My Lords, I associate myself with the contributions that have been made. They have been pretty outstanding and have got to the very nub of the issues.
I thank the Minister for coming forward. We have had some very engaging discussions on other issues, and it is unfortunate that he has to deal with this issue in this particular way. I hope he is absorbing what we are saying and will respond adequately to it, but we do not hold him personally culpable for what has come before us.
It is important to understand that the conventional wisdom is that the Act was originally in the manifesto merely as some barking mad idea to negotiate away when the coalition was formed and that it would not stand. It is unfortunate that the circumstances evolved as they did and we ended up with something that was so partisan and vengeful. The debates that we had in this House were very significant; indeed, the size of the majorities against the Government’s proposals—certainly, there were calls for some balancing measures for the democratic mandate so accorded—was very large, and expressed the deep concern across the whole
House at these measures. We ended up passing legislation not because people were happy or because they understood it but because there was broad agreement in the legislation, in discussions with Ministers and in assurances to the House that, in the spirit of trying to pass this legislation, there would be balancing measures. It is unfortunate that the partisan approach has returned with these instruments. It is important to understand that that is at the very heart of the statutory instruments.
I spent some time—after the Act had been passed, regrettably—looking at the nature of the strikes and what caused them, and analysing some of the strikes that took place in private companies and the public sector. The issue that came up during that time was that in most of these cases it was not that there were a series of workers who just militantly desired to withdraw their labour; there were massive issues of competency of management. In fact, although I did not do an exhaustive piece of research and I cannot say I necessarily had an adequate sample, in 85% of the cases that I looked at you could identify management failures, especially in the public sector, where arbitrary decisions are announced and workers are displaced because there is no consultation or preparation. In those circumstances, we have to understand that measures need balance.
To take the example of disputes at Southern rail, at the heart of that dispute is a contract that does not work. I know the Minister has been in business before. On many occasions we have seen the consequences of poor contracts. A variety of the issues at the very heart of why there is a difficulty in resolving a problem where there are problems of the competency of management are about contracts. It is wrong always to look through the wrong end of the lens. We are looking to the Government to restore the sense of balance that we believe we had when this Act was passed.
I read the Prime Minister’s speech at Davos when she talked about the notion of the rights and the voice of people who had not been adequately covered by these sorts of things, and the importance of strong institutions. In that context, I just do not understand why the institutions that the Government seem continually to want to stress, attack and undermine are those that represent working people. It is just not the right sense of balance.
It is our belief that trade unions are a force for good and equality in our society, especially in the increasingly insecure world of work. We remain fundamentally opposed to an approach that establishes restrictions on industrial action without balancing provisions to ensure that participation can be increased.
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Unions have always been careful in taking industrial action not to put people at risk or to take that action lightly. It is always a matter of last resort. Indeed, trade unions and trade union institutions have been able to look at making better mechanisms to try to create resolution—for example, the most recent TUC initiative. However, there are problems that need to be addressed. If we just look at the recent problems of workers in warehouses, be it for Sports Direct or Amazon, or even some of the reports today about a series of companies paying workers consistently under
the living wage, we see that we have a problem here. Those strong and important institutions are constantly undermined. We need greater participation in trade unions and we need balancing measures to ensure participation in ballots.
I am hugely irritated at the massive lack of evidence to justify wide-ranging restrictions on the right to strike. I am deeply concerned that the Minister even referred to the nonsense that went on in another place about trying to impose even more conditions. This is the UK equivalent of Kellyanne Conway’s “alternative facts” when talking about the number of people on the mall at President Trump’s inauguration. This is just ridiculous. These are flights of fancy.
I take issue with the notion that rebalancing rights of the public and all the things to which Ministers referred requires an 80% mandate—a Kim Jong-un-style mandate. This is not the case. The number of days lost to industrial action per year has fallen dramatically over the last 30 years. In 2015, there were only 116 stoppages as result of industrial action, 52% of stoppages taking place in the private sector, 48% in the public sector. In an economy with over 30 million people in employment, this is low. The level of disruption caused is limited. Much is short-lived. Some 60% of stoppages lasted for one, two or three days. Consistent findings have shown low numbers of managers—I think in one of the last surveys it was only 3%—reporting any disruption as a result of strikes in a workplace.
Union members take industrial action to defend their jobs and pay and conditions, not for political reasons. In 2015, 93% of working days were lost to disputes about pay, working time or redundancies. Indeed, in the vast majority of cases where the union ballots for industrial action, disputes are settled without the need for that action. In 2015 there were 503 ballots supporting strike action but just 116 stoppages.
I am very concerned. The impact assessment that accompanied the Trade Union Act predicted that the threshold for industrial action would reduce strikes by some 40% but did not analyse in any detail the nature of those strikes. Noble Lords have made the point before that if you want to entrench a strike and cause it to last longer, you want to motivate more people to vote in higher numbers. If you want to be sure of turning more disputes into strikes, this is exactly the way to go about it. That is a huge error. The Minister should give careful attention to ensuring that the Government look at the impact of this. The Bill was helped by the Select Committee, which did well to look at analysis by behavioural economists who were able to understand what the impacts were. These measures could also benefit from that. I hope that the Minister will consider that.
The Government have effectively introduced provisions that prohibit strikes in a number of cases where ILO standards suggest that they must put in place some compensatory mechanisms to ensure that workers are not disadvantaged by the loss of their right to withdraw their labour. There is no indication of the Government doing so. There is no indication of fulfilling the undertakings given in this House. We do not find this completely acceptable.
If we turn to the House of Lords Secondary Legislation Scrutiny Committee report—we acknowledge that the Minister has apologised; we are grateful for his coming to the House to give that apology—we see that the guidance is not clear. There are issues about what constitutes an important public service. There is a grey area where trade unions are invited to make a pitch to work it out—replete with all the attendant risks of court action—against the spirit and principles of the agreement we had that the Government would make it as clear as possible.
The Trades Union Congress recognised that limited improvements were made to the wording and scope of the regulations following consultation, but we are deeply concerned that the double threshold will constrain the rights of millions to exercise their right to vote. There are anomalies in the list of workers. One has been mentioned: why bus services in London but nowhere else? What concerns me more is the extension to the further education sector, because the Government are currently looking to ensure through legislation that further education colleges can go bust, which presages that the Bill to be debated here shortly may lead to terrible consequences about which the Government are not being entirely honest. I do not hold the Minister accountable for that; I hold him to account for many things, but not for the Government’s intentions in the further education sector. I should be grateful if he could give us any details that he has about that.
In the area of transport, the regulations mention station staff, guards or conductors—those people whom management can fire without any real recourse. They are the people in an important public service who are unable to withdraw their labour in those circumstances. It is ridiculous that that is where these provisions have ended up. Will the Government look at this again?
I make one particular point about the impact of the provisions. As was clearly outlined during the Act’s passage through this House, it will have a disproportionate impact on women. Research suggests that in some of these areas nearly 70% of trade union members working in these important public services are women. Many of these groups will fall into low-income bands and experience less favourable wages and conditions compared to their male counterparts. They are likely to be numerically disadvantaged by the changes and fall within the groups most in need of strong, effective representation. The weak bargaining position of an already disadvantaged group reinforces the argument for some compensatory measures. I should be very grateful if the Minister could identify whether any are forthcoming.
I turn to the trade union provisions relating to the political fund. I am grateful to my noble friend Lord Whitty for making the broader point about the context in which they have to be seen. There is a tremendous problem here. The noble Lord, Lord Foster, adequately set out what was the Government’s position when we settled this—apart from their acceptance of the provisions in the Select Committee report. There was a specific undertaking by the then Minister, Nick Boles, who wanted,
“to make sure that the transition from the pre-existing approach to a modern approach of opt-in is possible for the unions to do in a way that is successful for them and their members and not punishing in terms of costs”,
and said that the arrangements were,
“not designed to trip people up”.
The provisions here are specifically designed to trip people up. There is no other way to interpret how these measures are meant to be implemented.
It is clear that there is a strong view among those who have been following these matters that the proposed 12-month transition period is inadequate and fails to take into account the complexity involved in making the changes required. It puts unions in a terrible dilemma: not only will they have to choose between following their rules, absorbing the costs and following the law, but it makes their passage of the regulations even more difficult. Most unions will have to go outside their own rules, setting up conflicts within unions. This sets up the potential, as we have seen, for someone to cause difficulties in many different ways by using the law against unions attempting to adhere to it. That is absolutely ridiculous. There has to be an understanding not just of the complexity of the task that has been laid upon trade unions of implementing the entire Trade Union Act over this period, but of what they must do to revise their rulebooks and undertake all the administrative and other changes necessary.
I was particularly disappointed about the matter, raised by the legislative committee, of the consultation not being published. However, reading the consultation adequately makes the points. The Minister made a very good point when he said that unions knew this was happening and must have made plans and started to make provisions. That is absolutely true. They made plans and should be held to account for them and for their ability to tell someone what took place. But these plans were ignored. The consultation states the timetable the unions gave as a consensus but the provisions do not fit in with it. It states very clearly:
“Unions said they have conferences scheduled for April/May 2018”.
What has happened is absurd. Unions made provision; they told the Government what their requirements were and were ignored.
The consultation reports, moreover, that the Certification Officer,
“did not give a view on the specific timeframe for the transition period”,
nor for the new model rules. It then says:
“As the majority of unions will be submitting their own draft rules to the CO at around the same time the CO will require sufficient time to manage the approval process”,
without even specifying a time. This is setting up the unions to fail and is wrong in practice and in principle; it is a huge breach.
One just has to look at USDAW, which has put a very detailed case together to show how it may be able to implement these regulations within a proper timeframe. It falls outside these provisions. Unfortunately, I do not understand how the Government came to the view that this was how to implement the Trade Union Act. I hope the Minister is able to address these issues because I am sure that things can be done. It is certainly possible to direct the CO to look at different ways forward and to put a schedule together that identifies when unions will adequately be able to cover
their obligations while following the rules. It is possible to do this using measures that can supersede or overlay the statutory instruments. I will be very grateful if the Minister can give us an undertaking tonight that he will not put unions in such an invidious position.