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With this it will be convenient to discuss the following:
“reasonably detailed indication of the matter or matters in issue in the” and insert “description of the”.
Amendment 16, in clause 4, page 2, leave out lines to 38.
Amendment 17, in clause 4, page 2, leave out lines 39 to 41 and insert?
“(2D) The voting paper must state whether the industrial action is intended to be continuous or discontinuous.”.
Amendment 18, in clause 4, page 2, leave out lines 39 to 41 and insert?
“(2D) The voting paper must state whether the industrial action is intended to be continuous, and if so the intended date for any of the affected employees to begin to take part in the action or, if discontinuous, the intended dates during which any of the affected employees are to take part in the action.”.
Amendment 19, in clause 4, page 2, leave out lines 39 to 41.
We now come to another area of the Bill where I believe that the Government’s true intent is to frustrate the rights of trade unions to take action, to provide grounds for vexatious legal challenges and essentially, in the words of Sara Ogilvie from Liberty, to make their rights “illusory in practice”. While some aspects of the Bill are designed to stop industrial action going ahead in the first instance, others are there to frustrate the industrial action that does go ahead. This clause is very much in the latter vein.
The hon. Member for Glasgow South West, who has briefly left the room, spoke powerfully in opposition to the Bill on Second Reading. He said that the Government were trying to tie up trade unions in blue tape, and I think he is right. Clause 4 will require trade unions to provide more information on the ballot paper, but unions are already required to ask members on the ballot about the type of industrial action they are willing to take—for example, strike action, action short of a strike, a work to rule and so on. Failure to comply with the clause would enable employers to apply for an injunction to stop the strike going ahead or for damages after industrial action has started. I am keen to see the burden and cost of Government regulation fall wherever possible, and the Government’s one-in, two-out rule is a good starting place. The Government’s own words in their statement online are:
“To reduce the number of new regulations for businesses, the government operates a ‘one-in, two-out’ rule. This helps prevent government policymakers from creating new regulations that increase costs for business and voluntary organisations.
Where policymakers do need to introduce a new regulation, and where there is a cost to business when complying with that regulation, departments have to remove or modify existing regulation(s) to the value of £2 of savings for every pound of cost imposed.”
As this is an example of a significant level of new regulation, I hope the Minister will rise to his feet and inform the Committee which two regulations applying to trade unions will now be removed. He does not want to do so at the moment; I hope he will come to that in his speech.
This additional blue tape and regulation risks making industrial relations in the UK worse, not better. With new regulation come additional risks of litigation, and to reduce that risk many unions are likely to include lengthy descriptions of the dispute on the ballot paper that go well beyond those defined in the clause. That will risk confusing members and confusing the issue when we should be having things as simple and straightforward as possible. It will also mean, in a similar vein to other parts of the Bill, that it is more difficult for unions and employers to resolve disputes and avoid the very strikes and industrial action that the Government say they want to avoid. Many unions may find it difficult to convince members that they should accept a settlement that does not deal with all the issues listed on the ballot paper. Unions may also be reluctant to reach an agreement on part of the dispute for fear that it will prevent future industrial action on other aspects of the dispute. Alongside the Government’s wider proposed changes—lifting the ban on the use of agency workers, for example—that will unbalance workplace relations, assisting employers to plan for future strike action by lining up agency staff.
I ask the Minister to explain why, if the Government’s stated intent to reduce regulation and avoid costs is as defined on their website, it is one rule for the business and voluntary sector and another for the trade unions. The effect of the clause will be to introduce a level of regulation that ties unions up in blue tape and causes a whole series of effects for them.
The principle that my hon. Friend is outlining is solid. The Government have a hard and fast “one in, two out” rule for business regulation. When organisations such as the Federation of Small Businesses do consultations, their members say they would like less regulation but the organisations cannot put their finger on what they would like to get rid of. Things that would be difficult to get rid of normally come top of the list—VAT returns and health and safety regulations, which protect the employers as well as the employees in many respects. I am wondering whether my hon. Friend can tease out from the Minister what regulations on trade unions he would get rid of in order to impose this set of rules on them.
I would be very interested to hear what the Minister has to say. The whole Bill seems to be about creating additional burdens, which will, quite frankly, make illusory a lot of the rights that trade unions and their members—ordinary workers up and down the country—enjoy at the moment and put those people at serious risk of not being able to execute those rights.
Let me turn to the amendments, which have been tabled to encourage debate. We will decide whether to press any to a Division when we have heard what the Minister says. Amendment 14 would require unions to state on the ballot paper
“the trade dispute to which the proposed industrial action relates”,
but they would no longer be required to provide a detailed description of “every aspect of the dispute”—that very amorphous term that the Government are using.
Amendment 15 would require unions to provide a description of the trade dispute, rather than a
“reasonably detailed indication of the matter or matters in issue”.
In general, reducing and simplifying the information about the dispute that unions are required to provide on the voting paper would assist in the earlier settlement of disputes. As a result, workers would return to work faster. Disputes would be less likely to escalate, and there would be fewer legal challenges, reducing costs for employers and unions. That is an important point.
The Bill is muddying the waters around straightforward and transparent processes that already exist. Essentially, we are providing a very big space for the lawyers’ hands to come in and for a lot of cost to be expended on behalf of business, the public sector and trade union members. We should avoid legal proceedings wherever we can and encourage arbitration, negotiation and the reasonable settlement of disputes without recourse to the courts. All the proposals in the Bill will increase costs for all the parties involved.
Amendment 16, approaching things in a different way, would remove the requirement to describe the types of action short of a strike on the ballot paper. Amendment 17 would remove the requirement on trade unions to specify the timetable for different forms of action. Instead, trade unions would be required simply to state whether the proposed action is continuous or intermittent, which is perfectly reasonable. That would clearly set out whether it would be one long piece of industrial action or one with numerous parts to it.
Amendment 18 would remove the requirement on trade unions to specify the timetable for different forms of action. Instead, trade unions would be required to state when the industrial action was scheduled to start—in principle, that is reasonable—and when any discontinuous industrial action would come to an end. If we are going to start requiring unions to set out detailed explanations and timetables on how they will conduct the action and so on, action may be stirred up at earlier stages in disputes and people will be encouraged not to seek arbitration and reconciliation. Instead, conflict will be encouraged. Amendment 19, taking a slightly different approach, would completely remove the requirement on unions to specify the timetable for different forms of action.
The amendments are intended to tease out of the Minister how he sees this part of the legislation operating in practice and make him justify why it is necessary. Balloting is already a straightforward process. It is already clear what people are voting on and what types of action are being proposed. This part of the Bill simply seeks to muddy the waters and may result in a lot of expensive litigation.
I rise to speak in opposition to clause 4 and in support of amendments 14 to 19. From reading the clause, the Government appear to think that trade union members are not capable of understanding what they are voting on in a ballot on industrial action. That is a patronising attitude to working people, who do not lightly take industrial action; they consider carefully what they are voting for. They understand the issues. There is not one single shred of evidence of union members saying that they did not understand what they were voting on or why.
The Government propose changes to the law that will turn an industrial ballot paper from a succinct statement with a yes or no question to something resembling a legal disclaimer. The Chartered Institute of Personnel and Development has said that the proposals are “counterproductive”. Employers’ lawyers have said that the proposals are vague and unworkable and that they will lead to legal challenges and expensive litigation. No one wants that—apart from the Government, it would appear.
As my hon. Friend the Member for Cardiff South and Penarth said, the purpose of the proposals appears to be to encourage court cases by employers. Witnesses to the Committee have said that they are not about information for union members, but ammunition for employers. Looking at the detail, the ballot paper must include
“a reasonably detailed indication of the matter or matters in issue in the trade dispute”.
What does that mean? It has been criticised by lawyers across the spectrum for being so uncertain as to be meaningless. What is “reasonably detailed”? It is an oxymoron and it is contradictory. How will both sides of industry know whether something is detailed enough to be “reasonably” detailed or regarded as too detailed? Unions and employers will be in court every single time. What is “an indication”—a nod or a wink? This is not the language of statute, and I wonder whether it might come from the Prime Minister’s nudge unit. Anyone with any experience of industrial relations will know that the question of what is in issue in a dispute is often a matter of disagreement. This wording will further add to legal challenges.
The next requirement imposed by the Bill is to state
“the type or types of industrial action”.
What does that mean? We heard in evidence to the Committee that even Government lawyers themselves cannot explain it. The current definitions of “strike” and “action short of a strike” have been clarified by case law and amendments to statute over the years. They are now clear and well understood, so what are the “types” of action the Bill refers to? We are told that they include an overtime ban, for example, and work to rule, but those are not legal terms of art. Again, this will lead to expensive litigation and legal wrangling in the courts.
Finally, the union must state on the ballot paper
“the period or periods within which the industrial action or…each type of industrial action is expected to take place.”
Why should a union be required to state that information at the stage of the ballot, weeks before any action could lawfully take place, when they must in any event give notice of dates of action after the ballot is completed and before action takes place? The intention behind every single one of these provisions is to set legal traps for unions so that employers can run off to court and get injunctions to stop legitimate action.
Employers, however, do not want the provisions either. They fear the consequences. Employers’ lawyers have said they are concerned that unions will have to draw the descriptions on the ballot paper as widely as possible to give themselves legal protection. Unions will have to include every possible type of action they might take and set out every day on which they might take each type of action.
What is more, employers’ lawyers fear that to avoid legal challenges, unions will have to stick to every single detail spelled out in the ballot paper. They will not be able to resolve any issues in the dispute unless all issues are resolved, otherwise they will face legal challenge. They will have to take every type of action specified and on every single day specified, otherwise they will face legal challenge. How on earth is that supposed to reduce the number of disputes that take place? It will simply increase them.
Disputes will escalate. They will become more entrenched and more difficult to resolve, all because of these changes. That is why the CIPD says that the proposals are a “significant step back” that will “harden attitudes”. I invite the Minister to withdraw them, but if the Government persist with these counterproductive proposals that no one wants, they should be amended as we propose.
I am pleased that the hon. Lady gives me the opportunity to set out in more detail what sort of information we expect unions to include on the voting paper. I fear this may take a little time, but I want to address all the amendments tabled and why we will resist them.
I will start with first principles. We want unions to be absolutely clear with their members about what they are being asked to vote for, in order to ensure full transparency in any industrial action ballot. It is clearly in the interests of union members, as well as employers and the wider public who are affected by strike action, that those being asked to vote for such action can make a fully informed decision about whether to back it.
I remain concerned that merely requiring a trade union to state the trade dispute without requiring any further detail, as suggested in amendment 14, would not meet the objective of enabling members to make a fully informed decision. It would only require a very broad statement. In reality, it will in most cases mean that members have no more information about the dispute than they have from wider communications. It does not provide enough clarity for union members to determine whether they choose to support industrial action. That cannot be right or democratic.
I will continue for a second and then give way to the hon. Gentleman; I owe him one, because I did not see him trying to intervene earlier.
I have a couple of actual strike ballot papers in front of me. They are quite hard to get hold of, so I have not got a huge number. On one, the only statement on the paper was “impact of redundancies”, which did not clarify in which workplace, which group of employees was affected or when the strike was proposed. That ballot paper provided a very vague, short description. Another ballot paper provided a vague but incredibly broad statement about
“adverse changes to pensions, workload, conditions of service, including pay and pay progression, and job loss.”
Neither statement is particularly helpful to those voting on the ballot because not enough information is given about when that dispute would be resolved, so that is not obvious to the person voting. Being told the location of the site of the affected workers would not necessarily help members to know what matters are at issue, and neither would knowing that the dispute is about pay, for instance.
Let us not lose sight of the potential wider benefits of the proposed change. As now, the employer will receive a copy of the voting paper, so including better information about why the industrial action is proposed should have the added effect of helping to eliminate any misunderstanding, which can creep in in such circumstances, between unions and employers about exactly what issues remain in dispute. In turn, that should facilitate employer discussions with the trade union about how the dispute might be resolved, where possible without recourse to industrial action.
Turning to amendment 15—
Of course. I was ploughing on and I did not mean to forget the hon. Gentleman. It is only because he is outside my peripheral vision—
I would simply say that if they all do that, and I agree that that practice is welcome, it should hardly be difficult just to provide a few more details on the ballot paper so that when somebody’s vote is decided, it is clear what they have voted for or against. I promise Opposition Members that from now on there are no blinkers on this Minister, as I am sure that they will be happy to admit.
Let me explain why we have used the words “reasonably detailed”, because the hon. Member for Sunderland Central in particular thought that was a mistake. That specific form of words is used in clause 4 to take into account the particular circumstances of each trade dispute. If there is any more detail that a union could reasonably give on the ballot paper, the requirement is not satisfied. For example, if the issue is identified simply as “pay”, it may well be right to say that there are further details that the union could have included. Those details might include which year’s pay offer is in dispute, and which employees are covered by the offer. Again, that links back to our overall objective to ensure that unions provide clarity to their members about what they are being asked to vote for so that there is full transparency in any industrial action ballot.
We think it is much more helpful to union members if a trade dispute that affects them in different ways is articulated in sufficient detail so that everyone knows the point on which they are being asked to make a decision on industrial action and how each individual is affected by the trade dispute. However, we do not want to put unnecessary burdens on unions by asking them to include a long and detailed account of the trade dispute. That would be onerous and would dilute the very clarity that we are seeking to provide. That is why the clause does not require a “reasonably detailed” description of the trade dispute. It is about balance, and the Bill as currently drafted best achieves that.
Amendment 16 would not assist members to understand what type of action they are voting for. That is particularly important because there is no definition of action short of a strike. If we do not require a trade union to state on the voting paper what specific type or types of action it is proposing, a member will not know what action he or she is being asked to back. Even stating that the proposed action is action short of a strike does not help members to make a sufficiently informed decision, because there are various types of action that amount to action short of strike. Just using that phrase will not help members to understand what they are voting for. For example, a member may support industrial action that amounts to an overtime ban, but not a period of work to rule. If the voting paper does not specifically state which of these actions the union proposes its members take, how will they know how to vote?
Having said that, I appreciate the point the hon. Gentleman made about there being a degree of uncertainty at the stage when the union is drawing up the voting paper about how the negotiations will continue to play out and therefore what action the union might subsequently take. Nevertheless, if the union has reached the stage at which it is asking its members to support a ballot for industrial action, it must surely have in mind a plan for such action. All we are asking in new section 229(2C) is that the plan should be disclosed to the union members. I do not believe that is unreasonable.
My understanding is that it is working to the contractually committed hours and not being willing to work beyond those or in a different place, perhaps, than contractually committed. I am sure I can provide the hon. Gentleman with the legal or commonly accepted definition, but that is my understanding.
I do not think it is my job to apply it to any particular workplace.
Does my hon. Friend agree that the clause is about giving certainty to all involved in business: the employers and the union members, the people who are voting? I draw the Committee’s attention to the submissions of Dr Marshall and, in particular, David Martin, who said:
The clause is a sensible evolution in the legislation and is just about ensuring clarity for all involved.
I thank my hon. Friend for her intervention; she is absolutely right. In a sense, the hon. Member for Middlesbrough South and East Cleveland has, perhaps unintentionally, made my argument for me—I do not have to understand what is proposed on every single ballot paper; I am the mere Minister in this. The people who have to understand it are those being asked to vote on whether to strike—which, if they choose to, will have huge direct personal effects on those being asked to strike, as hon. Members have pointed out—or being asked to co-operate with an overtime ban or anything else. It is they who need clarity about what is being proposed, and that is all we seeking to ensure.
I am not giving way again; I need to make some progress.
On the period for proposed industrial action, a union member may be fully supportive if he or she knows that it would take place in late November or early December, but not if it was to take place, say, over the Christmas period. Trade union members may want to consider the proposal in relation to their personal circumstances, as well as their work. Amendment 19 would simply not meet that objective, because it would preserve the current situation, in which there is no requirement whatever to provide any information in the voting paper to union members about the timing of industrial action.
I have similar concerns about amendment 17. Simply knowing whether industrial action is to be continuous or discontinuous, without any further information about timing, does not help a member to understand when such action might take place. Indeed, I doubt whether the words “continuous” and “discontinuous” in the context of industrial action mean very much to a lay person. Surely it is the time period that is the key to ensuring that members have clarity about when action is due to take place. Of course, it is also important that employers know whether the proposed action will be continuous or discontinuous. That is why the notice of industrial action, which a union must provide to an employer under section 234A(3)(b) of the 1992 Act before taking such action, must include a statement to that effect. Crucially, however, that notice must also contain details about the intended dates for such action. Indeed, that is its purpose: to tell the employer exactly when the action will happen. That is in contrast with proposed new section 229(2D), which requires a union only to provide an indication of when the expected industrial action would take place, not a specific date or set of dates.
That brings me to amendment 18. To require a union to state whether the industrial action is intended to be continuous and to state the intended dates would be to require it to specify a particular date on which the action is to start—for example, from 15 October. That would be very restrictive; indeed, it is much more prescriptive than the requirement under clause 4, which, in this example, would just be to indicate the period of industrial action as being in, say, October. That would give a union the flexibility to start such an action on, for example, 1 October, 15 October or 25 October, and for it to last for, say, one day, one week or longer—subject, of course, to the union providing 14 days’ notice to the employer and the action taking place within the four-month time limit of the mandate.
I have even more concern about a union’s ability to meet the proposed requirement to specify that the action is discontinuous, together with the intended date for such action. That combination of words would effectively require a union to state up front and before it has even secured a mandate for action the precise dates on which such action is planned or intended. It would be much more difficult for a union to predict such dates so far in advance, and they may well turn out to be unreliable. For example, if the union finds that it does not want to take action starting on or specifically on those precise dates because negotiations are ongoing, it would no longer have a ballot mandate. The dates would need to be reliable or the union would risk misinforming members. Making a union set out its plan in such detail, so early, means that the dates would be very likely to change.
Having said that, let me be clear: it is entirely reasonable to require a trade union to specify that the action is discontinuous, together with the intended date for such action, at the point when it is serving notice of intended action to the employer under section 234A(3)(b) of the 1992 Act, as is the current position. However, to suggest that a union should articulate the precise dates on which it will take particular action so much earlier in the process is an entirely different proposition, and one I cannot support for the reasons I have outlined. I therefore urge the hon. Gentleman to withdraw the amendment.
The debate has been interesting. As the Minister will appreciate, the role of the Opposition is to table amendments to expand on a series of issues, not necessarily to push them all to a vote. The debate has been helpful in eliciting from the Minister various responses about the intent behind clause 3.
I listened carefully to what my hon. Friend the Member for Cardiff Central said about the concerns of the Chartered Institute of Personnel and Development and employers’ lawyers relating to the clause. I agree with her that, in many respects, the clause, the Government’s intent and, I would gently say, some of the Minister’s comments can be seen as patronising to trade union members. The suggestion that there is widespread ignorance about the disputes on which members are balloted and that they are somehow under the Jedi powers of their union steward masters is a fantasy. If Members speak to any ordinary trade union member or person affected, they will find that people are very clear: they know what issues are affecting their pay and pensions.
In most unions, by the time strike action is taken, a local dispute will usually have been taken to a regional level, and if the matter was not resolved at a regional level, it will have been taken to a national level. That is certainly what happens in large private industry, particularly the steel industry. I imagine that there are such cultural norms in most trade unions.
I completely agree. It is important to recognise something that Government Members seem to have lost in this debate: the vast majority of trade union members and workers, whether in public services or the private sector, will seek to resolve disputes through very reasonable mechanisms, such as talking to line managers, colleagues and others in the management of a firm or public service, before they reach the stage of even contemplating industrial action or disputes. Most people act in a human way and want to resolve things as easily as they can. It is only when frustrations build up and concerns are not listened to—for example, on health and safety or fundamental disputes with the Government about restrictions on pay or pensions—that things reach the point where industrial action is considered. I say gently that the Government do not appear to understand how things operate in practice.
Indeed, I can barely think of any possible examples in which a trade union would not explain the progress of negotiations and what might be going on and feed back to its members what is happening in a workplace.
Sadly, that is right. My section also dealt with blind and disabled people working in sheltered workplaces, including at Ayresome Industries in Middlesbrough. As well as union officers, the unions brought in, over a prolonged period, signers and Braille writers to ensure that those employees were informed of the situation and the exact nature of any dispute.
That is a very important example. The Minister selectively looking at a couple of ballot papers proffered to him by his officials is simply not reflective of the wide degree of communications and engagement that will go on when trade union members—workers in a firm or a public service—are considering industrial action. It goes back, again, to the point made by the hon. Member for Glasgow South West: why would trade unions want to be hoodwinking people into action? How would they then convince them to take part in it? It is just nonsense.
This is a very important point. Surely, in an industrial dispute there are people who will agree down the line with the union stance, others who are more ambivalent and some members who are against. When a union informs its members and updates them about what has been transpiring in the course of a dispute, members who are against taking industrial action will pass on any misinformation from their union to an employer and the employer will undoubtedly take legal action against the trade union for misinforming the workforce. Therefore, we are clearly seeing a measure here which is not necessary.
My hon. Friend the Member for Gateshead makes a very good point. Also, as I said, the amendments encourage some clarity from the Government on the issue of timetables. I think the Minister said that—surely, they have in mind a plan. Actually, most trade unions operating in a dispute are trying to find a resolution from the start: industrial action is a last resort. We have to say that again and again. I imagine that in many circumstances there is no plan—they are hoping that management or Government, whoever it might be, will come forward with a reasonable solution through means other than industrial action to solve a dispute.
Does my hon. Friend agree that the whole premise of the Government’s argument about this part of the Bill comes from a belief that the unions are very top-down, imposing what is going wrong in the workplace, or what workers have a problem with? Whereas actually, the reality of industrial disputes is that problems arise from the bottom, from something that union members are not happy with, which the union officials are trying to sort out and resolve. If that fails, it is the union members that pressure for industrial action, often as a result of consultative balloting in the first place.
That is exactly the point. Indeed, as with many other parts of the Bill, it looks like it has been drafted by people who simply do not understand how trade unions operate in a modern industrial setting. It is based on assertions, ideas and myths that have been created, often by the Minister’s colleagues. I remember the Minister for the Cabinet Office using some very colourful language in this area. It does not reflect actual practice and I hope, given that the Minister is trying to set out the case for this, that he will explain whether the Department has received widespread, conclusive evidence of ignorance, with people writing in saying, “We don’t understand what’s going on, the Government must legislate”. Where is the demand for this legislation, other than in the theoretical towers of Victoria Street?
With that, I seek the Committee’s view on amendment 14 and the wording of disputes on a ballot paper. Also, in the spirit of wanting to encourage the Government to foster negotiation and allow the maximum time to achieve resolution of disputes, I wish to press amendment 19, which would remove the requirement for timetables altogether, to a vote.