RMT Response to Revised Code of Practice on Industrial Action Ballots Consultation
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The National Union of Rail, Maritime & Transport Workers (RMT) welcomes the opportunity to respond to the Department of Trade and Industry's consultation on the Revised Code of Practice on Industrial Action Ballots and Notice to Employers. The RMT organises over 72,000 workers in all sectors of the transport industry. The industrial, campaigning ethos of the Union and our willingness to use industrial action ballots in furtherance of our cause, has led to a series of prominent High Court challenges and it has been known for employers to undermine industrial action on the basis of legal technicalities.
It was in part a response to the inherent unfairness of balloting legislation demonstrated by the legal reverses suffered by the RMT and other unions, that the Government felt duty bound to address the situation in the Employment Relations Act 2004.
Therefore, there is an overwhelming sense of regret that the changes the Government has made are so modest. They do not satisfy the labour movement's call for fairness and unions will no doubt continue to be taken to court by companies more interested in attacking union strength than settling a legitimate dispute. Most damningly, in a number of key areas that shame the Government, our laws continue to defy Britain's international human rights obligations.
Most of the changes to the Code of Practice are not controversial revisions in the sense that the new elements of the Act are simply transposed. However, Paragraph 16, which states that a union should indicate to an employer where deficiencies in its balloting information lie, is far more onerous than the Act and consequently we believe it must be amended. The RMT does wish to make a number of comments regarding the Code which inevitably convey our frustration with the Employment Relations Act 2004.
Unfairness of the legislation
Although it is outside the terms of reference for this consultation, it is impossible for the RMT not to record its anger and frustration that the much vaunted improvements to the law governing industrial action ballots, have proved very feeble indeed. This Union submitted a full and detailed response to the Government's Review of the Employment Relations Act 1999 and began by considering whether UK workers are fully able to exercise their rights due to them under international law.
Patricia Hewitt, the then Secretary of State for Trade and Industry certainly sounded progressive in her introduction to the Review on the changes that would be made to the legislation on industrial action ballots. This was to be welcomed.
However, the Government failed to legislate accordingly in the Employment Relations Act 2004 and as the law stands there are still onerous requirements upon a trade union if it wishes to ballot its members for industrial action in furtherance of a particular cause.
The positive right to strike should be enshrined in UK law to ensure compatibility with Article 8 of the International Covenant on Economic, Social and Cultural Rights. Practically, this means participation in a lawful strike should not be regarded as a breach of employment contract. If the right to strike was enshrined in this way, it would render the clause for 12 protection weeks unnecessary.
There remain excessive notification demands in the balloting procedures.
We are aware that the TUC has submitted a response to the DTI after consultation with its affiliates and the RMT offers its broad support to Congress's comments on the Consultation Questions. Where relevant the RMT includes its own observations and suggests improvements.
Question 1: What are your overall views on the style, content and approach of the revised Code? Is it broadly acceptable to you?
The revised Code largely retains the style, content and approach of the original text. However, certain sections require amendment to bring the Code into line with the Employment Relations Act 2004 and the draft has erroneously stated that there will be an onus on unions to highlight any deficiencies in the information provided to an employer in an industrial action ballot scenario. More information is provided on these points below.
The RMT has reservations about the effectiveness of the Code of Practice in governing fair practice in industrial action ballots. Unions are generally very diligent in the preparation of ballot notices and figures on members' grades and workplaces are carefully checked. Yet unions have been afforded no protection by the Code when employers challenge the information in court and judicial interpretations (of the law and Code) often reveal more about judges' political outlook, than any 'error' made by a union.
Question 2: What are your views on the proposed revisions to paragraphs 14-18 and 50-51 of the Code, which deal with the new provisions on industrial action notices?
Paragraphs 14 (a) and 50 (a) Listing of grades and locations
RMT uses exactly the same process whether it is preparing information for either an industrial action ballot or industrial action on the numbers, grades and locations of members for the employer. Sections 226A and 234A are identical and there is a strong argument for the wording in Paragraphs 14 and 50 to be the same, rather than the use of 'workers concerned' in Paragraph 14 and 'affected employees' in Paragraph 50 (this also applies in Paragraphs 14 (b) and 50 (b)).
There are a number of Paragraphs in the Code which should state more explicitly the requirements of the legislation. For instance, Section 22 (2D) ERA 2004 makes clear that the information provided on members in the ballot notice is that information in the possession of the union at the time of the ballot notice. This should be incorporated into Paragraph 14 (and similarly Paragraph 50). A union would not be required to supply information coming into its possession during the ballot and if members voted in favour of action, any additional detail would be incorporated into notice of action.
Secondly, the Code should be explicit that information on members' grades and locations held in document form by a union is that held by an officer or employee of the union rather than for example, local representatives.
The RMT supports the TUC suggestion that employers should be prohibited from arguing that a union has listed an incorrect workplace for its members when their previous workplace closed but moved only a short distance.
The great ease with which injunctions can be granted against unions is well known and despite the slight liberalisation contained in the Act and promoted in the Code, the RMT will continue to take the greatest of care in the preparation of ballot notices. The extra time spent carefully checking and re-checking our records unfairly inhibits the Union's cause and damages our momentum in a dispute.
The RMT believes that the Act should be amended so that a union need only inform an employer that it is conducting a ballot for industrial action/taking strike action without providing any additional detail on numbers, grades or locations. This is fair, justifiable and would relieve much of the unnecessary legal burden on unions and go some way to complying with the ILO Conventions.
Paragraphs 14 (b) and 50 (b) Listing of grades and locations when check-off arrangements exist
We are aware that the TUC has recommended a form of words be inserted in the above which clarify where "check-off" arrangements are in existence.
The RMT questions why, if a company and union already have a check-off arrangement (and therefore the company will be aware of exactly who is in the union), a union still has to provide grade and location information. This really appears to be no improvement for trade unions at all.
Paragraph 14 (b) and Paragraph 50 (b) Deletion of 'making plans'
The RMT welcomes the deletion of providing information so as to 'help the employer make plans'. From our members' point of view, an employer 'making plans' is actually determining a strategy for breaking the strike and taking on the Union, when instead it should be focusing on how to resolve the dispute.
Paragraph 15 Categorisation of workers
The suggestion of the TUC that in respect of Paragraph 15 it should be noted that trade unions may not have information relating to members grades of pay rates, seems sensible. In such cases the union cannot be expected to provide such information and the final sentence should read "the availability of data to the union is the deciding factor in determining the union's choice."
Paragraph 16 Revealing deficiencies of trade union information
It is important to note the guiding spirit behind the changes to the Act (and hence the Code) was one of freeing trades unions from some of the administrative and legal burdens when balloting members. For that reason it would be wholly inappropriate for the unions to have to offer further evidence of the strength of their membership records by indicating where potential deficiencies lie. In the experience of the RMT, the readiness of companies to frustrate planned industrial action on a legal technicality means that if a union was to highlight potential deficiencies, an employer would eagerly grasp this information as further opportunity to thwart the union and its members in the courts.
Section 22 (4) of the Employment Relations Act 2004 already requires the information provided by a trade union to be as accurate as possible and Section 22 (3) requires a union to 'provide an explanation for how the figures were arrived at'. There is no requirement in the legislation forcing a union to reveal deficiencies and therefore Paragraph 16 is more onerous than the Act. As the TUC states, rather than the onus being on the union to demonstrate why information contained in the notice is flawed, the legislation actually places the onus an employer making a challenge to demonstrate why the statutory requirements have not been met.
Question 3: What are your views on the other proposed revisions to the Code?
Preamble, paragraph 4 Definitions used in the Code of Practice
The RMT agrees with the comment of the TUC that the wording in the preamble, paragraph 4 is inaccurate. It appears to be lifted from the statutory recognition scheme and the definition of 'workplace' and 'working days' are not consistent with the 1992 Act.
Paragraph 32 Increase in protection to 12 weeks
The RMT notes the change in Paragraph 32 extending the protection from dismissal for striking workers to 12 weeks.
In practice, an arbitrary time-limit for protection has only served to inflame already tense industrial relations situations during disputes, when bullying managers have approached striking workers with veiled threats that the company is fully aware of the legal position and they will be held to account after protected period. Neither does the protection prevent employers from penalising employees involved in industrial action in other ways including refusing the release of reps for TUC training courses and banning overtime.
A positive right to strike should be enshrined in law. Participating in a lawful strike would not then be regarded as a breach of an employment contract and no 'protected period' would be needed.
Question 4: Do you have any views on other parts of the Code which remain unchanged?
Paragraph 7, Balloting by more than one union
The Code erroneously implies that it is a legal requirement where more than one trade union is present at a company and both wish to ballot members for industrial action, that the ballots and subsequent action must be co-ordinated. Although this is often desirable, practical considerations mean that it is not always possible. Paragraph 7 is therefore misleading and arguably, should be deleted.
Paragraph 18, Employer doubts about a union's information
The TUC has proposed that the Code should stipulate that an employer with any doubts about the veracity of the information a union has supplied, should make those concerns known to the union well in advance of the first day of the ballot. Congress has proposed that this be inserted into Paragraph 18. This is a very reasonable suggestion and one that the RMT would certainly support given past experience.
During a dispute in 2001, on the day when the ballot result was due to be announced, London Underground (LU) informed the RMT that the information provided was deficient, despite the Employer receiving the details four weeks before. Therefore LU deliberately let the union proceed with an expensive ballot, knowing that it would mount a challenge if the outcome was negative.
Finally, the TUC makes a number of general comments about areas of the Code which remain unchanged and we would concur with its suggestion on aggregated ballots and the need for deletion of Paragraph 36 which offers unnecessary guidance to unions on communication with members during a ballot.
The RMT has suggested a number of amendments to the Revised Code of Practice to ensure proper compliance with the changes on industrial action ballots and notices introduced by the Employment Relations Act 2004. Most of the changes are relatively minor; but of major concern to the labour movement is the proposal to include an onus on trade unions to reveal deficiencies in information provided to employers in industrial action notices. This is not required by the legislation and is contrary to the spirit of the Act which sought to alleviate some of the pressure from trade unions in industrial action situations.
Despite offering best practice guidance on industrial action ballots and even incorporating the changes outlined above, the Code cannot prevent a political interpretation of the law such as the disgraceful Midland Mainline v. NURMT decision in May 2001 when the presiding Judge ruled that the Union, by not contacting individual members at the Company prior to the ballot to determine whether their grade or home address had recently changed, did not abide by Paragraph 38 of the Code of Practice and have 'appropriate checking systems' in place.
As the Union has made quite clear throughout this document, amending the Code of Practice will not deal with the fundamental failure of the Employment Relations Act 2004 to provide for the full rights that UK workers are entitled to enjoy under international law. Until that situation changes unions will continue to suffer wholly unnecessary and burdensome obstacles to the conduct of free and fair industrial action ballots.