Department for Business Innovation & Skills consultation

Ballot thresholds in important public services

UNISON submission – September 2015

Introduction

UNISON is the UK's largest public service union with 1.3 million members. Our members are people working in the public services, for private contractors providing public services and in the essential utilities. They include frontline staff and managers, working full or part time in local authorities, the NHS, the police service, colleges and schools, the electricity, gas and water industries, transport and the voluntary sector.

As a trade union UNISON regularly engages with employers and government to protect and improve the pay and conditions of all who work in public services as well as the services they provide to society, a role directly affected by the proposals in this consultation.

UNISON believes that the Trade Union bill and the specific measures outlined in this consultation on strike ballot thresholds are designed to restrict the ability of people at work to organise collectively, make their voice heard at work and take industrial action. In doing so, the Bill’s proposals significantly disempower employees within the workplace and contains proposals, the cumulative effects of which are unfair, unnecessary and undemocratic. They will also undermine social partnership in the workplace and the civil liberties of working people in Britain. To attempt such a drastic undertaking on the basis of a consultation process and impact assessment which the Regulatory Policy Committee itself has rated ‘Not Fit for Purpose’ causes UNISON deep concern.

The online survey response form does not provide us with the opportunity to raise many of the wider concerns that UNISON has. The narrow definition of the questions assume acceptance of the central premise and that the questions are a legitimate reflection of the issues, which UNISON does not accept. Therefore, UNISON will make a substantive response to the proposals followed by specific responses to the consultation questions themselves.

General Points

The Right to Strike

The right to strike is a fundamental one, which should be respected in a free and democratic society. A wide range of international treaties including the ILO Conventions, the European Social Charter and the European Convention on Human Rights safeguards this, as confirmed by recent case law. The European Convention on Human Rights also safeguards the right to freedom of association, including the right to form and join trade unions and the right to freedom of expression without state interference.

UNISON is deeply concerned that the Trade Union Bill and accompanying regulations and consultation documents places these rights at risk. Just the imposition of a 50% participation threshold in strike ballots will have a chilling effect on the ability of employees to take legitimate strike action.

According to the ILO Freedom of Association Committee[1]:

‘The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.’

The ILO has called on governments to amend their national laws where they included such provisions.[2] Together with additional restrictions of a 40% ‘yes vote’ in important public services, an obligation on unions to give 14 days’ notice for industrial action and the removal of the ban on the supply of agency staff to cover strikes represent a serious erosion of the right to strike and conflict with the government’s international and human rights obligations. The proposed restrictions on rights to picket and protest peacefully would also seriously interfere with the civil liberties of working people in the UK, including their rights to assemble and to freedom of expression.

UNISON received responses from thousands of its members on the threat posed by the Trade Union Bill on their right to strike. Nearly all the comments we received raised the importance of the right to strike in ensuring that their voice was heard in the workplace, even if they chose not to take industrial action. One member told us: “The right to challenge, and the right to protest, is the right to be heard and to be listened to.” The following comments are characteristic of the thousands of responses received:

§  “It is sometimes the only way to demonstrate size and strength of feeling. It should be a last resort but some issues come to that.”

§  “Too often employers introduce unworkable and unwarranted changes that have an impact on workers lives. Employees need to have an option to highlight their grievances if not being listened too or no concession/compromise being offered.”

§  “Employers are not always aware that their actions cause hardship to workers”

§  “Generally the status quo favours the employer so to do nothing can help them. They have the power in the equation”

§  “The ultimate sanction against unfair treatment”

UNISON does not believe that the government has set out sufficient reasons for its proposals on industrial action ballots. Strikes are at a record low as this graphic produced by the TUC illustrates

The number of days lost to industrial action per year has fallen dramatically over the last 30 years. Since 2010, on average 647, 000 days have been lost to industrial action each year, compared to 7, 213, 000 days lost per year in the 1980s.[3] . It is instructive that the Government’s impact assessment dwells only upon short timeframes of between five to ten years. The Regulatory Policy Committee also noted this and stated ‘The RPC considers that a longer time series would have been useful context for the recent increase in strikes, and some discussion of the approach to these problems in other countries would have improved the quality of the presentation.’[4] UNISON believes that the BIS impact assessment is flawed and incomplete. As the Regulatory Policy Committee states: “The IA does not explain and present the rationale for the proposals in a straightforward and logical way. As such, the RPC does not believe that, in its current form, the IA provides a clear enough basis for consultation.” [5]

The consultation document repeatedly states that industrial action ballot thresholds are needed to ‘ensure that industrial action is only used as a measure of last resort and where there is clear and ongoing support for doing so’[6]. UNISON believes that workers in the UK do indeed see industrial action as a measure of last resort and that the Government has failed to demonstrate otherwise.

UNISON believes that the government has also failed to demonstrate the need for further regulation of trade unions, because the UK already has one of the most regulated systems of industrial action in the world. Unions already have to comply with highly complex legislation, including onerous notice and balloting requirements. The complexity of current legislation means that unions are at risk of legal challenge, with employers able to win injunctions for minor administrative errors and thereby preventing industrial action from taking place. The Trade Union Bill will simply exacerbate this, with the introduction of additional legal hurdles for trade unions. The requirement on unions to run postal ballots sent to members’ homes are highly costly and are a barrier to members participating in trade union democracy.

The consultation refers to current trade union ballot results as being ‘undemocratic’ - however, they have refused to consider measures such as electronic balloting or workplace balloting supervised by independent scrutineers. This runs counter to the government’s pursuit of electronic participation in every other area of its work. Allowing union members to use secure electronic voting for industrial action ballots would increase participation in union democracy, particularly amongst younger members.

While the consultation document states that ‘none of these changes are about banning strikes[7]’ in reality unions will face a series of bureaucratic hurdles which might result in legal action and financial penalties even if trade unions meet all the thresholds for participation and a ‘yes’ vote. UNISON is firmly committed to increasing participation in all forms of our democratic activity – including industrial action ballots. However, it is deeply unfair and undemocratic that the government is proposing to impose statutory thresholds for our ballots when no politician is required to meet such thresholds and when no such thresholds will apply in the forthcoming EU referendum.

In the UK an absent vote is not regarded as a negative one. There are a range of reasons why trade union members might not vote. There might be a positive decision to abstain. They might be on holiday or ill. They might not have an opinion on the dispute and rely on their colleagues to make their views clear. Low paid workers are more likely to move and change address – and might not regularly update their trade union with their latest details. Rather than enabling such members to participate more easily in trade union ballots, the Trade Union Bill will restrict the democratic rights of working people and the ability of trade unions to represent their members in the workplace. It will ultimately lead to a diminishment of workplace democracy.

The negative impact of statutory ballot thresholds does not stop there. They mean that unions will have to take more time in the run up to ballots to ensure the necessary turnout, prolonging the dispute. The thresholds will remove the incentive on employers to seek an early resolution of the dispute. Many will decide to wait and see if a union can meet the strike thresholds before making a revised offer. The extended 14 day notice of industrial action will needlessly delay its start. Time limits for strike mandates are likely to escalate disputes, with employers choosing to sit out disputes and refusing to negotiate in the knowledge that unions will incur new costs if they are required to re-ballot their members after 4 months. All these factors are highly likely to make it harder for ACAS to gain agreement from employers to engage in talks. Giving 14 days notice will also significantly raise the risk and likelihood of victimisation of trade union members, placing them under great pressure with implications for their well being, damage to industrial relations and further potential litigation.

The consultation document states that “When balloting for industrial action, it would be the responsibility of the trade union to identify workers who may be subject to the 40% threshold, to apply the correct balloting and threshold rules, and to demonstrate this had been done if the industrial action was called”.

The rules on who is covered by the 40% yes vote requirement are highly complex and the responsibility placed on trade unions are likely to place a huge bureaucratic demand on any sector where multiple employers and service users are involved. The red tape and bureaucracy imposed on unions by industrial action thresholds will see scarce union resources diverted from the kinds of positive trade union activity outlined below to an increased focus on workplaces facing disputes before and during the balloting process. As a result, employees, public services and the wider community will lose out.

Furthermore, ensuring that a strike that meets the thresholds set but could still be challenged on a technicality changes the climate to one where employees fear to challenge employers and where employers will disregard reasonable demands that benefit both workers and users of public services. What the consultation document and impact assessment is silent on is the role that a credible threat of strike action plays in underpinning social partnership and collective bargaining. When the consultation states that: “the Government’s policy is to encourage workplace disputes to be resolved without the need for industrial action; and to ensure where industrial action is used, it is as a last resort with clear and ongoing support for action” it fails to recognise how the possibility of industrial action is a key lever for workers in collective bargaining processes. Stacking legal and technical obstacles against industrial action disputes and ballots exacerbates workplace disputes and prevents their quick resolution. The provisions of the Trade Union Bill will discourage constructive social partnership, lead to more entrenched positions and could result in protracted and aggressive litgation which further damages industrial relationships.

Far from being positive, the Trade Union Bill will heighten tensions between employers and workers. UNISON is also deeply concerned about the increased likelihood of trade union victimisation which seem to be an inevitable consequence of the TU Bill.

Collective bargaining, social partnership and the right to strike

Trade union activity provides workers a place to voice their experiences and mechanisms to resolving grievances and disputes whether informally or through collective bargaining. Trade unions therefore play a central role in resolving disputes in the workplace and in avoiding the need for industrial action. Placing tighter restrictions on trade unions is likely to prolong and escalate disputes in the workplace, making them more difficult to resolve swiftly and amicably.

One example of the kind of social partnership working UNISON and its members engage in within the public service is in the NHS. Successful partnership working is something that has defined industrial relations in the NHS, particularly over the last 10 years, across different governments. The provisions of the Trade Union Bill will ride roughshod over much of this best practice that has built up and threaten to undermine a spirit of collegiate working that has taken many years to foster.