The amendment would extend the period before any new ballot would be required, and reduce the risk of incompatibility of the provisions with Article 11 of the European Convention on Human Rights – an issue addressed by the Government in its memorandum on the Bill.
As we have discussed, Opposition Members believe that many of the measures we have scrutinised risk making industrial relations worse, not better. Clause 8 is no exception to that rule. Existing legislation provides that so long as industrial action starts within four weeks of a successful ballot, the mandate for it remains intact for as long as the dispute with the employer exists. The changes brought about by clause 8, however, will mean that trade unions are no longer required to start industrial action within four weeks. Where industrial action, whether continuous or discontinuous, lasts for more than four months, the union will be required to reballot.
The clause will have two effects. First, it will create substantial legal and administrative costs for trade unions, which spend significant sums of money on ballots to ensure the very participation that the Government say they want to encourage. I do not see that the Government appreciate the impact this will have—perhaps I am suspicious that they do—on unions in terms of costings.
Secondly, where ballots meet the Government’s thresholds, the measures will actually intensify disputes, leading to more sustained industrial action at the outset as unions try to settle disputes without the need to reballot, given the financial implications. That is a real threat, and one that I do not believe the Government have given consideration to. Again, if their intent is to prevent industrial action and strikes, why are they introducing this sort of measure? This inevitably risks worsening employment relations and creating more disruption for the wider public, which none of us wants.
The additional risks posed by the clause to industrial relations, coupled with the fact that the number of days lost to industrial action are at a historic low—my hon. Friend the Member for Gateshead pointed out that the days lost to industrial action today are barely one hundredth of those lost in the 1970s, with nearly two thirds of actions lasting only one day—mean that many are rightly wondering what the purpose of the clause is.
I gently suggest to the Committee that the Government’s focus for the proposals is some particular public sector disputes relating to the Government’s proposals on pay and pension changes. In those disputes, trade unions have often relied on one ballot mandate to organise a succession of strike days over 12 months or so, to limit the immediate impact in the short term but make clear their concerns over a period and encourage the Government to negotiate on the matter. However, under the Government’s proposals, after four months, unions will be required to reballot, even if employers refuse to engage in genuine negotiations and the dispute remains unresolved. I believe this has more to do with silencing the critics of Government who want to raise legitimate grievances about pay, pensions and conditions at work.
Does my hon. Friend agree that the clause is designed to allow employers to effectively sit out a dispute and refuse to negotiate in order to force a union to reballot, at considerable cost? For big public sector unions with hundreds of thousands of members, the costs are significant. In contrast, unions will feel forced to bring forward any planned strike days in an attempt to secure an earlier settlement.
Indeed; that is a likely intent of this. When coupled with the measures on check-off and political funds, the Government are essentially chopping off funding for trade unions and then massively increasing their costs by this measure and the other regulatory burdens imposed by the Bill. Rather than imposing additional restrictions on workers’ ability to strike, the Government should engage in genuine negotiations with trade unions.
My hon. Friend makes an important set of points. I have a real concern: the Government have stated time and again that the whole thrust behind the Bill is to avoid disruptive industrial action, but it seems to me, particularly where complicated industrial disputes cover many different workplaces, that the proposals in the clause could significantly increase the potential for unwelcome wildcat action, where members’ frustrations boil over and they just walk off the job.
That is a risk. Undoubtedly, when the Minister gets to his feet he will talk about ballot mandates from a long time ago legitimatising action years down the line. There is a genuine sympathy with that concern, which is why I tabled amendment 24, which would extend the period before a union would be required to reballot its members from four months to 12 months. The amendment would be likely to assist the resolution of disputes and significantly reduce the administrative cost burden for trade unions involved in protracted disputes, while avoiding the problem that the Minister will undoubtedly refer to as motivation for the clause.
It is a question of reasonableness in all these matters. Most unions want to ensure that there is a strong mandate for action if it is required, which is fair, but four months is such a short period. Given the costs involved, it reveals a different intent behind the Bill and will discourage good industrial relations.
Does the hon. Gentleman share my concern that the Bill is potentially a rogue employers’ charter? Such employers will use tactics to continue to delay the negotiations. On that basis, if the four-month limit is coming up, they will not deal with the trade unions.
Absolutely, and, combined with the other measures by which a vexatious employer might wish to frustrate the balloting, the wording and everything else that we have already discussed, that creates a very difficult set of circumstances that will fundamentally render illusory the right to strike, to freedom of association and to withdraw labour in furtherance of a dispute. I hope that the Minister will comment on that.
As we draw towards the end of the first day of line-by-line consideration of the Bill, we are reaching a point where the shadow Minister could do my bit as well. He could make my arguments: he anticipates them and knows exactly what I am going to say before I say it. It would be vastly to the entertainment of the Committee were we to allow him to do so, but I might be fired.
We simply want to ensure that industrial action is based on a current mandate on which union members have recently voted, and that those members are still working for the employer where the industrial action is proposed. It should not be a legacy mandate based on a vote undertaken many months or years previously.
I would not want to disappoint the shadow Minister by not doing as he anticipated and reminding the Committee of certain recent strikes that caused great disruption to members of the public but were based on very old mandates. There were strikes by the National Union of Teachers in July and March 2014 that were based on mandates from June 2011 and September 2012. In October 2013, there were strikes based on a mandate from November 2011. It just is the case that there is current practice of holding strikes based on very old mandates. That is what we are seeking to address with clause 8.
We specify that a ballot mandate has to have an expiry date, which both frees employers from the current situation where strike threats are made for which the original balloting took place some years earlier and removes the resultant long periods of uncertainty, not only for employers but for union members and members of the public.
In deciding how long the mandate should last, it is important that we strike a balance. As I have said, we must remove the uncertainty, which can currently last years. That must be balanced with the need to provide a reasonable amount of time for constructive negotiations to take place. Of course, I am delighted to see that, through the amendment, the Opposition are open to the idea of testing the concept of a time limit to the mandate. The question, as the hon. Gentleman has just asked, is why we have decided on four months, rather than the 12 months that he proposes.
We consider that a four-month period balances the objective of, on the one hand, ensuring that strikes cannot be called on the basis of old ballots and, on the other, allowing sufficient time for constructive dialogue to take place. A period of 12 months would tip the balance too far in favour of the unions to the detriment of everyone else—not just employers, although employers would still have the threat of strike hanging over them for a considerable length of time. Union members should have certainty on the period during which they might be asked to take industrial action. That is particularly important given the consequential effect on their pay. Twelve months is simply too long to expect people to live with such uncertainty. If members have moved jobs, it might not even be the same group of people affected.
According to the Chartered Institute of Personnel and Development, annual staff turnover in 2014 was 13.6%, which means that after 12 months, on average, nearly 14% of the workers who voted for a strike might no longer be in the same job. That must call into question whether the union has a truly valid mandate.
The Minister is quoting statistics that cover industry and employment in the UK, which includes people who are, by design, on short-term contracts where turnover is built into the system. By the nature of their employment rights, not having two years to protect their employment, such people will probably not go on strike in the first instance. The statistic is being skewed by a group of workers who will have no effect on the likelihood of a strike in another instance.
Let us not forget that people’s perceptions of a dispute can change over time. It is only right that unions check whether industrial action still has the support of their members. Leaving it for a year before a union checks that it still has a mandate is simply too long. In fact, any of the circumstances about strike action are likely to have moved on after four months.
I think we are all agreed that constructive dialogue is important. Negotiation is key to resolving disputes satisfactorily. A four-month time limit on the ballot mandate should not impact on the parties’ ability to negotiate a settlement. Indeed, negotiations may well be more focused when an employer has greater clarity about the trade issues in dispute and where a union has a strong and recent mandate for industrial action.
During the course of a dispute, trade unions will be contacting their members and having workplace meetings on every part of the process. I do not get why four months is necessary. The Minister seems to suggest that trade unions do not contact their members during that four-month period.
Obviously we disagree on this, but the fact is that this is not only about union members—some of whom may have moved on or changed their mind—although they are incredibly important to the process. It is not only about employers, although they are also incredibly important to the process because they can lose a great deal of money and perhaps even customers as a result of strike action. This is also about members of the public who rely on services and need to know that there might be a bus strike if a ballot in support of strike action took place three months ago. No one will remember the strike ballot and its result if the period was 12 months.
Let us not forget that, crucially, the period of four months is not the only period during which negotiations will take place. Indeed, such negotiations should have started long before a union seeks a ballot mandate. Let me also be clear about what the clause does not do. It does not prevent strikes. If a union has legitimately secured a clear, decisive, democratic ballot mandate for industrial action from its members, and the dispute cannot be resolved by negotiation, that union’s members can strike. It also does not prevent unions from seeking a further ballot mandate if the dispute is ongoing when the ballot mandate expires. New subsection (1A)(a) specifically provides for that. I therefore ask the hon. Member for Cardiff South and Penarth to withdraw the amendment.
While I sympathise with some of what the Minister said, I fundamentally do not see the argument for a four-month period. This is a matter of interpretation. Twelve months provides a much better period; four months is far too short and will encourage disputes. Indeed, as many Members have said, it could encourage wildcat action, which we certainly would not condone and I am sure the Government would not want. With that in mind, I seek to press the amendment to a vote.
Adjourned till Thursday 22 October at half-past Eleven o’clock.
Written evidence reported to the House
TUB 28 UNITE - further submission
TUB 29 RMT
TUB 30 Tony Wilson, Managing Director, Abellio London and Surrey
TUB 31 Cllr Darren Rodwell, Leader, London Borough of Barking & Dagenham Council
TUB 32 Communication Workers Union (CWU)
TUB 33 National Union of Teachers (NUT)
TUB 34 CollegesWales/ColegauCymru
TUB 35 North Lanarkshire Council