Blacklisting of Trade Unionists: RMT response to the BIS Consultation on Revised Draft Regulations

Introduction

The National Union of Rail, Maritime and Transport Workers (RMT) welcomes the opportunity to respond to the Consultation on Revised Draft Regulations on the Blacklisting of Trade Unionists.

The RMT is the largest of the rail unions and organises 80,000 members across all sectors of the transport industry. We negotiate on behalf of our members with some 150 employers.

Question 1

We propose that in the light of the activities undertaken by The Consulting Association, suitably drafted regulations under Section 3 of the Employment Relations Act 1999 should be implemented? Do you agree with this approach?

The RMT agrees with the TUC that there is an urgent need to implement new regulations under Section 3 of the Employment Relations Act 1999.

The example of The Consulting Association clearly demonstrates that blacklisting is an on-going problem and needs to be adequately legislated against as soon as possible. The RMT notes that the Government is required to introduce effective legislation preventing blacklisting in order to comply with its obligations under Article 11 of the European Convention on Human Rights and ILO Convention 87.

The fine imposed by the Crown Court following the investigation into individuals involved with The Consulting Association activities was totally inadequate given the size of the companies involved and the extent of the blacklisting, and demonstrates the ineffectiveness of existing legal provisions in this area.  The penalty imposed is not a sufficient deterrent and further stronger measures are needed to prevent future similar activities from taking place.

Question 2

Do you have other evidence of trade union blacklisting?

Although this is the first instance in which hard evidence of blacklisting has been found, the RMT wishes to highlight its concerns regarding the extent to which blacklisting may take place outside of the construction industry. The RMT has members working for the rail maintenance divisions of a number of the companies found to be subscribing to and actively using The Consulting Association’s blacklist and notes that The Consulting Association was collectively owned by its subscribers. This indicates that the level of organisation involved in compiling and using the list went far beyond the initial reports of a rogue private investigator’s personal enterprise but rather bore the hallmarks of organised crime.

Question 3

Do the regulations adequately cover all the possible ways, including use of the internet and other electronic media, whereby blacklisting could be undertaken? If not, how could they be improved?  

Subject to comments made elsewhere in this response, the RMT is satisfied that the regulations cover the ways in which blacklisting might be undertaken.

Question 4

Do the regulations adequately deal with blacklists maintained and hosted abroad? If not, how could they be revised?

The RMT is satisfied that the regulations deal adequately with blacklists maintained and hosted abroad.

Question 5

Do you support the way the regulations clarify the meaning of a prohibited list?  If not, how should a prohibited list be defined?

The RMT supports the response made by the TUC regarding clarifying the meaning of a prohibited list.

It is vitally important that a list with only one name be recognised as prohibited to allow for the closer monitoring of employee vetting agencies who may be tempted to provide information on trade union activity or activities associated with a trade union uncovered through reference checking.

Question 6

Do you support the drafting of the exemptions and should others be exempted?

The RMT supports the TUC response with regard to exemptions.

Question 7

Do you support the Government’s view that enforcement should take place via the civil law? If not, what approach would you favour?

The RMT is in full agreement with the TUC in calling for enforcement to take place via both civil and criminal law. We believe that the practice of blacklisting is one which should be stamped out with the strongest possible penalties including significant minimum fines, minimum prison sentences and the recovery of assets gained through blacklisting activities. We also believe that cases similar to that of The Consulting Association should be treated as very serious, organised criminal activity and carry similar penalties to other serious organised crime.

Question 8

Do you agree with the approach taken by the regulations regarding the burden of proof? If not, what approach would you favour?

The RMT supports the TUC response regarding the burden of proof being transferred to the respondent.

Question 9

Do you agree with the approach taken by the regulations regarding the time limits for making applications to the employment tribunal?  If not, what approach would you favour?

The RMT agrees with the response by the TUC on this matter and wishes to see the just and equitable test apply rather than the reasonably practicable test. We also believe that should the operation of a blacklist only come to light months or years after an individual has been affected it is essential for the regulations to leave scope for those individuals to pursue their claim to employment tribunals in such circumstances.

Question 10

Do you agree with the approach taken by the regulations regarding remedies?  If not, what approach would you favour?

The RMT supports the TUC’s response with regard to remedies. We believe that trade unions should have a means of seeking redress for the violation of the union’s rights to freedom of association and that trade unions should have the opportunity to bring forward claims on behalf of their members due to the collective nature of blacklisting. It is not unreasonable to assume that some individuals who have suffered as a result of blacklisting, may well feel intimidated bringing a claim against the companies who organised to victimise them.

Question 11

Do you have any other views on the way the regulations should be drafted?  Please submit any drafting suggestions if you have them.

The RMT has made relevant comments relating to drafting of the regulations throughout this response.

Question 12

Do you have any comments on the Impact Assessment at Annex 2?

The RMT does not have any comments at this stage on the Impact Assessment.

August 2009