by Mike Emmott, CIPD Employment Relations Adviser, @emmott_m
It shouldn’t perhaps be any surprise that the first Conservative Government in almost twenty years is keen to revisit the law on industrial action. The number of days lost through strikes is running at historically low levels, but over 90 per cent of those lost days are in the public sector. And industrial action in the public sector is generally not aimed at the employer, but rather at the government itself. Regular headlines about union action on pay, pensions and austerity threaten to undermine David Cameron’s ‘One Nation’ aspirations. Ministers may be thinking that now is the time to finish off the job started by Margaret Thatcher and aim to put trade unions back in their box.
So today the Government has tabled proposals for legislation to challenge “disruptive and undemocratic” strike action. The main proposal is that legal strike action should be based on a ballot in which at least half of those eligible have turned out to vote. This threshold would apply to proposed industrial action in all sectors of the economy.
The second key proposal is that industrial action in key sectors would require the support of at least 40 per cent of all those entitled to take part in strike ballots. Trade unions argue that this is a tougher threshold than that which gets MPs elected. Against this, the Government argues that the level of support required to legitimise strike action in essential services should reflect the negative impact of strikes in education or transport, for example, on the wellbeing of large numbers of people.
Setting aside for the moment the question of whether the proposals are fair and reasonable, we need to ask if they are actually workable and likely to achieve the objective of reducing industrial action, particularly within the public sector. It seems perfectly possible that they will, in fact, make matters worse, at least in the foreseeable future, because:
· the numbers of days lost through industrial action in recent years have been at historically low levels. The Workplace Employment Relations Study in 2011 found that 96% of managers believed that relationships with their employees were either very good or good;
· the legislation may turn some neutral employee opinion into support for industrial action. Unions still have significant membership and support in public services. It should not prove impossible for them to convert this, on a number of high-profile issues, into a 40%-plus vote of all those entitled to vote.
· the proposed thresholds will, in many cases, make it harder for employers to defeat strikes, or for trade unions to call strikes off. On the back of a hefty vote in favour, union members are likely to identify more heavily with the cause on which the strike was called, and the price of eventual settlement may be higher.
· the penalties for failing to comply with the law on industrial action fall on trade union funds: they do not affect the rights of individual employees. Restricting the opportunity for trade unions to promote lawful industrial action might, therefore, lead to more “unofficial” action, led by local officials or others who could be disowned by the union leadership. Such action can be hard for employers and trade unions, or indeed Acas, to resolve.
The legislation is certain to provoke considerable media and Parliamentary debate, not only on the proposed thresholds but on other issues, including:
· The definition of ‘essential public services’ – including health, education, fire, transport, border security and energy sectors, goes beyond services that are wholly funded by the taxpayer and is presumably intended to reflect high recent levels of industrial conflict in, for example, London Transport. But the Government may need to explain the basis on which some sectors are included because they are regarded as essential, while others are not.
· In a number of recent cases, trade unions have challenged the UK’s interpretation of article 11 of the European Convention on Human Rights on freedom of association. Although in the most recent such case, RMT v UK (2014), the European Court of Human Rights rejected the union’s claim, further tightening of restrictions on industrial action could help tip the balance in the unions’ favour in future;
· the Government is proposing to repeal the current statutory restriction on employment agencies from supplying a temporary worker to replace an individual taking part in an official industrial dispute. There is nothing in existing legislation to stop employers from recruiting replacement staff, so long as they take them on directly and not through an employment agency. However, it seems unlikely that too many employment agencies will welcome getting involved in industrial disputes.
If the Government wanted to minimise levels of industrial action, it might have been better advised not to pick a fight with the unions but to work with the leaders of key public services to improve how change and service transformation is managed and increase employee engagement, so that calls for industrial action would have been more likely to fall on deaf ears. Organisations need to engage with employees and respond to their concerns before they undermine employee trust which, once broken, can be difficult to repair.
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Mike has, as usual, provided a balanced assessment of the likely impact of the Government's proposed new measures. In my experience, Trades Unions and employees themselves - indeed most people - respond much more positively to a constructive dialogue with reasoned argument rather than a confrontational approach which just antagonises everyone and makes a sensible solution to an issue much more difficult to achieve.
Trades unions have of course to do what they think is best to protect their members' interests but, for the most part, are pragmatic and generally view strike action as a last resort when other means of negotiation or consultation have failed.
22 Jul, 2015 08:53
24% of the UK population voted the Tories in.
Different rules for working people's democracy - OK we have to live with it now.
I guess a question could be:- what is the government contribution to a fair, safe, secure, healthy, productive life?
The answer has to be failed miserably on almost every count.
This legislation is another nail - and a very big one for a fair, safe, secure, healthy, productive life for around 99% of the population anyway. 1% will do pretty well out of it.
Since 1948 G8 productive economies have grown around 240%.
Since 1948 G8 worker pay has grown about 110%
Between 1948 + 1975 worker pay kept pace with productivity.
Starting 1975 onwards capital beat up labour - badly!
Who got the 130% reward from the increased production?
It certainly hasn't gone to working people!
And that is why we have boom-bust economies - asset bubbles from QE money - political capture by corporations - a 'fire sale' of all state owned (ours) cash generating assets and services - and TTIP coming your way soon - oh - and NHS privatisation.
What have the 24% done....!?
22 Jul, 2015 09:57
This is a worrying development. Whilst strikes should be a last resort and of course inconvenience people the right to strike is one of the hallmarks of a democracy. One of the first things Hitler did was to outlaw all but a state sponsored 'trade union.' Perhaps that History graduate, George Osborne, would do well to study the dismantling of democratic institutions in Nazi Germany.
22 Jul, 2015 11:45
I worked with both the CWU during the 80s and 90s when we had frequent official and unofficial industrial action. The reality is that whatever the law says, activists will always find a way to stick a spanner in the works. We had the ludicrous situation then where the National Exec would repudiate the unofficial action in writing, whilst the left wingers would agitate behind the scenes being careful to keep their fingerprints well away from anything. All this legislation will do is to drive the action underground and deny employers a chance to plan for the strike. In principle I do like the increased notice period and the ability to use agency staff to cover but I fear that the latter will need to be bussed in under police escort and we'll see a return to some of the scenes we saw in the 70s. Is the IR situation really that broken that we need to risk that?
23 Jul, 2015 16:15
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