Balloting thresholds for ‘important public services’

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The right to strike is a fundamental human right. It is defended by an extensive variety of worldwide treaties, including ILO Conventions, the European Social Charter (1961) and the European Convention on Human Rights.

Morrish Solicitors fear that the Government’s proposals set out in the Trade Union Bill will have a significant detrimental impact on the right to strike in the UK.

Morrish Solicitors believe that these proposals will conflict with the Government’s international and human rights obligations – they represent unnecessary, unjustified and disproportionate restrictions on the right to strike. Furthermore, the proposals restricting the right to picket and protest peacefully will seriously impede the civil liberties of working people, including their rights of assembly, protest and freedom of expression.

Questions 1 and 2

Morrish Solicitors oppose the Government’s proposals of introducing statutory limits which include the requirement of a minimum 50% participation rate in all industrial action ballots and a 40% “yes vote” in ballots which concern ‘important public services.’

Morrish Solicitors believe that the introduction of these proposals will amount to a pointless, unjustified and unbalanced limitation on the rights of individuals to strike in the UK. They would therefore conflict with the government’s international and human rights obligations.

In essential services the likely effect of the change will be to render industrial action practically unlawful in all but a handful of cases.
If the Government wishes to increase participation in ballots, it would make sense firstly to modernise voting to allow for the use of secure electronic and workplace voting.

Morrish Solicitors strongly disagree with the Government’s assessment of the likely impacts of the new law. The BIS assessment does not consider the impact that the new proposals of strike thresholds will have on employment relations, on staff motivation and on workplace productivity. Furthermore, the assessment fails to mention anything on the human rights repercussions arising from the new legislation.
It is clear that the 40% threshold requirement will disadvantage union members working in ‘important public services’ and in ancillary activities. Given the number of women employed in public services, we believe that these proposed requirements are or may be discriminatory.

Employment relations

There are wide-ranging benefits for employers, employees and the wider society arising through negotiations between employers and unions in the UK.

The ability of unions to arrange lawful industrial action is an essential feature of those negotiations. It ensures that employers consider the views of the workforce seriously and take part in genuine negotiations.

Taking industrial action is always a last resort for unions. However, sometimes it can be the only way to resolve disputes including in those occupations and industries classified by the Government as ‘important public services.’

The incentive for employers to agree improved terms and conditions as part of negotiations will be dramatically diminished in the absence of a meaningful right for Unions to organise strike action.

Disputes harder to resolve

The proposals are prone to heighten and delay disputes, making it difficult to resolve them quickly and amicably. For example:

  • The introduction of ballot thresholds will remove the incentive on employers to seek an early resolution of a dispute. Employers will not make revised offers until they know whether the union can meet the strike thresholds.
  • Members’ expectations will be raised when they hear that their union has met the new proposed thresholds.
  • Delay will be caused to the start of the industrial action by the extended 14 day notice of industrial action actually prolonging the period of any action.
  • ACAS may have difficulty in obtaining agreement from employers to participate in talks and to discuss settlement due to the provisions in the Trade Union Bill.

It is apparent that the Government’s proposals will weaken good employment relations. These proposals will make disputes more difficult to resolve, not less and may also prolong the period of any action.

Morale & productivity

It is foreseeable that employee morale and workplace productively will be impacted by the government’s proposals.

One key effect of these proposals will be that fewer workplace disputes are likely to be resolved in a way which balances the interests of employers and employees. Job satisfaction amongst employees will be reduced considerably if workers feel that management are unwilling to take their views or concerns seriously. This will lead to employers finding it difficult to retain skilled staff. In some workplaces, disputes may never be resolved. As a result, there will be lower productivity and organisational effectiveness and quality of service delivery will be affected.

Loss of benefits for working people

The introduction of new thresholds for industrial action ballots will take away employees’ ability to achieve better working conditions and living standards.

We believe that industrial action can play a vital part in enhancing pay and conditions for working individuals. That enhancement is good in and of itself.

Health and safety

The Government has suggested, in its consultation document, that strikes in ‘important public services’, for example, health care, fire services, nuclear decommissioning or border controls have caused harm to the public and risk public safety. Morrish Solicitors strongly disagree with this statement. We believe that in fact trade unions play an important role as guardians of public safety.

Union members are committed public servants who care for service users and endeavour to protect and promote their safety and well-being on a daily basis. They enhance service delivery and have a well-demonstrated history of driving up safety standards.

During industrial action, unions act responsibly and ensure that individuals are not put at danger.

Morrish Solicitors believe that the limitations placed on the right to strike will mean that the unions’ ability to sway employers to address issues affecting safety and service delivery will be significantly weakened. Consequently, public safety will be placed at risk. The quality of service will decline due to an increase in staff turnover because public sector staff will feel increasingly disheartened by their lack of ability to deliver quality and safe public services. Ultimately, those who will be hit the hardest will be those who rely on the public services.

Industrial democracy

The Government is proposing to impose statutory thresholds for industrial action ballots. Morrish Solicitors fear that the proposed thresholds will lead to unreasonable outcomes. The Government’s proposals assume that individuals who do not vote are opposed to the industrial action.

Furthermore, we believe that the requirement for unions to use postal votes may result in increased abstentions. Rather than the Government increasing the use of postal votes, they should introduce legislation permitting the use of secure online and electronic voting in union ballots and elections.

Voting

Morrish Solicitors believe that the existing balloting requirements call for urgent reform. Currently, all ballots and elections must be conducted on a fully postal basis and voting must be by the marking of a voting paper. We believe that this system should be replaced with a more modern procedure involving secure electronic and workplace voting systems. There will be a number of benefits of this system including encouraging increased participation in union democracy. Furthermore, different methods of voting would offer greater flexibility, swiftness, convenience and ease of access.

Workplace voting should be allowed for union members as this is likely to increase member participation in ballots.

Question 3

Morrish Solicitors strongly oppose the Government proposals for a 40% threshold. See our comments above.

Morrish Solicitors believe that the Government cannot try to justify the restrictions on the right to strike to protect public safety when it is proposed to permit employers to use agency workers to replace striking workers. By using agency workers to undertake work normally performed by a permanent staff member serious issues concerning the safety of the public may arise. These issues and concerns will include whether the agency worker has had the appropriate training for the job and also whether they are fully trained on health and safety in order to conduct the job safely.

It is inevitable that industrial action will cause some disruption. However, this is how the strike action will be effective. It is the point. It ensures that employers will engage genuinely in negotiations.

Questions 4, 5 & 6

Morrish Solicitors strongly oppose the Government’s proposals for statutory thresholds for industrial action, including the restrictions on ballots in ‘important public services.’ We do not agree that these are the occupations and functions that the Government should consider when considering those that are subject to the 40% threshold. Furthermore, the 40% threshold should not apply to any other sectors, occupations or thresholds. We argue that the 40% threshold does not comply with international and human rights standards.

Morrish Solicitors believe that the Government’s proposals are discriminatory and will significantly disadvantage public sector workers. See also our comments above.

We believe that there is a real risk of generating significant satellite litigation about the new proposed laws generally, but specifically the statutory list. Attached to litigation will be increased legal costs for both unions and employers.

Litigation will also bring increased tensions between employers and their workforce which will make it difficult for unions to negotiate amicable settlements.

Questions 7, 8 & 9

Morrish Solicitors do not agree with the Government’s proposed approach to ancillary workers. The Government’s proposals are not clear and transparent. Proper definition is required before a sensible response can be provided.

Question 10

Morrish Solicitors do not agree with the Government’s proposed approach to private sector workers.

Question 12

Morrish Solicitors are unable to accurately respond to this question on the basis that draft regulations have not yet been made available by the Government which would identify or specify to which occupations and functions the 40% threshold will apply. In addition, it is unclear from the provisions of the Bill which workers will be treated as normally engaged in activities which are ancillary to important public services.

Morrish Solicitors believe that the Government’s approach to the 40% ‘yes vote’ will generate increased uncertainty for unions and employers.

Examples where it will be mostly difficult to ascertain whether the 40% ‘yes vote’ requirement will apply is for the education unions, in particular, in schools where there are ‘sixth forms.’

Question 13

Morrish Solicitors strongly disagree. We believe that the right to strike is a fundamental human right which should apply to all workers equally. See our comments above.

Question 14

The practical and administrative difficulties that Morrish Solicitors believe trade unions will face are:

  • Additional detailed information will be required from their members relating to their employment.
  • Holding additional information creates issues in terms of Data Protection and privacy.
  • Increased risk of legal challenges and therefore higher legal fees.

 

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