France and will continue to grow as current economic policies fail to deliver anything other than growing inequality and lack of opportunity.

In the longer term, Jeremy Corbyn and his team need to be given the space and time to develop alternative economic and industrial policies. Such policies will expose the political nature of Tory attacks and show how another narrative and political agenda is possible. To that end, IER are working on a Manifesto for Labour Law which places trade unions back at the heart of economic, industrial and social regeneration.

In the meantime, the labour movement must do all it collectively can to educate, agitate and organise against this undemocratic, unnecessary and unfair Trade Union Act.