It did not take long for the UK’s new Conservative government to bring forward a new round of anti-union legislation. Informed by the spirit of austerity in Europe and guided by the experience of right-wing laboratories such as Wisconsin, the Trade Union Bill is the most far-reaching attack on British trade unions since the 1980s.
The Bill and related proposals have three main aims:
• To liquidate the power of public sector trade unions, to enable the government to continue its public sector reforms and to enable it to contain public sector pay;
• To liquidate the political power of organised labour by cutting the flow of money to trade union political funds (which are necessary to promote political objects); and
• To liquidate the industrial power of unions, including restricting their ability to mount effective corporate campaigns (so called ‘leverage strategies’) against big business.
To this end, the Bill (and its proposed amendments) proposes a ban on the use of the “check-off system” (the automatic deduction of union subs from workers’ pay) in the public sector. This will affect about 3.8 million members.
But apart from hitting the financial security of trade unions, the Bill also gives the government the power to rewrite collective agreements to impose limits on the time that workplace representatives in the public sector can spend on trade union duties.
The other threat to public sector unions are the new proposals for the right to strike, which add to the body of restrictions inherited from the Thatcher years – restrictions that were never repealed by successive Labour governments between 1997 and 2010.
The most important of these is a requirement that in six ‘important public services’, strike action will be possible only with the support of at least 40 per cent of those eligible to vote (as well as a majority of those voting).
So far as political activity is concerned, the government proposes to return to the 1920s, by changing the default rules for trade union political funds.
At the moment trade unions must ballot their members every ten years for authority to continue to promote political objects. Armed with this authority, the trade union may impose a political levy of its members, from which those who object may ‘opt out’.
The government proposes to change the default rules, so that although the union members may have voted to retain political objects, they will now have to opt in the pay the political levy if they wish to do so:
• Trade unions will have three months from the date the Act comes into force to ensure that existing members opt-in. If members do not opt-in within three months their obligation to pay the political levy will lapse;
• The opting-in notice will lapse after five years and will have to be renewed by all those who have opted-in, even though the members concerned are entitled to withdraw their notice at any time.
These changes will have a devastating effect on political levy contribution levels, partly as a result of the highly prescriptive way by which the levy is to be collected. The most pessimistic (and perhaps the most realistic) estimate is that Labour party-affiliated unions will be lose about 90 per cent of their levy-paying members, with numbers declining from 3.5 million to 350,000.
Turning to the industrial power of trade unions, here we have additional restrictions on the right to strike (which apply to both private and public sector trade unions). These include requirements for additional information on the ballot paper (strike ballots are mandatory and highly regulated in the United Kingdom), two weeks notice to the employer of strike action (in addition to the week’s notice of intention to hold a strike ballot), and so on.
Two eye-catching provisions are the new ballot participation thresholds and proposals to allow agency workers to be hired as strike breakers. The former will require at least 50 per cent of those eligible to vote to do so before industrial action will be lawful (though in the six important public services, it will be necessary also for 40 per cent of those eligible to vote to do so in favour of the action). The latter proposal on agency workers has been widely condemned.
Finally, on industrial action, new restrictions on picketing will require unions to appoint a picket supervisor whose identity will have to be reported to the police. The picket supervisor will be required to wear an armband or a badge and will be required to show his or her ‘letter of authorisation’ to the police and third parties on demand. In a country where the blacklisting of trade unionists is rife, this is insensitive, to say the least.
The government has also ‘consulted’ on further proposals. Fourteen days before industrial action starts, unions will be required to give information to the employer, the police and the Trade Union Certification Officer to:
• Specify when the union intends to hold a protest or picket;
• Where it will be;
• How many people it will involve;
• Confirmation that people have been informed of the strategy;
• Whether there will be loudspeakers, props, banners etc;
• Whether it will be using social media, specifically Facebook, Twitter, blogs, setting up websites, and what those blogs and websites will set out;
• Whether other unions are involved and the steps to liaise with those unions
• That the union has informed members of the relevant laws
This is the modern equivalent of having to give notice of an intention to use the telephone, or send a letter. Any change made by the union to these plans would also have to be published. Failure to comply with these obligations would enable the Certification Officer (under new powers in the Bill) to fine the union or direct that it provides further information; moreover, any failure to publish the plans would be taken into account in any civil proceedings.
Other provisions provide for greater supervision and regulation of trade unions by the state-appointed Certification Officer, who will have extraordinary powers to initiate investigations against trade unions, to decide on the outcome of the investigations he or she has initiated, and to impose a fine on the trade union he or she has decided against.
The Certification Officer is to be prosecutor, judge and executioner in his or her own cause, his or her office to be funded by a new tax on trade unions.
Authoritarian in tone and content, the Bill is ideologically-driven rather than evidence-led, and has consequently drawn strong criticism from the government’s own Regulatory Policy Committee as being ‘not fit for purpose’.
In launching the biggest assault against free trade unionism for a generation, the Tories have revealed their contempt for international law, and in particular ILO Conventions 87, 98 and 151, about which the UK’s Trades Union Congress (TUC) has already complained to the ILO’s Committee of Experts.
The fear now, however, is that other governments will follow the British example in what has been in recent years a ratcheting down of labour standards in many countries in the ‘developed’ world. International law seems to be no obstacle, the casual indifference to which is a matter of some anxiety, in view of the importance of the rule of law as a fundamental constitutional principle – a principle increasingly honoured in the breach.