New clause 4 - Unofficial industrial action
Employment Relations Bill
10:30 am

Mr Brian Cotter (Shadow Minister (Trade & Industry), Trade & Industry; Weston-Super-Mare, Liberal Democrat)

I beg to move, That the clause be read a Second time.

The new clause stands in my name and that of my hon. Friend the Member for Gordon (Malcolm Bruce), who cannot be here today. Earlier, the Minister said that the employment relations environment was pretty good, and obviously we very much welcome that. I hope that, in that spirit, hon. Members on both sides of the Committee will welcome the fact that my colleague and I tabled the new clause to rehearse a concern that is on the horizon or,

perhaps, closer than the horizon. We raise the issue in the spirit of ensuring that employment relations continue to be based in a good way and to be good.

Part 2 of the Bill relates to industrial action and is essentially about clarifying the requirements for conducting ballots and issuing notices to employers with regard to official strike action. Part 3 strengthens unfair dismissal protection for striking workers in cases in which they are locked out, as happened in the Friction Dynamics case, to which the Committee has already been referred.

All that is welcome when it comes to clarifying workers' rights and setting out the position of employers. However, one key area that the Bill fails to address is the increasing problem of unofficial strikes. Last week, Royal Mail revealed that it is unlikely to meet its end-of-year targets for delivering letters on time. It is important that post is delivered on time, particularly for small firms receiving cheques. The recent postal action may have a great impact on small firms. Having run a small firm, I know that one can be in a tight situation, just waiting for that cheque to come in to enable one to pay someone else.

There has been much concern about that issue. I asked the Department of Trade and Industry about it, but I believe that the answer stated that there is not enough evidence. Clearly, there is anecdotal evidence that a strike such as that at Royal Mail can have a big impact. That strike was disastrous for the public and businesses, both of which rely on Royal Mail. If a business is delayed in banking a cheque, it can be a big problem. That should be of great concern to us. As I said, I did not get a sufficient answer to my question to the DTI.

Unfortunately, last autumn's strike was not an isolated incident but may be part of a trend. It is worrying that the number of unofficial strikes over the last decade has risen. As Dr. Gregor Gall of the university of Stirling recently pointed out in an editorial letter to The Guardian, while overall strike activity has fallen by around 80 per cent. since 1979, which we all welcome and which is probably the basis of the Minister's comments, overall, unofficial strike activity has fallen by about 40 per cent. Obviously, those figures have not fallen by the same degree. Since 1991, the percentage contributed by unofficial strikes, in terms of strike frequency, has grown—so the proportion of unofficial strikes has grown.

Only when there was a rash of high-profile unofficial strikes at the end of last year was that issue highlighted, although it has been going on for more than a decade. The cycle started in late July 2003 when British Airways check-in staff at Heathrow went on strike to protest against BA's plans to introduce a swipe-card system to record what time staff began and finished work. Not only did that strike affect as many as 100,000 members of the public, but it cost BA £40 million. There was also the postal strike, to which I have referred, and action by fire service personnel. Although the Fire Brigades Union did not publicly condone the strikes by its members, its general secretary, Andy Gilchrist, tried to explain the reasons behind the strike and said that union members were extremely angry at their 7 per cent.

pay rise. That is another example of a wildcat-type strike.

Mr Bill Tynan (Hamilton South, Labour)

Does the hon. Gentleman accept that there are measures in place that can be used when unofficial action takes place? For example, funds can be sequestrated from the union, and members who strike unofficially can be dismissed. What measures does the new clause contain that are not already in place?

Mr Brian Cotter (Shadow Minister (Trade & Industry), Trade & Industry; Weston-Super-Mare, Liberal Democrat)

I thank the hon. Gentleman for that question, to which I will return shortly. There are such measures in place, but, unfortunately—and one of my intentions in tabling the new clause was to highlight this fact—such actions were not necessarily taken during the recent strikes.

In the royal commission chaired by Lord Donovan in 1968, unofficial strikes were described as being mainly sporadic and very short, yet at the same time very effective because they provoke an immediate reaction from the officials or the employers. In addition, only a handful of unofficial strikers have been sacked under the Employment Act 1990, and it is debatable how effective current regulations are. I say again to the Minister and colleagues that they might welcome that the environment for employment relations is very good but the purpose of this new clause is to highlight the concern on the horizon. We have had two or three high-profile unofficial strikes in recent times. It is something with which we need to be concerned, because it can be damaging not just to the general public and to individual firms, but to the whole climate between employers and the trade unions.

Mr Jonathan Djanogly (Huntingdon, Conservative)

While not exactly concurring with the wording of the proposed new clause, there is much sense in it. One of the bizarre facts mentioned by the hon. Member for Weston-super-Mare (Brian Cotter) was that the more powers the unions have received under this Government, the more employee regulations—the weighing down on companies—and the more unofficial industrial actions there have been in recent years.

One of the problems I have with the new clause is that the proposal is for the Secretary of State to be in the driving seat, providing for penalties and so forth. We have a Secretary of State who, during the recent unofficial post strike, sat on the fence and refused consistently to come out and say that the unofficial strikers were wrong. Therefore, I would be highly dubious of giving her the powers to curtail the action.

Mr John Lyons (Strathkelvin and Bearsden, Labour)

Subsection (2A) of the new clause really shifts the emphasis back from trade unionists holding responsibility—a point made by my hon. Friend the Member for Hamilton, South (Mr. Tynan)—to individual members of trade unions being held responsible. That would be a dangerous mistake, because all of us agree that there has been a great change in industrial relations. The partnership is working well. Agreeing to the new clause would reverse some of that.

Under the new clause, first, employees will be held responsible as individuals, not the trade unions—that has been working well in my opinion. Furthermore, it

will need to be decided what penalty to take against an individual who refuses to comply. One of the great lessons of industrial relations in this country, and the Conservative party learned it very quickly in the 1970s, is that it is pointless trying to take action against individuals. One ends up jailing dockers, the country starts coming to a halt and one needs to bring them back out again. The National Industrial Relations Court and other legislation at that time recognised all that. It was a waste of time. No progress could be made at all. It was one of the strengths of the Conservative party at that time that it understood that lesson very quickly and changed the law for that reason.

The new clause would reverse all that and put back the responsibility on the individual. It will fail; it would be a waste of time. One would need to deal very seriously with the matter if someone refused to comply. Under the new clause, industrial relations would worsen, and the record and climate would worsen. Trade unions would be able to say, ''It is all about the individual, it is not about us.'' In law, the trade unions are now held responsible. That should continue. That makes progress. Anything other than that will turn the clock back and worsen industrial relations.

Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)

It goes without saying that I support the comments of my hon. Friend.

New clause 4 concerns the law governing unofficial industrial action, a subject that was raised by the hon. Member for Gordon on Second Reading. I think that the hon. Member for Weston-super-Mare will accept that the new clause is deficient in terms of the powers and penalties. The provision on the penalties is not clear at all. However, I shall put the drafting problems to one side, and try to deal with issues to do with policy presumptions that the hon. Gentleman is trying to develop.

The hon. Gentleman is concerned about the level and nature of such unofficial industrial action. He points to last year's postal strike in London as the main evidence that a pressing problem exists. Occasionally, large or high-profile strikes occur. That is part and parcel of living in an open and liberal democracy. Although any breakdown of industrial relations is to be regretted, the freedom to withdraw one's labour is an important entitlement in any democratic society, and we must all respect that, but are such major strikes, official or unofficial, typical of our industrial relations today? The answer is no.

As I said earlier, the number of stoppages in 2003 was at an all-time low, and records began in 1920. In 2003, the number of working days lost through industrial action was less than 500,000. That is a small fraction of the 7 million days lost annually in the 1980s. Official statistics do not distinguish between official and unofficial action. There are therefore no reliable figures on unofficial action. However, because stoppages are at an all-time low, there is no indication that the number of cases of unofficial strike action has

risen significantly. Unofficial action tends to be short-lived and usually represents a spontaneous reaction by the workers concerned to a serious incident at work.

Mr Brian Cotter (Shadow Minister (Trade & Industry), Trade & Industry; Weston-Super-Mare, Liberal Democrat)

I am not sure on what basis Dr. Gregor Gall of the university of Stirling made the contention that there has been a fall in strikes, but there is a higher proportion of unofficial strikes than before. I do not know on what basis he made his statement. The idea that strikes have gone down is in the public arena, but as big a proportion are unofficial as before.

Mr Gerry Sutcliffe (Parliamentary Under-Secretary (Employment Relations, Competition and Consumers), Department of Trade and Industry; Bradford South, Labour)

I can only go by the official figures given to me. I will look at the evidence again. If the hon. Gentleman wants to pass on the doctor's evidence to us, we will look at that. Without having looked at that evidence, and certainly on the official figures, I can say that there is no suggestion that we are heading for the development of further major unofficial strikes.

Another presumption behind the new clause is that the current law on unofficial action is ineffective and has major loopholes that ill intentioned militants and unions can exploit. That point has been made. The Government have retained the law on unofficial action that we inherited in 1997. That body of law already contains powerful disincentives for those taking or contemplating unofficial action. For the individuals concerned, there are no protections against dismissal. In my experience, workers think very hard indeed about taking any form of industrial action. An issue has to be very serious for people to take that step. A loss of wages practically always results, relations at work may deteriorate and, in the case of unofficial action, workers risk losing their livelihood.

The hon. Member for Weston-super-Mare maintains that unions can tacitly support unofficial action that their local officials are fomenting. I should point out that unions can lose their immunities if that is the case. Large penalties of up to £250,000 could follow, depending on the number of members in the union. To avoid such serious consequences, the union must repudiate the action as soon as is reasonably practicable after it has come to its knowledge. In other words, the union must take steps publicly to dissociate itself from the action. There are various steps involved, which the law lays down. Let me go through them.

The repudiation must be taken by the most senior figure in the union—that is, by the executive, president or general secretary. That is not therefore a matter that can be delegated to a minor official who carries no weight or authority among the membership. A written notice of the repudiation must be sent to the union committee or official concerned, so that local lay representatives are left in no doubt that they should not be instigating or supporting the action.

The union must do its best to give written notice of the fact and date of repudiation to every employer concerned and to every member who could potentially be involved. That might mean many hundreds of letters. That written notice of repudiation must contain a statutory warning that reminds the members that, while taking unofficial action, they have no right to complain of unfair dismissal, so the individuals know the risk that they are taking. Those

steps are far from trivial; indeed, unions sometimes complain that they are too onerous.

Moreover, after repudiating the action, the law requires the senior figures in the union to behave in a way that is consistent with that repudiation. That prevents the union from repudiating the action one week and then acting to support it soon afterwards. It means that unions must continue to take action to ensure that their lay representatives do not organise or direct the unofficial action.

The hon. Gentleman thinks that unions may use surreptitious means—nods and winks—to give moral or other support to unofficial action. That is a dangerous action for a union to follow. Such actions—or failures to act—can land the union in serious trouble. They would mean that that union had failed to repudiate the action.

The new clause is poorly worded and unnecessary. There are already strong disincentives to taking or organising unofficial acts for both unions and individuals, and there is no evidence to support the case that unofficial action is increasing. I ask the hon. Member to withdraw his the new clause.

Mr Brian Cotter (Shadow Minister (Trade & Industry), Trade & Industry; Weston-Super-Mare, Liberal Democrat)

I thank the Minister for his response and the opportunity to raise that issue as a warning. I am sure that he will acknowledge the support of Liberal Democrat Members. We want to see good employment relations, and such matters are, generally speaking, resolved in a satisfactory way nowadays.

The Minister has reiterated the steps that can be taken to repudiate unofficial action. I hope that that gets into the public arena, so that we can avoid any possible growth of unofficial action. That could be damaging to employees and to the whole climate of relations. I hope that the Minister is right in saying that those matters will not increase and that those outside the House will take note of what should and what needs to be done. That should help us to avoid the growth of unofficial action, while accepting that people are entitled to withdraw their labour if they feel they have been treated unfairly. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.