UPDATE: Campaign for Trade Union Freedom – Kill the Bill

Circular No: NP/ 135/15
30th July 2015

                                      UPDATE:  Campaign for Trade Union Freedom – Kill the Bill
Dear Colleague,

 Further to my recent Circular NP/ 127/15/MC.  Last night saw the launch of  Trade Union Freedom campaign to kill the Trade Union Bill, published on the 20th July 2015, which goes even further than the Tory manifesto and the summary in the Queen’s Speech. It’s important that you are aware of the detail and important to note that the Tories will add more to it so it is imperative that we unite together to defeat this odious bill before it becomes an act.

The Bill attacks trade unions and their members on several fronts, with more to come in the form of three consultations announced alongside the Bill.

All industrial action balloting: at least 50% of those entitled to vote – Clause 2
Unions will face restrictions before members who have voted by a majority for industrial action can take legally protected action.

Under the new provisions a ballot will require not just a majority of those voting, but a majority of those entitled to vote. This will be achieved by inserting a requirement that ‘at least 50% of those who were entitled to vote in the ballot did so’.  The impact is that a failure to vote will effectively be treated as a ‘No’ vote.

Public Service industrial action ballots: at least a 40% ‘yes’ vote – Clause 3
Additional balloting restrictions are imposed in ‘important public services’, where at least 40% of those entitled to vote must have voted in favour of the industrial action: on a 50% turnout a majority must vote ‘Yes’ with 40% of those entitled to vote voting in favour.

‘Important public services’ is wider than the ‘essential public services’ referred to in the manifesto and Queen’s Speech.

These services are defined as ‘health services’, ‘education of those aged under 17’, ‘fire services’, ‘transport services’, ‘border security’ and ‘the decommissioning of nuclear installations and management of radioactive waste and spent fuel’.
Where a ‘majority of those who were entitled to vote in the ballot are normally engaged in’ the provision of ‘important public services’ or ‘activities that are ancillary to the provision of’ those services the additional balloting requirement also applies So, for example, not only would it apply to healthcare workers, but arguably to everyone working in or associated with the health service including where they are provided by a private company or by a contractor. ‘Transport services’ equally is not confined to public transport, but could apply in principle to any form of transport of whatever type, whether passenger service or not.

Exactly which functions and occupations are to be included within the additional requirement are considered in a separate consultation document. That consultation envisages the prospect of a group of workers to be balloted which includes some who are covered by the additional requirement and some who are not. These are swingeing restrictions going far beyond any generally accepted international legal definition of essential services. They breach international labour standards.

New ballot paper requirements – Clause 4
The ballot paper will be required to include ‘a reasonably detailed indication of the matters in issue in the trade dispute’, ‘the type or types of industrial action’ contemplated and ‘the period or periods within which’ ‘action is expected to take place’. The requirement not just to describe the trade dispute, but to give ‘a reasonably detailed indication of the matters in issue’ is a clear invitation to an employer to argue in court that the ‘indication’ was not sufficiently detailed, or was not an accurate indication of the matters in issue. Similarly, for industrial action short of a strike, requiring a description of ‘the types of industrial action’ goes far further than specifying whether it is a strike or action short of a strike. This encourages legal challenges:  was it accurate to call the action ‘an overtime ban’ or ‘a work to rule’? The requirement to specify the ‘period or periods’ when the action is expected to take place before the union has even balloted its members (when the anticipated dates of proposed action will be, at the very least, over a month away) is entirely unreasonable and is obviously intended to give the employer maximum time to prepare (see agency workers below) and also to pave the way for a future challenge should the action not take place on the dates specified.

Information on the result – Clause 5
The union will as before be required to give information to both members and employers on the result but under these proposals there will be a requirement to specify whether the ballot thresholds have been satisfied. The requirement is not to give details of the number of ballot papers sent out, but the number of those ‘entitled to vote’ and whether or not the number of votes cast is at least 50% of those ‘entitled to vote’ (and, in the case of ‘important public services’, whether the additional 40% ‘yes’ vote requirement has been satisfied).This is clearly intended to encourage employers to challenge on the basis that more people should have been accorded the entitlement to vote, and that the 50% threshold, and/or the additional requirement in ‘important public services’ have not been met.

Timing and duration of industrial action – Clauses 7 and 8
If the union manages to satisfy all of this, and members vote in favour of action in the requisite numbers, the union will be required to give 14 days’ notice (not 7 as now) before action can start and will have to re-ballot if the action continues for more than four months. Interestingly, the requirement to commence action within 28 days of the result of the ballot appears to have been deleted.

Reporting on industrial action in annual return to the Certification Officer (CO) – Clause 6
Unions will be required to publish details of all industrial action and ballots in their annual return to the Certification Officer, for public inspection. This includes, for each industrial dispute, providing the new more detailed information to be given to members after the ballot as to the result. In any other sphere the government would attack this type of bureaucracy as ‘red tape’ that should be swept away. Overall this is designed to make it difficult, if not impossible, for a union to comply, to deter members from voting in favour of action and to give employers the maximum opportunity for legal challenge.

Picketing – Clause 9
Trade unions organising picketing, or encouraging members to take part in picketing, will be required to appoint a ‘picket supervisor’ who is an ‘official or other member of the union’ who is ‘familiar with any provisions’ of the statutory Code of Practice.

The union is placed under an obligation to notify the police who the picket supervisor is, how they can be contacted and where the picketing is taking place, to provide the picket supervisor with a letter to produce to the police and ‘any other person who reasonably asks to see it’ and the picket supervisor ‘must’ ‘wear a badge, armband or other item’ to ‘readily identify’ them. Not only is this a gross invasion of civil liberty, it is a massive waste of police time and resources at a time when police services are being cut and a further politicisation of the role of the police in industrial disputes.  These measures will have the effect of inflaming the situation on a picket line and encouraging confrontation, including with others who demand to see the picket supervisor’s letter of authority.

 ‘Tackling Intimidation of non-striking workers’ - Consultation
In the consultation the government proposes measures including requiring unions to publish plans in relation to picketing and protests. The ‘plans’ include, for example what is intended to be said on social media. The government also contemplates local authorities using Community Protection Notices against protesters.

Political Fund – Clause 10
Any use of money or resources on political campaigning must be funded from a union’s political fund and not from its general fund. Thus, unions can only carry out such activity if they have a political fund which has been established following a legally valid ballot in favour of the fund. There must be a re-ballot every 10 years. Unions may only take or receive contributions to the political fund from those members who have not objected in writing to contributing to the fund. Put another way, members may opt out of the political fund.

This is not, as is sometimes misreported, confined to donations to political parties, but applies to all political activity, including for example encouraging members to sign up to the electoral register.  The wide definition of political activity in the legislation means that we could not carry out a lot of our campaigning activities without a political fund. Unions will now only be able to take or receive contributions to the political fund from members who have actively opted in to the fund by giving notice in writing.

All unions with political funds will have three months from the date the Act becomes law to sign up members to the political fund. This will have to be a notice in writing delivered by the member in person or by post. It cannot be sent electronically. The opt-in will only last for 5 years and must be renewed by the member every 5 years.

Political Fund: annual return – Clause 11
Unions will be required to provide in their annual return details of all political expenditure, giving details over £2000, including who it was paid to and the nature of it. This is designed to prevent unions from spending money on campaigning as well as a nakedly political attack on opposition to the Tory government and the funding of the Labour Party.  

Facility Time – Clause 12
The Bill imposes requirements on public authorities to publish minutely detailed data on union officials employed by them who are carrying out union activities or duties.
The requirement will apply to public authorities, but the government gives itself the power to extend that definition to organisations with ‘functions of a public nature funded wholly or partly from public funds’.

Employers will be required to publish information on the number of employees who have any facility time, how much is spent on facility time, the percentage of their total pay bill spent on facility time, what type of activities or duties were carried out, as well as giving details of what physical facilities (such as offices, equipment etc.) are provided.

When this will be required to be published and the form in which it is to be published will be detailed in regulations that can be imposed by a Minister at any time
The trade union officials caught by this provision include learning representatives and safety representatives (appointed under regulations made by s2 (4) of the Health and Safety at Work etc. Act 1974)

The government also gives itself the power to impose regulations which would restrict the amount of facility time employers can give and would override any contractual or collective agreements between the employer and the union. This imposes ridiculously detailed requirements on public employers (and potentially bodies such as museums or theatres) adding further to their costs and tying them up in red tape. The intention is clearly to deter public employers from allowing facility time, even where it is agreed, with the further aim of preventing union officials from having the time and resources to represent their members.  It undermines both advancement through learning and safety in the workplace. This is open state interference in freedom of association and arrangements freely and lawfully agreed between employers and unions.

Certification Officer - Clauses 14, 15, 16 and 17
The Bill seeks to transform the role of the Certification Officer from a neutral adjudicator on union law and rules into an inspector, an investigator, a judge and an enforcer.

The Certification Officer would be empowered to investigate all manner of internal union issues, whether or not any member has complained, including membership registers, union elections, political fund rules and ballots, ballots on mergers and the new reporting obligations on industrial action and political expenditure.
No longer is it necessary for there to be a complaint by any member. This is a free-standing power. Furthermore, the Certification Officer is given powers to require the union to hand over documents and appoint investigators to inspect documents, question union staff or officers, copy documents and produce reports. The Certification Officer is given powers to impose financial penalties of up to £20,000 for a breach and to impose enforcement orders requiring unions to take action. What is more, those enforcement orders may be enforced not only by the Certification Officer, but by any member of the union. This extended role is to be funded by the unions themselves, with a requirement to pay a levy to meet the cost of the Certification Officer and all support provided to his office, including these extensive, and potentially hugely expensive, investigatory powers.

Hiring agency staff during strike action – consultation
In another separate consultation, the government affirms its intention to remove the prohibition on employment agencies providing workers to employers during industrial action. This is yet another flagrant violation of the standards required by international law. The Bill contains the usual Ministerial statement that it complies with rights under the European Convention on Human Rights. That must be seriously questioned, despite the use of affirmative resolution procedures in an attempt to inoculate the Bill against challenge.

 I would be grateful if you could bring the contents of this Circular to the attention of your Branch members and spread the message widely.  I urge you to support the Campaign. More information will be circulated as it becomes available as to future events and action.

Yours sincerely
Mick Cash
General Secretary