The Committee consisted of the following Members:
Chairs: † Sir Edward Leigh, Sir Alan Meale
† Argar, Edward (Charnwood) (Con)
† Barclay, Stephen (North East Cambridgeshire) (Con)
† Blenkinsop, Tom (Middlesbrough South and East Cleveland) (Lab)
† Boles, Nick (Minister for Skills)
† Cameron, Dr Lisa (East Kilbride, Strathaven and Lesmahagow) (SNP)
† Cartlidge, James (South Suffolk) (Con)
† Doughty, Stephen (Cardiff South and Penarth) (Lab/Co-op)
† Elliott, Julie (Sunderland Central) (Lab)
† Ghani, Nusrat (Wealden) (Con)
† Howell, John (Henley) (Con)
† Kennedy, Seema (South Ribble) (Con)
† Mearns, Ian (Gateshead) (Lab)
† Morden, Jessica (Newport East) (Lab)
† Morris, Anne Marie (Newton Abbot) (Con)
† Prentis, Victoria (Banbury) (Con)
† Stephens, Chris (Glasgow South West) (SNP)
† Stevens, Jo (Cardiff Central) (Lab)
† Sunak, Rishi (Richmond (Yorks)) (Con)
Glenn McKee, Committee Clerk
† attended the Committee
John Cridland, Director General, Confederation of British Industry
Dr Adam Marshall, Executive Director of Policy and External Affairs, British Chambers of Commerce
David Martin, Chief Executive, Arriva plc
Roy Rickhuss, General Secretary, Community
John Hannett, General Secretary, Union of Shop, Distributive and Allied Workers
Stephen Cavalier, Chief Executive, Thompsons Solicitors
Mike Emmott, Senior Policy Adviser, Chartered Institute of Personnel and Development
Public Bill Committee
Tuesday 13 October 2015
[Sir Edward Leigh in the Chair]
Trade Union Bill
Good morning, ladies and gentlemen. I have a few preliminary points. Welcome to this Bill Committee. Today, we will consider the programme motion on the amendment paper. We will then consider a motion to allow us to deliberate in private about our questions before the oral evidence sessions. We will then have a motion to enable the reporting of written evidence for publication. Please turn off your mobile phones. Banned substances such as tea and coffee are not allowed. I am sure that, in view of the time available, we can take these early motions without debate. As we are now sitting in a public session, it might be a good point for anyone who wishes to make a declaration of interest to do so now.
I declare my membership of Unite the union and my trade union membership and representation as a senior rep over the past 14 years.
I am a former Community trade union officer, current Community trade union member and chair of the Community parliamentary group.
Prior to the election in May, I was a director and partner of Thompsons Solicitors LLP, which is giving evidence to the Committee. I am also the partner of the chief executive of Thompsons, who is giving evidence to the Committee. Clients of my former firm included the Royal College of Midwives, GMB, Unison and Unite, which are giving evidence to the Committee. Finally, I am a member of GMB and of Unison.
I am a member of the GMB union, and I draw attention to my declaration on the register of interests.
(1) the Committee shall (in addition to its first meeting at 9.25am on Tuesday 13 October) meet—
(a) at 2.00 pm on Tuesday 13 October;
(b) at 11.30am and 2.00pm on Thursday 15 October;
(c) at 9.25am and 2.00 pm on Tuesday 20 October;
(d) at 11.30am and 2.00 pm on Thursday 22 October;
(e) at 9.25am and 2.00 pm on Tuesday 27 October;
(2) the Committee shall hear oral evidence in accordance with the following Table:
Tuesday 13 October
Until no later than 10.15 am
Confederation of British Industry; British Chamber of Commerce; Arriva
Tuesday 13 October
Until no later than
Community; Union of Shop, Distributive and Allied Workers
Tuesday 13 October
Until no later than 11.15 am
Thompsons Solicitors; Chartered Institute of Personnel and Development
Tuesday 13 October
Until no later than 2.30 pm
Tuesday 13 October
Until no later than 3.15 pm
London Travel Watch; Transport Focus
Tuesday 13 October
Until no later than 3.45 pm
Amnesty; Liberty; Blacklist Support Group
Tuesday 13 October
Until no later than 4.15 pm
TaxPayers’ Alliance; Abellio
Tuesday 13 October
Until no later than 5.00 pm
Welsh Government; Scottish Government; Scottish Trade Union Congress
Thursday 15 October
Until no later than 12 noon
National Police Chiefs’ Council; Police Federation
Thursday 15 October
Until no later than 12.30 pm
SITA UK; London Fire Brigade
Thursday 15 October
Until no later than 1.00 pm
Trade Union and Labour Party Liaison
Thursday 15 October
Until no later than 2.30 pm
Professor Keith Ewing, Professor of Public Law, King’s College London
Thursday 15 October
Until no later than 3.00 pm
Royal College of Nursing; Royal College of Midwives; Public and Commercial Services Union; Fire Brigades Union
Thursday 15 October
Until no later than 4.15 pm
Unite; Unison; GMB; Trade Union Congress
Thursday 15 October
Until no later than 5.00 pm
Department for Business, Innovation and Skills; Cabinet Office
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 14; Schedules 1 and 2; Clauses 15 and 16; Schedule 3; Clauses 17 and 18; Schedule 4; Clauses 19 to 22; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 27 October. —(Nick Boles.)
On the basis of the motion, the deadline for amendments to be considered at the first line-by-line sittings of the Committee on 20 October is Thursday 15 October.
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Nick Boles.)
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Nick Boles.)
Copies of written evidence that the Committee receives will be made available in the Committee Room. We will now go briefly into a private session—I apologise to the people sitting in the Public Gallery—to decide our line of questioning.
The Committee deliberated in private.
Examination of Witnesses
John Cridland, Dr Adam Marshall and David Martin gave evidence.
Good morning and welcome to the Trade Union Bill. We are joined by John Cridland, who is the director general of the Confederation of British Industry, Dr Adam Marshall, who is executive director of policy and external affairs at the British Chambers of Commerce, and David Martin, who is chief executive of Arriva plc. This session will last until 10.15 am, so it will be fairly snappy. We will go from Opposition to Government side, and Members will take this as they wish.
Q 1 First, may I say it is a pleasure to serve under your chairmanship, Sir Edward? I welcome all members of the Committee to the evidence sessions and thank the witnesses for making themselves available this morning.
I have a few questions. My first is to the CBI and the BCC. The CBI specifically says in its written evidence that
“Business backs plans to modernise our industrial relations framework.”
Can you explain whether you think there is a unified view across business and industry in support of all the measures in the Bill? Given that you specifically refer to modernisation, do you—perhaps the BCC can answer this as well—support measures to introduce e-balloting and secure workplace balloting to increase participation in the most modern ways possible?
John Cridland: Thank you for that question. I believe the CBI does support the Bill, and I think the business community as a whole supports the Bill. Increasingly, the positive and constructive employee relations that we have built up over the economy are based on direct engagement with the workforce. We believe that there is a valuable role for trade unions but that the nature of trade union law needs to reflect the modern workplace in the way that I described—direct engagement.
I think the provisions in the Bill that are of most concern to businesses are those that ensure that where there is strike action—particularly in public utilities, education and health—it reflects a significant voice from the workforce. The fact that we are coming in with provisions similar to those in the statutory trade union recognition legislation, which has worked well and effectively for a number of years, reflects the sort of mandate of support that business, if it is to be significantly disrupted by the action I described, needs to see reflected. In principle, I think these are the right provisions.
On your particular question of e-balloting, we do not think at the moment the evidence is there that e-balloting can be secure and effective. We do not have a problem in principle with e-balloting, but it is probably premature to have it available.
Q 2 May I follow up on that point? Even though e-balloting is used by a number of banks, building societies and other organisations, you do not believe that it is secure.
John Cridland: The need to protect the privacy of an individual trade union member voting is important to their employer, and we would want more assurance that that could be effectively conducted. Clearly, even in relation to some of the professional services that you just described, there are significant issues about data privacy.
Dr Adam Marshall: Thank you for the opportunity to be here this morning and to answer the question. It is our belief—fairly similar to that of my colleague from the CBI—that the right to withhold labour needs to be balanced in its application with the right of others to continue to work or to receive essential services, so we support strongly the provisions in the Bill that raise thresholds, for example, and ensure that essential public services are subjected to additional thresholds. It is our belief, however, that questions around the method of balloting are probably for the Government, the trade unions and the Opposition to have a debate over, rather than for us in business to have a debate over. Our concern is principally about the elements of the Bill that help to raise thresholds and ensure that the right to work is balanced with the right to withhold labour.
Q 3 Do you accept that industrial action is at a 30-year low? Therefore, why is there a need to tighten up the legislation in such a draconian way as the Bill proposes?
Dr Adam Marshall: I think the statistics measure the number of days lost directly to industrial action. They do not measure the number of days lost indirectly because of industrial action, and what our members have asked us to represent is that those days lost to industrial action are significant. They affect business, productivity, the right of individuals to earn a living and access to public services. Were one able to make the argument that the number of days lost both directly and indirectly had gone down, that might be different, but a lot of people are significantly affected by strike action, hence our support for those provisions in the Bill to raise thresholds.
Q 4 Mr Martin, can you tell us about your experience of industrial relations? There have been a number of high-profile cases where there have been findings against Arriva in its relations with union members and others. Can you tell us a little bit about your company’s experience and why you think this Bill is so necessary?
David Martin: Good morning. Arriva recognises that employees have the right to belong to trade unions, and we recognise a number of different trade unions. We pride ourselves totally on the fact that we are there to deliver highly satisfied employees to deliver services to highly satisfied passengers. We carry about 6 million people a day across the UK on buses and trains.
Frankly, I am extremely proud of the fact that we work very closely with our trade unions on the overall strategic direction of the business. We paint out and include them as a deliverer in the context of developing the strategy over a three-year or five-year timeframe, and that has worked extremely well for us. We all recognise the issues in the overall UK economy and the global economy, and the impact of fuel prices and so on. The ability to work closely with our trade unions has generated a situation where we have had a very low level of disputes over the past 30 years, certainly to my knowledge.
The only interesting disputes, which lead me to support the Bill, have been the London bus strikes this year and the issues in London in 2012 surrounding the Olympics, where the whole issue was union-led rather than membership-led. It was not a dispute within the membership. The fact that 17% of my staff voted and 50% of the buses did not run in London over that period of time shows us that we need a failsafe, and this Bill delivers that failsafe. In the event that industrial relations issues arise, there needs to be a clear mandate from the trade unions.
Q 5 Do you accept broadly, though, that the vast majority of strikes in the transport sector have met the thresholds as envisaged by this Bill, including those in the rail and bus sectors?
David Martin: In the rail sector, yes, I would say that they probably have, so I do not think that it will make that much difference. In the bus sector, no; it is very different.
I do not want to be too formal and restrict people to one question, and the main Opposition spokesman needs some latitude, but just keep an eye on the time everybody, and if you can just ask one question, fine. All three witnesses do not have to answer everybody; you can divide it up between yourselves.
Q 6 It is a great pleasure to serve under your chairmanship, Sir Edward. The Bill has already been described by Mr Doughty as “draconian”. Can you give me your impression of how much this is a fundamental change to the way that trade unions operate and how much you think it is more of a step-by-step increase in the modernisation of the trade union movement?
John Cridland: I echo Mr Martin’s comment about a failsafe. In most workplaces, relations are harmonious. Most workplaces are now not unionised, but in the unionised part of workplaces, most relationships are harmonious, and employers recognise that. There is a small minority of situations, which we have already described, where many people—businesses and consumers —are significantly disrupted. If that is to happen, and if the right to strike is to be exercised, I think it is reasonable, given the level of disruption involved, that there is clear evidence of a significant mandate. That is a modernisation of a system that is broadly working well.
Dr Adam Marshall: I would probably agree with my colleague and simply add that having an expiry for ballot mandates is an important thing in this day and age, given that we are in a more complex world for both business and industrial relations than perhaps ever before. Having a clear mandate renewed on a regular basis is very important.
David Martin: I again echo the comments. I can only refer to what I said earlier—that in the event of a breakdown in industrial relations, which does not happen very often, let us have a very clear mandate that reflects the wishes of the membership as a whole, and let us have a situation where we can minimise the overall impact on the travelling public and the UK economy at the same time.
Q 7 It is a pleasure to serve under your chairmanship, Sir Edward. My question is for the CBI. First, I was a bit unclear in your answer to my colleague about secure workplace balloting. You have said that trade union recognition ballots work well, but in trade union recognition ballots there is scope for secure workplace balloting. Can you clarify that?
Secondly, in your submission, you say that you are looking to extend the notice periods from seven days to 14 days on either side. That is 28 days in total, even without a ballot period. Do you not think that seven days’ notice to ballot and seven days’ notice to strike, with a period in between of at least 14 working days, is sufficient for a business to look at what they need to do and the steps that need to take place for disruption and any industrial action?
John Cridland: Thank you for the question. On your first point, the analogy I was using for trade union recognition was with ballot majorities. That is a relevant point, I think, about the ballot majorities and thresholds that the Government are proposing for the Bill. The current notice periods are inadequate. Many corporate members of the CBI faced with these situations simply do not feel that they have enough time to provide information and to put in place mitigating measures. I think the business community does want to see longer notice periods.
Q 8 Part of the difficulty, though, is that the notice for compulsory redundancy is now 45 days. The danger of the Bill—I am curious to hear your views on this—is that trade unions will have to ballot right away when an employer issues a statutory redundancy notice, because it is now 45 days. Given the timescale, does it not worry you that there will actually be more balloting, rather than less?
John Cridland: For employers, we are trying to get the principle of clear consent. If a trade union and its members are going to withdraw their labour, which is clearly their right, we want to see evidence of consent in those situations. The difficulty with the current legislation is that it can leave employers faced with a situation where there is a low turnout—we have already heard the situation that Dr Marshall described of a ballot, prior to a situation where the ballot was some period before. These are not giving clear signals to the employer. So the spirit of our evidence is, “Can we have a system that both in time and in signalling makes it much clearer to the employers the nature of the dispute, and allows the employer to deal with that?” That is what we are after.
Q 9It is a pleasure to serve under your chairmanship, Sir Edward. Dr Marshall, you raised the point about productivity, and I just want to ask about some of the wider economic impact of the Bill, if it is passed—in particular, the impact on investment, including inward investment, and on making the UK an attractive place to invest, and perhaps, Mr Martin, in terms of your industry, on whether having greater confidence about industrial relations will enable you to have stronger management and therefore attract more investment into it.
Dr Adam Marshall: Many thanks for the question. Undoubtedly, businesses that believe that the framework for industrial relations is modern and secure will be more confident when it becomes time to invest, particularly in those industries, such as the one represented by Mr Martin, that are affected by some of the enhanced thresholds that this Bill puts in place.
We have been very supportive of the definition of which areas should fall under those enhanced thresholds, in part because those businesses are extremely capital-intensive and do things that are extremely important to the functioning of the broader business community. So whether we are talking about transport, the delivery of energy supplies and indeed—vis-à-vis the supply of future skills—whether we are talking about the education sector, these are things that have a huge knock-on effect on the rest of the economy. So we believe that these measures are proportionate to help with that particular challenge.
Vis-à-vis our attractiveness to overseas businesses, one only needs to look at the media impact of transport strikes in London—how they are reported—and what you see are the knock-on effects on the economy of this particular area, and of course we have seen that played out in other cities as well, right across the UK. That has a deterrent effect on would-be investors, and I think that we would see that deterrent effect being lessened with a modernised system.
Q 10 Mr Martin has obviously had some experience of industrial action. If his management were more confident in the future that there would be less disruption, would that enable his company to attract more investment, to expand and all those things that we want to see across industry?
David Martin: Undoubtedly. It is an obvious statement but investment is all about confidence, and confidence breeds a situation where, from my viewpoint, effective trade union relationships and effective employee relations are a fundamental part of what we do. We employ 60,000 people all across Europe—25,000 people in the UK—and those relations are fundamental to us. And we deliver passenger journeys to more than 2 billion people a year, so we are fundamentally a massive part of overall GDP in local areas and in national areas. Clearly, if confidence is higher, then investment undoubtedly will reflect that.
Would that be a major issue? Frankly, I would say that it would not be, because it would not stop us investing. It is up to us as a management team to manage our industrial relations practices, but if it all goes wrong and it comes to it, I think it is absolutely fair that a proper mandate is there with our trade union colleagues to leverage their position on behalf of the employees.
If you want to ask a question, try to give us plenty of warning, so that we can fit you all in. It is going well at the moment; I hope that we will get everyone in.
Q 11 It is a pleasure to serve under your chairmanship, Sir Edward.
From the perspective of the three witnesses, what are the main drivers of supporting this Bill? We have heard that industrial action involving strike action is at a 30-year low, but the witness from the British Chambers of Commerce has said that industrial action has an impact, for instance, on productivity. Does strike action have a detrimental impact on productivity that is as bad as other factors in the economy, for instance, bearing in mind that, overall, British workers are about 25% behind French workers in terms of productivity? Is it factors such as industrial action that are causing that 25% gap? I doubt it, given the 30-year low in strike action. I also wonder whether you are really supporting this Bill just because it is an opportunist-type thing—the opportunity presents itself, and therefore we might as well go gung-ho and support it.
You can answer any way you want.
David Martin: I will happily respond to that one. In my sector, which is the delivery of a public service, passengers rely on buses or trains to get to work, school, leisure activities and retail outlets, where they spend money. I think it is fundamentally wrong if there is not a clear mandate from the workforce when taking up a dispute with the employer. Assuming that the legislation goes through, the modernisation of the process to provide clarity and a practical, working situation can only be beneficial.
Q 12 But in your evidence you gave two London examples. Are we using a national sledgehammer to crack a London nut?
David Martin: From my perspective, it is a failsafe. If things go wrong and disputes arise, having a strong trade union relationship, and a strong trade union leadership with a strong mandate, leverages the employee’s position to negotiate with the employer. I think it is a win-win, frankly.
John Cridland: The concern in the business community has always been about disruption. I have the privilege of speaking for an organisation that represents 190,000 companies, and clearly the overwhelming majority of those companies are small. As small businesses, they are consumers, too. When getting their products to market and their employees to work, disruption is the factor that impacts on their business. That has been CBI policy for more than five years, so it is not opportunistic. We have advocated this sensible modernisation for more than five years.
Q 13 Do you agree that the CBI has a major concern about the impact on productivity and that there are clearly other factors in the economy that are impacting more on productivity at the moment than industrial action?
John Cridland: I would not underestimate the impact of significant disruption in the running of an economy on the overall performance of the economy, but the argument I have made is one primarily related to disruption. I agree that productivity relates to a range of factors. It is a cocktail of factors, of which this is only one.
Dr Adam Marshall: I would simply add that the vast majority of my members are in 52 accredited chambers of commerce the length and breadth of the United Kingdom outside the M25, so business support for some of the measures in the Bill is not a London phenomenon.
On productivity, I raised the statistics very early because arguments are made about this Bill using only statistics that count direct days lost to industrial action. Had National Statistics been collecting information on the indirect effects of industrial action for many years, we could have a much more informed argument. I know that when millions of people are out of the workplace because they cannot get to work, and when millions of people are at home because their children are out of school, for example, there will be a productivity impact. I completely agree with you that that does not mean that the productivity per hour gap between the average British worker and the average French worker is entirely down to this, but there is certainly an impact.
Q 14 In the aftermath of this session, will you write to us to present us with the evidence you have to back up those statements?
Dr Adam Marshall: I would be very happy to look at what evidence is available. As I say, the statistics collected by National Statistics are not acceptable.
Q 15 Thank you all very much for being here. I am sure that everyone here agrees that the intimidation of non-striking workers and illegal activity on picket lines is wrong and that it is concerning to read reports of that. What are your experiences of picketing from an employer perspective? What are your thoughts on the current status of the code of practice and the provisions in the Bill to put that on a statutory footing? Do you think it does enough to reduce the concerns that some of us might have about behaviour in this area?
John Cridland: The principal concern of business is where picketing action does not fit in with the code. Generally, I think the code works well. The Bill contains a sensible provision to bring legal recognition to the part of the code that it covers, and I think the major provision in the Bill that would impact on picketing is the requirement to have an official who is clearly responsible, and who the employer knows to be responsible, for the actions of the picket line, which is something that employers welcome. I think that is a relatively moderate change to the existing legislation. It builds on a code that has served us well.
Q 16 As ever, it is a pleasure to serve under your chairmanship, Sir Edward.
Dr Marshall, I want to come back to something you have just said. What evidence are you referring to when you talk about all the indirect days lost? You have referred to that quite considerably in your evidence, but you then said that you looked to see what there is. Do you have any evidence?
You have also talked at length about what your members think. Can you advise the Committee on what surveys or interaction you have had with your members on the Bill and what came out as their top five priorities? Do the features in the Bill figure in that?
Dr Adam Marshall: Thank you for the question. The point that I have been trying to make and will make again is this: I would very much like the Office for National Statistics to begin collecting more data on the indirect impact of industrial action on the wider economy.
Q 19 To follow that up, you have said at length in all your evidence on this point that you are representing the views of your membership on this, but how can you say that if you have not surveyed members and asked them the question?
Dr Adam Marshall: We have a range of submissions and a range of comments made to us by chamber councils up and down the country. Like other business organisations, we take both formal and informal soundings of our businesses and we have done so on an informal basis.
Normally, we would go to the Government and then to Labour, but I do not want to be too formal. If somebody is bursting to ask a really telling supplementary, they can come in. I think Steve Doughty is burning to ask a question.
Q 27 Just to follow on this point specifically, I am also concerned about the lack of evidence. We have a bit of evidence here that findings from the 2011 workplace employment relations survey revealed that despite an increase in public sector strikes in 2010-11, only 3% of managers were experiencing any disruption as a result of strikes in another workplace. So that is a piece of evidence and I wonder if you or the CBI have any comments on that: very low levels of industrial action and then very low levels of disruption shown in an actual survey, actually evidenced in figures, unlike some of the comments that we have heard from the panel.
John Cridland: If you think of a strike in education, for example, like last year with schools, most employees in most workplaces in the affected area have to provide alternative childcare arrangements. How is that caught in national surveys? It is very difficult to capture—a point that Dr Marshall made. How is that aggregated in employer surveys? It is very difficult.
Q 28 With respect, you are saying that it is very difficult, but you and Dr Marshall are making some very broad statements about this issue without having evidence to back them up. That is what I do not understand. It is a very broad assertion to make.
John Cridland: I think it is just a law of common sense that if a school is closed, every working parent in that school has to make alternative arrangements.
We had better move on because the questioners are piling in.
Q 30 You talked about work environments modernising and work practices modernising. I think one of the big changes in the last decade or so is the fact that people want more confidence in companies and public bodies, which means that they have to be more transparent and accountable. One of the clauses in the Bill wants to bring trade union practice up to date with existing best practices as public bodies have to publish all spending over £500. Do you agree with that?
John Cridland: The CBI has concentrated on the core parts of the Bill that most affect our membership, which are the strike thresholds and the confidence around strike arrangements. We support the Bill as a whole but we would leave those other arrangements for the Government to determine through Parliament and the certification officer. Those are probably not the aspects of the Bill that most employers would have at the front of their minds.
Q 31 Going back to Stephen’s question about the clause, where you are saying that you want trade unions to support a Bill that has a clause providing that there should be more transparency on trade union spending. That is possibly one of the areas in this country which shows the most transparency on spending. You have then come here, and Dr Marshall has given evidence to this Committee, providing no evidence for your statements. Do you think that may undermine your argument in support of the Bill? You are asking for that type of legislation to be put through, but we still have not been given any objective evidence.
Going back to an earlier comment, Mr Cridland, you talked about concern about disruption and said that, to provide more confidence, you wanted to support this Bill to stop potential trade union actions, yet you also said that it was too difficult to investigate an illustrative example about striking workers in the education sector. Your colleague, Dr Marshall, also said that those investigations had not been conducted. What is the Committee supposed to believe? We are getting subjective statements, but not one of you can show us any objective investigation into your own members’ views on this matter.
John Cridland: With respect, I think that there are two separate points there. There is the mandate that we have to speak for the CBI as a representative body of the views of our companies. There is a separate issue of how the Office for National Statistics captures the impact of industrial action on the economy. I am responsible for the first. I am not responsible for the second.
Q 32 But you have not asked your members at all or done any objective studies among your own members, either of you. Has the CBI?
John Cridland: The CBI operates under a royal charter. We are a democratic body. We have elected regional councils. Those councils formulate the opinion of the CBI. We have 140 trade associations, which contribute to that policy-making process. We formulate a point of view which is reflected in the submission we have made on the Bill. That is a process of policy formulation, where employers judge the impact on the economy of disruption and come to a view on how we can promote positive industrial relations.
Q 33 Here is a question that you may have asked your members. At the moment I do not think that you have asked your members any question whatever, but here is a question. Have you asked your members about the potential for the rise in wildcat strike action by non-unionised workforces?
John Cridland: Yes, we have discussed wildcat action. There is already concern in the business—
Q 35 What would your interpretation be in relation to this Bill?
John Cridland: The overwhelming view of British business as formulated by our own policy and decision-making process is that—using the phrase that Mr Martin described—it is sensible to provide a failsafe against a small number of pieces of industrial action where there is not currently a strong enough mandate from the workforce through trade union ballot. That is the part of the Bill that we are most concerned about.
Q 36 So there is no concern about rising wildcat action at all?
John Cridland: Yes. We discuss those issues, we look at the implications and we come—as an independent organisation entitled to form its point of view—to a conclusion. I reiterate that we were advocating this change five years before this Government brought it forward. This is not something where we have simply come to a conclusion on the basis of the draft proposals of the current Government.
Let him answer the question.
John Cridland: It is quite different from the Office for National Statistics having information on the impact on the economy.
Q 40 It is a pleasure to serve under your chairmanship, Sir Edward. Thank you to the witnesses. We have spoken about certainty and clarity in business. Of course, the most essential component of any business is the employees. Will the clear description of the trade dispute and the planned industrial action, which will now appear on the ballot papers, provide more clarity for union members and help them to know what they are or are not voting for?
Dr Adam Marshall: I am happy to begin on that. We support clauses 4 to 6 of the Bill and the requirement for greater information so that everyone can have that information. The point has been made very well through the course of this process that a very small proportion of the private sector workforce are unionised, so this impacts only a small minority of my membership but the point has been expressed to us that they want employees who are being balloted on the possibility of strike action to have maximum information available to them in order to take a decision on the way that they choose to vote.
David Martin: I have nothing to add. Speaking on behalf of my organisation, I do not know the exact percentage. Recognition reflects about 98% of my workforce, I would think. It is not something that I have delved into.
Q 42 So you think that it is better for them to understand exactly what they are voting for—to give everybody in a business clarity. That would help to cement better relations between employers and employees.
David Martin: Absolutely. Communication with the workforce is fundamental, from an employer viewpoint and a trade union viewpoint.
Q 43 Can I ask the CBI and the British Chambers of Commerce, are your members concerned about the proposals in the Bill that mean that details of disputes between employers and unions will be posted on the certification officer’s website?
John Cridland: No, we believe that transparency would be helpful in providing the clarity that I gave in my previous answer.
Dr Adam Marshall: Our members have expressed opinions on clauses 2 to 8 rather than clauses 9 to 17—the clauses that reflect directly to the duties of the certification officer in that respect.
Q 44 So have you consulted with your members on this at all?
Dr Adam Marshall: They have said to us, through our own policy-making processes, that these are matters that they did not wish to comment on. They wished to restrict their comments to a different portion of the Bill.
John Cridland: My answer was that I am comfortable—the CBI is comfortable—with the proposed changes.
Q 46 It is a pleasure to serve under your chairmanship, Sir Edward. As a former Government lawyer, compliance is always of enormous interest to me. Do you feel—this is for all of you—that the enhancements to the role of certification officer are really sufficient and that they will make a difference?
John Cridland: We look to harmonious employee relations. It is very important to us that we work with recognised trade unions and that we work strenuously, as trade unions nearly always do, to avoid these strikes. If there are strikes, they need to be properly and fairly regulated. Compliance is therefore important. You cannot have rules that are not properly enforced. We think these are sensible provisions to strengthen the compliance requirements but I put my answer to your question, if you will allow me, in the context that I have because I think we all want to see these rules applied in the smallest possible number of circumstances.
Dr Adam Marshall: I have nothing to add given my answer to the previous question.
David Martin: Likewise, it is not a provision that I understand in full detail. I need to spend a lot more time to understand the implications of it, so I have nothing to add.
Q 48 Is it reasonable that clause 13 would give a Minister the power to overrule agreements made by trade unions and employers about the appropriate amount of facility time? Are your members concerned that that could undermine partnership working in the workplace and lead to further disruption?
John Cridland: If I may answer that, it is certainly the case that facility time is best agreed between employers and trade unions. It is primarily an issue of concern in the public sector, not in the private sector. This is not a matter that the employers in the private sector that I speak for have strong views on.
David Martin: I would be quite adamant that I would not want to see it cut across the existing effective working relationships that have built between trade unions, employees and employers.
Dr Adam Marshall: We have a very small number of members whom this affects, so we do not have a mandate to come forward with comments on that.
Q 49 You spoke about the importance of communication with your workers and harmonious employee relations. Have you consulted the workforce at all about their views?
David Martin: Not in its entirety. I have certainly had conversations with the full-time representatives that we have within the organisation in this context. I could not say that I have consulted 25,000 people in the UK.
Q 50 I just want to push John on whom he is representing. I would contend that there are actually a number of voices in business and industry who are concerned that the Bill will do the opposite and will promote less positive industrial relations, which could have an impact on productivity and the ability to negotiate. A whole series of measures in the Bill could foster dissent rather than the agreements and constructive relationships that lead to avoiding industrial action in the first place. I was on a panel with a CBI representative a couple of weeks ago and a representative of a major industrial employers’ organisation said, “Let’s put it this way: we didn’t call for this Bill.” Could you just explain, very clearly, whom you are representing and whether there is an absolute consensus of view across business and industry that this is a good thing for business and the economy as a whole?
After this one brisk answer, we have one more question and we must then wrap up on time.
John Cridland: I do appreciate that there are a variety of organisations and a variety of voices speaking for the business community. The CBI is an important one, but it is not exclusively the voice of business. Our own organisation has consulted fully and widely through our open and transparent governance processes, and this is the view that we have come to, as reflected in both my written and oral evidence.
Q 51 Thank you for allowing me to ask a question just before the end, Sir Edward.
You have all rightly made clear your views about the important and positive role that you see trade unions playing. Equally, you have touched on the impact that stoppages have in terms of the economy, productivity and people’s lives and how it disrupts them. I agree that the ONS being able to collect statistics around indirect impact would be a benefit to all of us, wherever one stands in this debate, but it is clear and self-evident that any stoppage in a vital public service will inevitably have an impact indirectly on days lost.
As a final, broad-brush question, do you think that, given all that and given the discussions that we have already had with you, the Bill strikes the right balance between the rights of unions and members and a recognition of their positive role and the rights of businesses and the public to get on with working and producing?
David Martin: From my perspective, that balance is the absolute key to ensuring that we maximise and protect the interests of employees and passengers alike. In many respects, the Bill itself, if it comes into practice, has to be extremely transparent, very clear, very workable and not subject to legal disputes at all stages of anything happening in the future.
Thank you, gentlemen. That concludes our evidence session with you. Thank you for answering our questions in such a competent and brisk way. We are very grateful.
Examination of Witnesses
Roy Rickhuss and John Hannett gave evidence.
Good morning. Our next session will last for half an hour. We have got Roy Rickhuss, general secretary of Community, and John Hannett, general secretary of the Union of Shop, Distributive and Allied Workers. You are very welcome to our morning session. Members will ask you questions, and they may ask you a supplementary question—it is quite relaxed. We will try to get everyone in who wants to ask you a question in the next half an hour.
Q 52 A question first to Roy and then one to John. In terms of the steel industry’s history and industrial relations in the industry as a whole over the past 20 years, where do you think positive industrial relations have helped for both employees and employers in what are clearly difficult times? I particularly commend your work on the situation at SSI, but will you speak in general terms about what benefits a positive relationship between trade unions and employers can have in a crucial industry?
Roy Rickhuss: Perhaps I should start by explaining that my union, Community, was formed in 2004 as a merger between the Iron and Steel Trades Confederation and the Knitwear, Footwear and Apparel Trades. The ISTC was predominantly the steelworkers’ union and KFAT was predominantly textile and footwear. My background is within the steel industry. I was a steelworker when I left school right up until when I started to work full time for the union.
To answer the question on the steel industry, since 1980—incidentally, that was probably when we had the last major dispute in the industry and that was a good many years ago, so we have not done too badly in terms of industrial relations. When you look at and consider the massive changes that have gone on not just in the steel industry but in a lot of our traditional industries that are now in the private sector, we have seen massive changes: job losses; restructuring; reorganisations; flexible working; upskilling; and team working. Change is constant, and throughout that process, my union, like other unions, has been at the forefront of ensuring that that has happened smoothly, in the best interests of employees and the employer, and I think we have done a pretty good job.
I think we have also done a pretty good job in terms of trying to protect the industry. You mentioned briefly the SSI situation, and that is an absolute tragedy. We have a steel summit on Friday where we are meeting with the Minister, Anna Soubry, and we are doing everything we can to try to save steelmaking on Teesside. I do not know whether that answers your question, Stephen, but clearly we would not be where we are today in terms of having any steel industry left in the UK if it was not for the good industrial relations that we have enjoyed for 30 or 40 years.
Q 53 Do you think that the Bill risks worsening industrial relations across the economy as a whole?
Roy Rickhuss: I do, because industrial relations—the previous speaker was interesting—is about getting the balance right. At the moment, if I am honest, I think the balance is not right; I think it is probably weighted slightly on the employer’s side already. So we need that balance and we need good industrial relations.
We have been calling on the Government for some time to look at reviewing and overhauling industrial relations in this country and trying to develop more of a partnership approach where employee representatives and trade unions work in a positive way with good employers, because, at the end of the day, that is what we want. I have never met anybody in my career who does not want to work for a successful company or be part of a successful business, because that gives stability and job security and allows people to do the things in their lives that they want to do. So it is about getting the balance right and working in partnership.
Q 54 John, as you represent a significant number of members in a diffuse sector, what are the Bill’s specific problems and challenges for your members? I wonder in particular what your views are about the Government’s proposals on check-off.
John Hannett: USDAW is the fourth largest union, as you may know, with more than 440,000 members. In fact, it has grown by 100,000 members in the past 10 years. I have spent the past 12 years as general secretary, and seven before as deputy general secretary, promoting the partnership model that Roy referred to. The Bill, in a sense, feels to me more like a control mechanism than a fostering of good industrial relations. What do I mean by that? If you look at the agreement we have with some of the biggest private sector companies, those agreements and those relationships have been informed by, and developed based on, trust, understanding the business and honest representation.
The problem with the Bill is that it sounds like something that is highly political and intended to control behaviour more than foster good industrial relations. We have the biggest private sector partnership agreement in the country, with more than 180,000 members in one of the most successful businesses. All those negotiations take place in a spirit of trust, of building up the relationship and of understanding the sector.
In terms of check-off, this is interesting. If you look at the agreements we have within the biggest organisations in the country, these check-off arrangements have worked. They have been negotiated with those individual companies. To be perfectly honest, without check-off, it would be extremely difficult for a union like mine, which operates in a seven-day, 24-hour sector, where people are working short hours and long hours, and trying to collect union contributions. There is also something significant about check-off. It is a kind of identity between the employer and the union that we co-exist and work together. It is part of their commitment to the union, as we commit to some of the changes.
Roy referred to the many, many changes he has had to oversee. The biggest company we have the agreement with now is going through difficult times. The union is here now, operating and dealing with those issues—not just the good times, but the difficult times too. Is the Bill intended to help industrial relations? I have not seen the evidence. The best way to improve industrial relations is between the employer and the unions where they are represented, in consultation with their employees.
Q 55 Can I move you on to some questions about the political levy? It seems to me that there is a fundamental principle of fairness in this. Voluntary funds, which is what the political levy is, should not be taken out of someone’s pay packet without their consent. Do you agree with that?
John Hannett: My union has a very clear position on this that has been in place since the union merged in 1947. First, our rulebook is very explicit about the right to be paying the political levy. On our membership form, when somebody joins the trade union, there is a very explicit clause that says, “If you do not wish to pay the levy, you do not have to.” Some of our members exercise that right, so we already cover it with our form and we are transparent about this in all our communications with our members.
Q 56 Do you think that offers the sort of consumer protection that others outside of the trade union movement would expect in being able to deal with the political levy?
Roy Rickhuss: It is a fair question, but I also believe that trade unions are so transparent and democratic—we are probably the most democratic organisations in the country. Our members decide whether they want to have a political fund. Our rulebook and our constitution is voted on by our members—we have to re-ballot them every 10 years, but we have rule changes in between. We have conferences where members can put forward motions and debate issues, so I really do think, democratically, that the fact we have a political fund and we use it for political campaigning is well understood by our members. They vote for it positively time and time again, so I think we are covered. I fully agree with John—people are aware of the unions’ activities because we make them well known. We publicise them, and people do opt out of paying the political levy if they want to do so.
John Hannett: I am conscious of other questions, but I should remind you that in terms of our own levy, the political levy has to be balloted every 10 years. We had a 93% vote in favour, and we communicate that through all our journals.
Q 57 Do you think that is applicable right across the board, to other trade unions? You have said what the position is in your own union.
John Hannett: I do. It is very difficult for a trade union to not be transparent in an issue like this, because if you are politically active and campaigning, you have to demonstrate how you spend your money to not only the certification office but also to your members. My union has an annual conference. The idea of not being transparent to an annual conference plus regional conferences would be impossible. As Roy said, it is the most open, democratic process you can have. Our members are not silly. They know where the money goes; they know how it is spent. And if you get a 93% vote in favour, I think that is pretty conclusive in agreeing that they should pay it.
Okay. We have a long list of questions. You are warming up your audience, gentlemen, so we will be as brisk as we can.
Q 58 Gentlemen, both of you have extensive trade union experience. In your experience, what factors lead to low turnouts when it comes to ballots? Do you support the modernisation of the ballot process—for example, secure workplace balloting? Do you think that it is going to be more difficult to obtain industrial action on issues where there are now 45-day notices of changes to terms and conditions and voluntary redundancy? Lastly, do you think that the picket proposals will lead to more blacklisting?
Roy Rickhuss: There are a lot of questions in one there and it is difficult to answer. I am not sure why there are low turnouts in ballots. We do not experience that. In our union, we recently had a ballot on a pensions issue in one of our traditional industries and we had a well over 75% turnout. I think one issue is the way ballots are currently run. There are already significant, onerous conditions on trade unions in terms of balloting.
One issue in our response to the Bill has been the use of modern technology and electronic balloting. For the life of me, I just cannot understand why there would be any objections to that sensible move forward. I have seen some commentary saying, “Well, it’s not safe and secure.” That is so ridiculous, in fairness. You have to realise that people are not stupid; they do everything online these days. You can do all your banking, you can sign legal documents—you can do everything possible online. To suggest that you cannot vote in a ballot because it is not safe and secure undermines the whole principle of the debate. I think if we had a sensible debate about how ballots are conducted, we might make some serious progress.
Blacklisting is not an issue that my union has experienced significantly. Other unions, predominantly in the building and construction industry, obviously have major concerns about that, so yes, I would imagine that for some unions, it would be a serious concern.
John Hannett: A union like USDAW organises completely in the private sector. We operate in sectors that operate 24/7, seven days a week. My experience when I was particularly active as a union representative was that we had workplace arrangements whereby you could ballot. That used to enable people to go and vote. Of course, the world has changed and it is difficult to facilitate that kind of arrangement, but in terms of the technology, we know that the number of members who join online and who are communicating with the union online is increasing on a regular basis, so the idea of providing a new form of voting is, I think, a sensible one. Like Roy, I have heard nothing that persuades me it could not be done.
The other thing is the industrial relations side that you are picking up. We have a big productivity challenge in the UK. Everybody understands that. What I fear with many of these issues, including the argument about making it harder to run these events, is actually going the other way. So if you are really serious about turnout, you would consider electronic balloting. And in terms of engineering and encouraging good industrial relations, it is not about control mechanisms; it is about engagement, partnership and talking. In fact, if anything, I think this makes it harder for the employers, because this is seen more as controlling mechanisms than constructive relationships. I think it will have a negative impact.
I still have seven people who want to ask questions, so from now on we will have one question and one brisk answer, if you do not mind.
Q 59 Thank you, Sir Edward. I very much echo the comments in your submission that responsible trade unions are a force for good in the workplace and the community, so thank you for that.
I just want to return to the topic of the political levy. I was glad to hear that both of you, on your membership form, specifically provide members with the information to opt out. It turns out that that is not as common as you would think and many other unions do not do that. Given what you have said about the importance of transparency and the reason for you to have put that on the form, do you think that it is appropriate that other unions do not include that information?
John Hannett: Well, you are going to be speaking to other unions and they will give you their answer, but for me, it is right to do it, because I think that if I am going to recruit somebody into the union, I have a responsibility to tell them what they get for their money; I have a responsibility to tell them where their money is allocated. Our form is very clear, and we can certainly give you copies of the form. It is explicit that if you wish to drop out, you can. I think that is honest and the right thing to do. I think that is honest and the right thing to do.
Q 60 Can I ask Mr Hannett a specific question? You have run campaigns such as “Freedom From Fear”, which is about highlighting abuse against workers in retail and other such sectors. Can you tell the Committee how the measures in clause 11 might affect your ability to run such non-political campaigns?
John Hannett: I am sure that the Committee is aware that there are two separate funds. One is the political fund, which allows us to do political campaigns, so where there is a political link clearly we identify the campaigns as such. For instance, that one is linked politically; it is also linked industrially. On one level we engage with employers about providing good, safe environments for people to work in, but there is also a political impact when we want to campaign for new legislation to protect shop workers. Therefore, we need the resources to do that. We need the right balance, and the political levy and the combination of general and political funds enable us to do that. Without that kind of resource what you are doing is effectively making it harder for unions such as mine to campaign on such issues.
What is really important for me in the question though is the transparency. In a sense, when we go for that 10-year ballot we make it absolutely clear what we spend the money on and we also, of course, let the certification officer see clearly where we spend it. I suppose that unions such as mine and Roy’s are confused about why we are in this situation when we have had a highly successful model.
Roy Rickhuss: We also ran a fairly successful campaign around betting shops and against violence towards workers and staff in those shops, and I am pleased to say that it had all-party support. It was a successful campaign. It is questionable, and I do not know the answer at this stage, whether we would have been able to run those campaigns if they had been deemed to be political and the money had needed to come out of a political fund.
We also ran a fairly successful campaign on pensions when the last Labour Government was in power. We had a company in Cardiff that went into receivership—administration—and our members lost their pensions. We ended up taking the Labour Government to the European courts to establish the financial assistance scheme. Again, would we have been able to do that had we not had a political fund? That was about holding the Government to account in terms of protecting our members and their pensions, and we did it—and always will do it—irrespective of the colour of the Government. Whether it be Labour or Conservative, we will use our funds to protect our members’ best interests and that is what it is about for us.
Q 61 You have been very reasonable and measured in your evidence, so I thank you for that. Going back to the importance of thresholds, do you agree with Mr McCluskey when he writes to the Prime Minister:
“No one, of course, can be happy when strike action takes place—especially in services on which the public depend—on the basis of the active endorsement of only a minority of trade union members affected”,
and that that clearly helps to make the case for the proposed thresholds?
John Hannett: My view on that is, first, that the obvious thing is that industrial action is a last resort. I spend most of my time as a trade unionist problem solving rather than problem causing. Also, for a member to vote to take industrial action, it has to be a last resort. I could give you statistics, but given the time I will not. We can say that we certainly solve problems more than we go on strike.
If you want to add more you can always write to us. Do not feel constrained in that sense. We are anxious to hear the whole story.
John Hannett: Thank you, Chairman. The point I would make is that if you want thresholds and turnout to be the case, you must help as much as you can to get turnout—the access, the facilities and the objective of talking to employees before they participate. But the interesting thing is that if you look at the world of work —I mentioned seven-day, 24-hour sectors—reaching out to those people is very difficult. Our members expect us now to communicate in a way we did not some years ago when people would be released from work when branch meetings took place. Now we have to use the technology to do it. You will get the thresholds up, providing you give the opportunity for people to participate.
In conclusion, it is very difficult, today, even where we have legislation for unions to be recognised, to get access to employees. The private sector is only 15% organised, and that in itself creates a problem. I have no problem with thresholds, but it is the facilities and the access that is the issue.
Q 62 It is a pleasure to serve under your chairmanship, Sir Edward. Mr Rickhuss, I have a question about the related consultation on agency workers. Have you received any assurances from the Minister that insufficiently trained workers will not be used in safety-critical positions in your industry during industrial action?
Roy Rickhuss: Well, no, we have not but, in fairness, we have not had that discussion with the Minister at this stage. We have put our evidence to the Committee and we are here today. In terms of agency workers, that is a major concern for all of us. Across all our traditional industries, it seems such an easy thing to say, “We’ll bring in agency workers”, but it just cannot happen. People get killed in every industry and health and safety is paramount and so fundamentally important to all of us—to employers as well. I do not think employers would want this if you speak to them, because what employer is going to put people into a position where there is potential danger? It is not going to happen. These workers are not aliens from another planet; they live, breathe and work in our communities, they are part of our communities, they are people’s sons, daughters, family friends and relatives. It is, potentially, a very divisive clause in this Bill, to say that employers can bring in agency workers.
Briefly, the other impact, which I do not think has been thought through properly, is that we currently have really good agreements with employers—most employers—for the use of agency workers. They are brought in to supplement the workforce if there is a peak or a blip in an order book or a blip in terms of absenteeism. So we already have really good agreements with employers, where we co-operate fully with the use of agency workers to the point that our members—direct employees—will help to train and support those agency workers. My feeling on this, and this has not been said to me, so it is just a feeling at this stage, is that one of our direct members will now say, “Why are we co-operating with the use of agency workers if, if ever there was a dispute—which none of us wants—these agency workers can now be used against us to do our roles?”. My feeling is that some of those good agreements will be ripped up. We will have to give the required notice, but they will be ripped up and binned. Our members will say, “Why are we training agency workers to potentially do our jobs in the event of a dispute?”. I think that this is a really counterproductive measure.
I know that our next question will be very brief and to the point and our trade union team will give just one quick answer.
Q 63 I want to ask John Hannett—I know you are on the Low Pay Commission and that you have many workers at Tesco, many of whom will be mums, who work part-time, probably at the lower end of the pay scale. I am sure that you will agree they are precisely the sorts of people who suffer when the local school closes or when buses are on strike and that—going back to the thresholds, which is the most important part of the Bill—it is in their interests that we have very reasonable thresholds. On that basis, would you agree that the thresholds that we are putting forward are reasonable?
John Hannett: Well, I think you have to look not just at the thresholds in isolation but at access and balloting arrangements and that was the answer that we gave before. In terms of Tesco and people on low pay, the reality is that strikes are very small in number in the UK, which has been demonstrated over many years. What I think is missing, which is the general point that I would make—and I made the point about control mechanisms—is encouraging good industrial relations, partnership and the stuff that Roy and I are doing. It is all about a race to the bottom. The people who work in Tesco, of course they want to be able to take their children to school but the fact that there is a dispute means that the best emphasis is on how you resolve the dispute.
Everything that I heard in the Bill is about thresholds, mechanisms, control mechanisms—I have also been on the ACAS council for a number of years and all my training, which I believe applies to trade unions, is to solve the disputes. The first thing you do when you go on strike is to try to avoid it by using your mechanisms and your procedures. However, if you do end up in a strike position, there is not a trade union leader I know—or there should be no trade union leader—who takes strike action easily or recommends it. It is a very serious position to take; people lose money, or potentially lose their jobs. That is why think you will find, overall, unions are problem solvers, not problem causers.
Q 64 Good morning, Roy and John. I wanted to ask your opinion of the CBI’s evidence, in which they talked about facility time being more of an issue in the public sector than in the private sector. Roy, you know—being general secretary for workers represented in companies such as Tata, Celsa, Outokumpu, Forgemasters or Caparo—and I know, that the facility time agreed on those sites provides health and safety reps trained by the unions, who often become the next health and safety managers on site—for free for those companies. Will you go into the facility time implications that could become apparent on COMAH site safe workplaces?
Roy Rickhuss: Just briefly, obviously I am aware that facility time is probably more of an issue for the public sector—again, there is nothing to say whether that is politically motivated or not—but certainly in the private sector, in the industries that we work in, facility time is agreed with the employer, so the employer is happy and comfortable. It is interesting that employers, again, would probably say, “It’s agreed, it allows people to do a job of work both for the employer and the employee”—so they are attending meetings, doing planning strategy, representing people and ensuring that all the good industrial relations that we talked about are happening and working. Anything that impacts on or tries to interfere with that relationship will be detrimental to good industrial relations.
Q 65 Would you also say that they get the technical expertise from the shop floor, which improves efficiency on site?
Roy Rickhuss: Absolutely. People who have worked in a job or industry for a number of years know that job and that industry as well as anyone, so the fact that they are able to sit down with their supervisors and team leaders, or for team brief and so on, and they are able to give of that experience and give across that help and advice is invaluable.
I am not sure where all this fits with the ACAS code of practice, which is excellent and has been used as a good benchmark for decades. Trade union activist officials have the right to paid time off to do their duties, which has never really caused a problem. I am not aware of anyone objecting to that or trying to change the ACAS code of practice. It has worked reasonably well for a long time.
Okay. Very quick questions and answers now. Seema Kennedy.
Q 66 Mr Rickhuss, in your written submission you bring out the point that you think that the Bill is going to put too much power in the hands of employers, but would you not agree that those affected by strikes in education and transport have no power at all? Also, when we have very low turnouts, those people are disproportionately powerful, because they can still bring a city to a standstill or close down an entire education system.
Roy Rickhuss: Again, you are talking about the public sector. I do not believe that anyone should be inconvenienced by strikes—that is not my position and I would not say that. What I do say is—back fully agreeing with John—it is about having proper industrial relations and having a partnership approach. I do believe a threshold of 50% plus one is fair and reasonable, because that is what we have—that is our democracy.
It works both ways. If we have a proposal from the company or the management to change a particular working practice, which we deal with almost daily, that is the threshold for whether that working practice or change in terms and conditions is accepted or not. We do not say to our members, “We are going to have an onerous condition that says you have to vote by 60% or whatever to accept a change in your working practices.” The companies are quite happy with that. When they want to change a working practice, introduce some flexibilities and so on, they are quite happy for the union to consult its members, and come back and say, “Yes, that has been accepted by the members.”
Okay. I have to stop you there—I think the Minister wants to have the last shout.
Q 67 Gentlemen, thank you very much for coming. We are obviously not going to agree on every point in the Bill, but I salute you both as absolute exemplars of trade unions working at their best. In particular, Mr Rickhuss—I do not know whether I have pronounced your name correctly—I wanted to say that as well as having responsibility for the Bill I am the Skills Minister, and if there is anything I can do to help you in dealing with the dreadful situation for the thousands of your members in Redcar, please come directly to me, as I would like to do whatever I can.
Roy Rickhuss: Thank you.
Q 68 Do you want to say anything in conclusion, gentlemen?
John Hannett: I have one quick comment. I would impress on the Committee the need to look at some of the best practice as well. Sometimes it feels like a lot of this is perhaps being driven by the worst examples. It would be worth looking at some of the biggest partnership agreements, particularly in the private sector. That would be a much more constructive way forward on industrial relations than just looking at the negative stuff. The model we should be looking at is the biggest private agreement in the country, with 180,000 members in one of the most successful businesses.
Thank you, gentlemen, for the impressive way you have answered our questions. That concludes this part of the sitting.
Examination of witnesses.
Stephen Cavalier and Mike Emmott gave evidence.
For our last session this morning we have Stephen Cavalier, chief executive of Thompsons Solicitors, and Mike Emmott, senior policy adviser at the Chartered Institute of Personnel and Development. We have half an hour.
Q 69 I have two questions each for you. Mike, your organisation has been very clear about its concerns about the Bill, which has been described as counterproductive and as having potential unintended consequences. Given your representation of members working in HR who obviously have daily front-line experience of dealing with trade unions, industrial disputes and individual disputes, will you explain why you came to those conclusions about the Bill?
Mike Emmott: Thank you very much for that question. Basically, we think it targets a problem that was more evident several years ago than it is today. We do not really have any evidence that the problem has become more acute or needs tackling. In particular, we do not know that, if there is a problem, it should be tackled in this manner. We do not really see the need for legislation on this topic. We do not believe it is likely to have the intended effect of reducing industrial action, or that it is likely to contribute to greater productivity, innovation or performance generally, because it does not really address the issue of relationships on the shop floor, which we see as being at the heart of productivity.
We are more interested in the relationship between employer and employee or workforce and we are a bit concerned that the Bill does not address that in a constructive way. Those are our main reasons. We feel that, particularly in the public sector, the issue of employee engagement—the word “partnership” has been used—the attitude of looking to develop trust, is the way that the Government should tackle the continuing, quite real problems that they will encounter, in the public sector in particular.
Q 70 Okay. That is very helpful.
Steve, you and Thompsons have said that significant aspects of the Bill are essentially unworkable. Will you explain why you believe that to be the case and whether you believe that the Bill will actually lead to an increase in probably expensive litigation if, as you say, parts of the Bill are unworkable or unenforceable?
Stephen Cavalier: Thank you for the question and thank you to the Committee for the opportunity to give evidence today. First, I endorse the evidence given by the witness from Arriva that it is necessary for the Bill to be clear and workable. Putting it bluntly, it is not. It is unworkable in several respects. We heard from the CBI about the law of common sense, which seems to have gone out of the window in some aspects of the Bill. The Bill needs to be workable but it is unworkable in several ways and, in fact, some aspects seem to be designed deliberately to make it difficult, if not impossible, to comply with the provisions. I shall give the Committee a couple of examples.
On the 40% threshold, the Government kick off by saying that the unions must ballot all members who are affected by the dispute. That is simply wrong; it is a wrong statement of the law. They have to ballot those they expect to call upon to take action. They build on that by trying to introduce these thresholds in a way which is very unclear. The thresholds apply where people are normally engaged in important public services—those are not defined—or in ancillary services. The consultation paper for the consultation, which concluded on 9 September —we have obviously not seen the Government’s response—tries to list a whole load of jobs which are included in “important public services”. The Government recognise the difficulty in doing that—it is very unclear—and it is exceptionally difficult to see how a trade union, when balloting, is able to decide whether or not a particular member or group of members is covered by that definition when the information is in the hands of the employer. You may have a mixed constituency, some of whom are covered and some of whom are not. For example, in a school where some teachers are teaching pupils of under or over the age of 16—so they are partly covered and partly not—it is complete chaos as to whether they are actually going to be covered.
On the ballot paper point, an earlier question mentioned the importance of clarity on the ballot paper. It will be a lot less clear if we have ballot papers as proposed by this legislation. What on earth is a reasonably detailed indication—it is an oxymoron, it is internally inconsistent —of the matters at issue in a dispute? As everybody who knows about industrial relations will know, often one of the issues in dispute in a dispute is what actually is in dispute, so I do not know quite how that is going to be stated clearly. This is not about providing information for members; it is about providing ammunition for employers.
The intention here is clearly to encourage a lot of litigation and that is going to be expensive. It is very unclear and an awful lot of detail needs to be sorted out, even, for example, in terms of describing types of industrial action. We had a meeting with Government lawyers and I felt rather sorry for them. They were trying to explain what the provisions meant—I happen to have a lot of time for Government lawyers and the work they do—and they could not explain what types of industrial action they were talking about. They said, “Overtime bans, work to rule”. Well, those are not legal terms of art. That creates more confusion, rather than less.
Q 71 May I ask a specific question about clause 14 and the certification officer? Wide-ranging powers are being suggested with regard to changing the role of the certification officer. Essentially, the certification officer will be able to bring a complaint, investigate it, decide on which witnesses, make decisions over the matter, impose fines and enforce them. Do you think that creates a very unwelcome blurring of the lines between investigator and adjudicator?
Stephen Cavalier: I am not sure that it blurs the lines; I think it probably removes them altogether. There will be a lot of applications to be certification officer on that basis, I should imagine, given the sheer range of powers. The pity is that the certification officer does a very good job of arbitrating in disputes between union members and the union—so, the individual member and the union as a collective. This completely changes that role. It means that the certification officer himself has to initiate investigations, can demand documents and demand immediate explanations of documents, and can appoint investigators, who may not actually be employed by the certification officer—they may be from accountants, for example, at enormous expense to the unions themselves, who then have to pay a levy for it.
It is interesting that unlike in employment tribunals, where applicants have to pay a fee to bring a claim, no one seems to be suggesting that a complainant needs to pay a fee before they go to the certification officer. Then, to extend that, to be able to impose fines and the fact that enforcement orders by the certification officer can be enforced not just by the certification officer but by individual members as well, goes well beyond any rule-of-law or natural justice considerations.
Q 72 We heard from the CBI and the British Chambers of Commerce that all this Bill does is modernise the way in which trade unions behave. It does not introduce a fundamental change in the trade union rules that apply, so it is very difficult in that circumstance to understand why you describe the Bill as unlawful and unwarranted. In the example that you use of not being able to tell what the nature of the dispute is, surely it is in the interests of transparency that that should be settled and be clearly on the ballot paper.
Stephen Cavalier: The problem here—I was in a meeting with some employers’ lawyers and they were expressing it this way—is about forcing such a detailed description of all the matters at issue in a dispute at the start. The lawyers’ concern is that unions will be forced to draw the dispute as broadly as possible to include every single aspect, and moreover, that it is likely to escalate matters because unions will feel reluctant to compromise on individual issues in the dispute, as employers will otherwise argue that consequently the dispute has changed and that there needs to be a re-ballot. It forces extreme behaviour, if you like, and it is likely to mean that a dispute escalates.
In terms of being unlawful, we mentioned in our submission the areas where we believe it contravenes the European convention on human rights and the International Labour Organisation code. The other point to make is that, as the Regulatory Policy Committee said in its response to the impact assessment, there is absolutely no evidence that it will work. In terms of modernising industrial relations, the Regulatory Policy Committee has said that there should be separate assessments of the 50% threshold and of the 40% threshold. It completely rejects the analysis of the likely impact of the threshold on the outcomes of disputes, because there is no analysis of the impact of a threshold on voting behaviour and turnouts in the elections themselves.
Q 73 The Government are consulting on draft regulations that would repeal the restriction on providing agency staff during industrial disputes. What are your views on these proposed changes? Could they further undermine industrial relations?
Mike Emmott: Our view is that the consultation paper overstates the likely impact of removing the prohibition on employment agencies supplying workers on a temporary basis during industrial disputes. It is already possible for employers to recruit temporary labour without any difficulty, provided that they do it directly. For some of the reasons that emerged from the last witness session, we think that issues of training and safety, never mind the availability of qualified staff, will very considerably reduce the impact of this, which is the third of the consultation issues. It is likely to be pretty much a non-event, except possibly in some cases where employers—maybe large employers—have close relationships with agencies, and on a daily basis they take on quite a lot of temporary labour. It might be difficult to know whether or not particular workers were engaged in replacing workers who are on strike. But in general, we do not think that this particular part of the Bill is likely to have any major impact. I do not speak for recruitment agencies or recruitment businesses, but I think that many of them will be quite reluctant to get sucked into industrial disputes.
Stephen Cavalier: Indeed, the recruitment businesses’ own organisation, the Recruitment and Employment Confederation, has said that this is a very dangerous proposal which it does not support. The Regulatory Policy Committee itself said that there was absolutely no basis for the Government’s assertion that 22% of days lost would be solved by this. Moreover, there are very good emergency arrangements in place to ensure that cover is provided in the public sector, certainly in the fire service and in midwifery. I am sure that people would much rather have those arrangements than agency workers brought in to put out fires or to deliver babies.
Q 74 My questions really relate to the certification officer, which you present in your evidence as a sort of big bad wolf, and you seem very concerned about the prospect of the additional powers. I put it to you that really the prospect of having a certification officer is surely a sensible solution to difficulties with compliance, and an appropriate response to situations where non-compliance may have occurred. What strikes you as so outrageous about having to produce documents?
Stephen Cavalier: Well, first, the certification officer is not a big bad wolf, and his current iteration is doing a very good job. I would be very interested to hear from the Government what consultation there was with the certification officer about his own powers and his current arrangements, and whether he felt that his powers needed to be extended, and indeed what consultation there was with other agencies on the impacts of these powers. The purpose of the certification officer was to enable individual union members who felt that they were getting the wrong end of the stick from a collective issue to have a voice, which they would otherwise not have had. It is not about allowing outside agencies to influence the state regulator or to put pressure on the state regulator to initiate action. I cannot see how a state regulator can be impartial if they can be prevailed upon externally to take action. Also, if they were funded in the way that is suggested, that would completely alter the nature of the role.
Q 75 But would you agree that the purpose is to establish whether or not there has been non-compliance?
Stephen Cavalier: Well, I am not sure that it is to establish whether there has been non-compliance. Non-compliance with what? At the moment if there is an issue to do with rules or statute, a member can complain to the certification officer. What is actually changing here is to take it beyond that and start, for example, requiring unions to report to the certification officer details of industrial action, which are really none of the certification officers’ concern. A certification officer is essentially there to deal with internal matters within unions to do with disputes and rights within unions, whereas here they are talking about the possibility of any person initiating a complaint with no written notice, and calling on unions immediately to produce documents and immediately to explain documents—it is difficult to see what the purpose of it is. It is very intrusive. This would certainly impact on unions’ own regulation and their democratic right to organise and be accountable, which is likely to call into question the European convention and ILO matters.
Q 77 Forgive me, if the certification officer has a concern, he should surely—
Stephen Cavalier: The certification officer does not range around the country investigating trade unions and looking at what they are doing to find out whether he has a concern. Where are the concerns going to come from? At the moment, the certification officer is dealing with complaints that are made to him from legitimate concerns about individual union members or groups of members. If he thinks that that complaint has some grounds, he can deal with that, and in the course of that hearing, he is entitled to ask for documents and to have documents produced in the same way as an employment tribunal.
Q 78 But you are not happy for him to self-generate concerns.
Stephen Cavalier: For example, were you suggesting that there should be a labour inspectorate that could decide whether it thought there were poor labour practices going on around the country and could call for employers to produce and explain documents, like a health and safety inspector can, that would be a very different situation. The proposal here completely alters the role of the certification officer from deciding on legitimate complaints to going out and fishing around to try to find issues. Where would the certification officer make these decisions? Why would they be making these decisions? The Law Society is very concerned about the complete change in this role and the fact that it fundamentally alters the nature of his role.
No, do not hog it. I call Ian Mearns.
Q 79 I am grateful, Sir Edward. I understand from social media links that I read yesterday that many of the suggestions in the consultation on the Trade Union Bill are likely to be withdrawn, although we have not had that confirmed yet. I find that disappointing, because I was personally looking forward to a sustained bout of wildcat or secondary tweeting. The Government’s proposals treat abstentions as no votes. How would it impact, for instance, on the likelihood of a trade union ballot reaching a threshold if everyone who wants to vote no just abstains? Would that raise any prospect of legal challenge, given that the ILO has confirmed that only votes cast should be taken into account in industrial action ballots?
Stephen Cavalier: On the point about thresholds, as the Regulatory Policy Committee has said, the likelihood is that the existence of the thresholds will have an impact on turnout and behaviour. In terms of modernisation and coming back to the previous question, if we are genuinely looking to modernise trade unions, electronic and workplace balloting are essential for that and for increasing turnout. You are absolutely right that the provisions under the ILO convention specifically say that an abstention should not be treated as a no vote, and that is a clear area of potential illegality. There are not similar thresholds in any other European Union member states or Council of Europe convention states. The Bill introduces a new requirement that is likely to be found to be unlawful. In particular, the treating of an abstention as a no vote is likely to be subject to legal challenge.
We do not want any anti-Bulgaria comments.
Q 82 Thank you both for giving up your time today. I want to turn to the clauses about the transparency of political donations. Stephen, I noticed that in your submission you made the point that you do not think any other bodies are subject to similar provisions. I am not a lawyer, so perhaps you can help me, because my understanding from my business life is that the Companies Act 2006 requires the annual disclosure of political donations by companies and, further than that, requires active shareholder consent and a resolution to be passed, rather than an opt-out system, which is obviously a higher threshold than what we have today. I think you used the language “oppressive”. Would you consider the system of corporate donations we have today to be oppressive?
Stephen Cavalier: I would like to see a lot more transparency around corporate donations—things such as the Midlands Industrial Council, which is the major contributor to one of the political parties—and funds that are channelled through intermediaries into political parties. I would like to see shareholders having a real say in whether there are political donations. We have heard the point about the wider political implications of the political fund rules on broader campaigning. There is already complete transparency of the donations that are being made.
It is extraordinary to suggest that every trade union whose total donations exceed £2,000 per annum has to give details of every single individual donation, what it is used for and to which recipient on an annual return each year. That is an extraordinary intrusion of privacy on the individuals who make those donations. I do not see any equivalent provisions in relation to companies. I defer to you if there are such provisions.
Q 83 The difference would be that a company cannot just take money from shareholders, give it to political parties and ask shareholders to opt out; they have to acquire active shareholder consent. Unions today do not have to do that. Do you think that balance is right?
Stephen Cavalier: Well, that is not a correct characterisation of the situation. At the moment, unions have to ballot every 10 years for a political fund. You have heard from Mr Hannett already; 93% of USDAW members voted in favour. That is quite a common percentage among trade unions. Every single union must have a political fund ballot every 10 years. Every single member is legally required to have a notice when they join that gives them the opportunity to opt out of the political fund if they want to. Those provisions already exist.
The measure suggests that that should be changed, by the way, on the basis that within three months of the Bill becoming law, every single trade union member who pays the political fund will have to write in by post or by hand to opt in, with no opportunity to do so electronically. It completely fails to take into account that, as matters stand, unions are required by law to have a political fund rule adopted under their own constitutional provisions, which is approved by the certification officer. If you change the law in this way, every single union will need to change their rules, have those rules approved by the certification officer and get their members to sign up, which they simply cannot do within three months. To my mind, it is another example of a deliberate attempt to draft the legislation in such a way as it cannot be complied with by trade unions.
Q 84 This is the basic issue of fairness—of people’s contributions being taken without their active consent at the time of membership. We heard in earlier evidence that some unions support that but it is very much not the widespread practice among all unions to provide that information to their members. If you support transparency, it is clear today that that transparency does not exist across the entire board.
Stephen Cavalier: It is a legal requirement to tell members that they have the right to opt out of the political fund. If they wish to, they do so.
Q 85 I have several questions. First, do you agree that there is a danger in introducing thresholds—the impact that it will have on some gender equality issues, for example? Shift changes impact workers trying to pursue equal pay issues and the like. Secondly, is there a new danger of public bodies having to reissue new, individual contracts on the basis of opportunities to check-off and those sorts of issues? Do you see any impact on the devolved Administrations given that your organisation has offices across the UK?
Stephen Cavalier: First, on the equality point, the TUC has already submitted evidence. There is a disproportionate impact of thresholds on women workers; it is absolutely clear that there is a discriminatory impact. On the question of check-off and facility time, we are also a large employer. We have check-off and facility time and we are pleased to do so. It is something that we have agreed with our workforce and it works very well for us. I very much endorse the comments made in a 2012 paper by called “Stop the Union-Bashing” by Robert Halfon MP, who says that Whitehall should not dictate to employers and that it should be a matter for employers to agree facility time. I commend that paper to the Committee. It is certainly right that employers should agree facility time and check-off. It is a matter for them.
There are serious issues here associated with the devolved Administrations. As I understand it, they have the right to determine these arrangements within their own spheres. This does cut across that, and it does so in a very negative way. It is very concerning that the impact assessment itself—in fact, I think the European convention assessment that the Government have produced says specifically that this removal of existing contractual arrangements and collective agreements may have retrospective effect. That is a serious potential breach of article 1, protocol 1 of the European convention.
Q 86 Thank you both for coming. You have both spoken about thresholds and their potential impact, but neither of you seem to have focused on the key point that matters to the country at large, which is that it is so unfair to our commuters, our parents and so on that their public services can be brought down for days on low turnouts. We heard earlier from Arriva that on a 17% ballot, 50% of their buses were out for a day, causing massive disruption to its passengers. Do you not accept, in principle, that it is right to deal with that?
Mike Emmott: Our view is that although it is conceivable that the increased threshold will influence the outcome in some cases, it is quite unclear whether it is going to make striking more or less likely. There are lots of way of causing problems. We do not have a view on whether or not the thresholds are right in principle. We simply take the view that they are just as likely to cause more trouble as they are to reduce it.
Q 87 The point is not whether it makes it more or less likely, in my view. The point is that if the strike goes ahead with the sort of turnout we will require, the public are much more likely to accept it. That is surely the point. At the moment, these strikes are happening on a very low turnout. Do you accept that we are right to deal with that?
Stephen Cavalier: Can I come in on that premise? The Regulatory Policy Committee has said that there is no evidence that the thresholds would have that impact. Strikes are not going ahead on those low thresholds. One particular example was given by a colleague from Arriva, and what he said about inward investment in response to the question was very interesting. The fact of the matter is that the current legislation and the current situation have not prevented the Governments of France, Germany, Holland and other countries from investing in the UK rail network and owning train operating companies. There simply is not that problem.
Q 88 So you do not think we should be doing anything about thresholds. You think it is right that schools, buses and other major public services can be brought down for a day or more on the basis of very low turnouts. In principle, do you think that is fair?
Stephen Cavalier: There is not a problem on low turnouts, and the way to tackle turnouts that has been suggested is workplace ballots and electronic ballots.
Mike Emmott: Simply, if you have a ballot, the unions are going to take into account the likely response by members and choose situations where they are more likely to win rather than lose, and why not? Once you get a big majority in favour and it is clear and transparent, I think that legitimises the action. Whether it makes it more acceptable I am quite doubtful of, but you have to take account of the fact that you may be pulling in members who actually support the action that is being called rather than appealing to some supposedly moderate majority who do not want it.
The last question will be from Stephen Doughty.
Q 89 We have heard a lot about schools, hospitals and transport. Obviously, those are devolved matters. We are hearing from the Scottish and Welsh Governments later on today. In your view, is there a fundamental breach of the devolution settlement here and potential legal proceedings as a result of some of the measures in the Bill impacting on decisions that are actually fully devolved to those Governments and, indeed, in a number of cases, to local governments across England?
Stephen Cavalier: Yes, I think that is absolutely right, in relation to facility time and check-off and to these matters to do with the threshold.
Q 90 Do you agree with that, Mike? Do you think there is a risk here? You deal with Governments, public services and businesses across the UK. Do you think there is a problem here in terms of devolution?
Mike Emmott: I do not know what the devolution settlement would say specifically about these collective issues. I understand something about individual conflicts, tribunals and so on. We have not consulted members, but I think it is appropriate for these issues to be dealt with on a national basis. It is going to be quite odd for employers dealing with different rules applying in different jurisdictions, where there may be issues that go across the whole of the UK.
We have come to the end of our time. Thank you for speaking to us. I thank the Members. We are going to adjourn until 2 pm, when my colleague Sir Alan Meale will take the Chair. He is a very kindly gentleman, so I hope you will be equally well behaved with him. It has been a very good session, and everyone has got in who wanted to.
That further consideration be now adjourned.—(Stephen Barclay.)
Adjourned till this day at Two o’clock.