Legislation to tackle yesterday’s problems?

By Mike Emmott, Employee Relations Adviser, CIPD, @emmott_m

Why has the Government chosen to legislate now to amend the law on industrial action?  The number of days lost to strike action has dropped by over 90% in the last twenty years and employers say that relationships with trade unions are generally good.  Yet the Government has introduced legislation requiring strike ballots to achieve new turnout and support thresholds, targeting intimidation on picket lines and allowing employers to take on agency temps to replace striking workers. 

What’s it all about?
A number of interpretations are possible.  One is that the Government is fed up of having to respond to years of union challenges, for example on public sector pay and pensions, and wants to clip the unions’ wings.  Ninety percent of all days lost due to industrial action have been in the public sector, where Government is involved as either employer or funder.  Public services such as health and education can be seriously affected. 

Another possible explanation is that David Cameron wants to show that he is capable of standing up to the trade unions, and finishing off the job begun by his predecessor as Prime Minister, Margaret Thatcher, in the 1980s.  Never mind that union strength today is a shadow of what it was then: that must have suggested that it’s not one for the “too difficult” box. 

A third possibility is that trade union reform was written into the last Conservative manifesto when the Government can have had little confidence it would win the election and have to deliver.  However, the speed with which they are now following up on their election pledge – the Trade Union Bill had its first reading in July – suggests they don’t see it as some kind of mistake, but rather as a key political priority. 

Ballot thresholds
So what will the Bill achieve?  One thing it’s most unlikely to do is reduce the scale of industrial action.  Looking back at the historical strike record doesn’t help much towards determining how many strike ballots will get the necessary level of support in future.  Trade unions will obviously wish to review their tactics in the light of the legislation and are likely to focus on local action by small numbers of workers, where they can be more confident of support.  

But strikes are no longer the main instrument on which trade unions rely in order to protect their members’ interests.  Action short of a strike, such as working to rule or withholding co-operation, may be no less effective than strike action.  In those organisations where relations between employers and trade unions have become a war of attrition, this can possibly do more damage than a strike.  And industrial action increasingly takes the form of protest action, including public demonstrations.  So it feels as if, in targeting strikes, the Government is seeking to address yesterday’s problem. 

Picketing and intimidation
The proposals on intimidation and picketing are a bit of a curate’s egg.  It makes sense to strengthen the Picketing Code, and require trade unions to appoint a picketing supervisor to oversee the action of pickets.  But many newer forms of industrial protest, such as Unite’s “leverage” strategy, either do not involve attempts to persuade workers to break their contracts of employment, or they are targeted at suppliers and customers, rather than workers. 

Intimidation in the course of industrial disputes, whether on the picket line or as part of wider protest action, is, of course, completely unacceptable. Workers and their families should never be subjected to the kind of harassment that took place in the Ineos dispute at Grangemouth in 2013.  Some forms of intimidation can be quite subtle and hard to deal with effectively, such as taking photographs of people going to work, or criticising them on social media. 

However, it’s not clear why problems in relation to intimidation should be a matter for trade union law.  The law on protest action applies equally to trade unions and other organisations and there are a number of existing public order offences, such as assault, harassment and trespass, which may be relevant. The key issue is enforcement, and this is a matter for the police.

Agency temps
The Government is also proposing to repeal the regulation preventing recruitment agencies from supplying temporary workers to replace strikers.  This will fly in the face of international practice: the International Confederation of Private Employment Agencies (Ciett) has agreed a regulatory framework prohibiting the replacement of striking workers by temporary agency workers.  This may not worry the Government too much. 

However, they need to be careful not to claim too much of an impact from repeal of this regulation.  There is the issue of mismatch between the skills required and those available locally on a temporary basis.  More than 90% of workers involved in industrial action last year were on strike for only one day.  It seems unlikely that many employers would seek to take on a temporary member of staff to cover for a worker missing for a single day.  And many professional staff in the health and education sectors, for example, might be reluctant to replace striking fellow-professionals. 

Facility time and check-off
Although it is not consulting on the proposals, the Government also intends to take action to limit facility time for trade union officials, and abolish the practice of check-off, whereby employers deduct trade union subscriptions from public sector salaries.  This seems a pity: many public sector employers value check-off arrangements because they can help validate union claims about membership numbers.  Facility time can also help in creating a positive employee relations climate.  So both check-off and facility time can help public sector employers respond more effectively to industrial action.

Evidence base
In an unexpected move, the independent Regulatory Policy Committee (RPC) has criticised the Impact Assessments underpinning the consultations on the Bill as “not fit for purpose”.  The Committee suggested that little evidence has been presented of significant benefits arising from the proposals, and that “the definition of the problem currently appears weak and must be substantiated'.  Particularly from such a source, this is pretty severe criticism, but from any objective reading of the documents it is not difficult to substantiate. 

The Government may say that its proposals had to be drafted in a hurry, but this would sound a bit thin, since the need for haste is not transparent.  They will get little support from employers who believe in employee engagement and are comfortable working in partnership with trade unions. 

The proposals set the tone for a Parliament in which the Government appears to have abandoned any hope of securing consent to its policies from the public sector workforce, and is making a high-stakes bid for the support of the wider electorate.  Whatever political benefit it may gain from it, it is hard to anticipate any economic benefit, and still harder to reconcile with an aspiration to govern in the interests of “one nation”.  

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  • thanks for this mike, useful overview and logical view of a far from logical approach from "dave". this legislation is now even more interesting now that corbyn is in the labour hot seat and will need to get  on the record very quickly. that aside, what will employers do where this legislation may create some tension between them and their union partners? where documented/long standing partnership agreements are in place perhaps they will agree a statutory minimum "plus" approach and place the new regs to one side in the interest of continuing their progressive er agenda...and im sure some will adopt the regs like lightening! in a profession (hr) where there are fewer and fewer ir-er specialists theres a danger that workplace dialogue will be driven by regs and not a jointly held desire to engage in creative discussion to resolve points of difference.

  • Thanks Mike.  As always, a balanced commentary on what appears to be yet another piece of ill-thought out legislation.  While I can understand the public's frustration at, for example, underground or rail strikes, nationally there has been little impact from strike action in the recent past. This government seems particularly prone to introducing a new policy or legislation to tackle the sympton of problems rather than seeking to address the root cause, and this latest legislation will do nothing to enhance the ability of employers and employees, or their representatives, to engage in constructive dialogue.