The Trade Union Bill and the iron law of unintended consequences
Let’s give credit where it is due. And the hype is true. The government’s new Trade Union Bill is the most significant piece of trade union legislation in a generation; perhaps even longer than that, because it goes further, wider and deeper than anything that has preceded it. It is an audacious piece of legislation which fundamentally alters the balance of industrial relations in favour of the employer.
But although measures on industrial action and political donations have grabbed the headlines, as the saying goes – the devil is in the detail.
We are right to be worried about the rules on industrial action. The “double whammy” of a statutory threshold for both turnout and “yes” votes sets standards for trade unions that politicians would never apply to themselves. They would also never have applied them to the employer-equivalent of industrial action – withholding investment, taking excess profits, shutting up shop and moving somewhere else. And it is not just strike ballots, but the requirement to give longer notice and the incitement for employers to use strike-breaking agency workers.
We should be critical of the proposals for political funds too. Harriet Harman was right to point out in the House of Commons yesterday that there is no equivalent when it comes to big business bankrolling of the Conservative Party. But the recycling of arguments from the 1980s about political funds conveniently overlooks the reforms that the Labour Party itself put into place require a conscious opting-in by trade unionists who not only pay a political levy, but wish it to be directed to that destination.
So far, so bad. But like a malignant game of “find the lady”, while our attention is diverted to these big ticket issues, there are areas just as potent and controversial below.
And that is why it is more a question of “be careful what you wish for” than the devil being in the detail.
Every trade union official knows that industrial action represents a failure of the negotiating process. But successful companies have mature, robust and highly innovative trade union/employer partnerships. A lopsided Trade Union Bill seems to presume that the collective voice of employees has nothing to offer. Employers are to be dealt hands stuffed with aces and trump cards. Where is the incentive to truly engage and genuinely negotiate?
The Bill seeks to ride roughshod over other important pieces of legislation. A challenge under Article 11 of the Human Rights Act can surely be on the radar.
Despite the blithe assurances in government statements yesterday that the Bill is not inconsistent with the European Convention on Human Rights (ECHR); however if after a lengthy and expensive legal process it turns out not to be the case, hey no problem: there are many in the government who want to scrap the Human Rights Act which would leave withdrawal from the ECHR as an inevitable and logical next step.
And finally, if I was the Certification Officer, I am not sure how I would feel about the huge armoury of extra powers the Bill gives me. It sounds like a legal minefield which involves a purgatory of unending court appearances. But in any event, the invasive powers vested by the Bill surely cut across the provisions of the Data Protection Act which grants special status to the question of an individual’s trade union membership (or not). That provision is also underpinned by the Human Rights Act.
And the obligation to pre-approve tweets and comments on social media during periods of industrial unrest – well hello Big Brother, come in and warm your feet by the fire. Is this is a stunning land-grab on the rights of freedom of expression or alternatively just a clumsy stalking horse to be killed off during the Bill’s Committee Stage.
An objective observer would be forced to conclude that this Bill is a throw-back addressing a problem that no longer exists. Days lost to industrial action have fallen by 95% over the last 35 years. The risk to civil liberties and the destabilising effect this will have on employer relations in the workplace makes this Bill unnecessary as well as unworkable.
The TUC is approaching its 150th anniversary. Time and time again our movement has shown the tenacity, determination, imagination and chutzpah to continue to work with good employers, expose bad ones and above all, repay the trust our members show in us by achieving dignity and fairness at work. The Trade Union Bill encourages the bad and suppresses the good. Be careful what you wish for indeed.