Trade Union Bill: ASLEF evidence to Commons

14 October 2015

ASLEF has submitted its evidence on the government's Trade Union Bill to the House of Commons Public Bill Committee. We say it's hypocritical of the government to try to reduce red tape for business while trying to strangle trade unions with regulation. It’s a variant of the Gulliver concept. That’s how the chairman of the National Coal Board described the Thatcher government’s legal strategy during the miners’ strike of 1984-85. It was designed, he said, to encourage multiple legal actions, each one ‘tying another tiny legal rope around the union until it woke one day and couldn’t move.’ Mick Whelan said: ‘That’s what they’re trying to do to us. We represent ordinary, decent, hard-working men and women, doing a safety-critical job to ensure passengers get the first class public transport service they deserve, and we know this bill is designed to make things much worse for every one of them.’

ASLEF’s views on the Trade Union Bill – House of Commons Public Bill Committee - October 2015

1. The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train driver’s union representing approximately 20,000 members in train operating companies and freight companies as well as London Underground and light rail systems. We represent 95% of train drivers in the country and have some expertise and experience of the issues under discussion in the trade union bill.


2. ASLEF fundamentally opposes the Bill. British labour law is already the most restrictive on trade unions in the western world. Workers in the United Kingdom have fewer rights in relation to industrial action than almost anywhere else in Europe. In fact our existing legislation contravenes international laws and guidance from both the International Labour Organisation and the United Nations.


3. Any state interference in the internal affairs of a trade union is against Article11 of the European Convention on Human Rights. The eminent labour lawyer John Hendy QC has said ‘it is unlawful for a public authority to act in a way which is incompatible with Article 11.’


4. We would point out that the number of British workers covered by collective bargaining agreements has reduced from 82% in 1979 to around 20% today. The Bill will reduce this further. Many economists including the IMF believe that collective bargaining across the labour market is good for the economy in terms of increasing both productivity and wages. High levels of collective bargaining help reduce inequality across the economy. This Bill will therefore bad for the economy.


5. British workers have no right to strike. In fact, the government appear to want to highlight this by insisting that it is stated on ballot papers. The only protection offered to British workers who take legal industrial action is that they cannot be sacked for doing so for 12 weeks. Following this, they can be dismissed for breach of contract. All industrial action in the UK can therefore be considered a breach of contract.


6. Current UK labour law contravenes United Nations legislation. In December 1997 the UN committee which deals with the International Covenant on Economic, Social and Cultural Rights reviewed British law strike law. Despite, Britain being a signatory, they stated that “the Committee considers that failure to incorporate the right to strike into domestic law constitutes a breach of Article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike,and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike.”It therefore seems perverse to force trade unions to state that action breaches contract on ballot papers. Essentially it is repeating Britain’s failure to comply with international agreements to which it is a signatory.


7. ASLEF believes that the government should aim to reduce unnecessary administrative and bureaucratic restrictions on trade unions rather than increase them. By introducing this Bill the government is taking the UK in the opposite direction, further away from international agreements on trade union freedom with more restrictions on unions.


8. The number of days lost to industrial action is at a historic low having stood at an annual average of 12.9 million in the 1970s and just over seven million in the1980s to less than 700,000 per year over the last 20 years. The Bill can therefore only be regarded as an unnecessary, anti-democratic and politically driven piece of legislation intended to silence the voice of working people.


9. We strongly oppose the new requirements on member participation and voting thresholds in industrial action ballots in addition to allowing the use of strike breaking agency workers. It would be irresponsible to allow the use of agency workers in safety critical industries like rail where highly specialised knowledge is required.


10. As previously stated the current balloting requirements for trade unions in the UK are extensive to the point of being onerous. The new restrictions don’t serve any real purpose other than to add to the burden on unions. In ASLEF’s view they are simply a further layer of red tape and more loopholes which will have the effect of making it easier for employers’ lawyers to try to prevent industrial action in the courts. In a recent publication ‘Protect the Right to Strike’ Professor Keith Ewing and John Hendy QC state that ‘the reality is that there is no major problem posed by industrial action in the UK – except that it is so restricted.’


11. Provisions in the Bill to remove facility time are dubious in the extreme and may be illegal. There is a fundamental misunderstanding of the benefits facility time generates both for employers and employees. Researchers at London’s Cass Business School and Warwick Business School suggested the Bill could be“detrimental to the government’s aspirations” to improve productivity. The researchers found that the presence of workplace union representatives is associated with higher levels of productivity. Cass Professor Nick Bacon said:“Overall, the evidence suggests that both full and part-time workplace union representatives help improve performance in the public sector and that managers widely recognise this to be the case. As such, the proposed legislation to limit the amount of time union representatives can spend on their representative duties appear unnecessary and may reduce workplace performance in the public sector.”


12. ASLEF would point out that workplaces with union health and safety representatives and a joint safety committee have half the serious injury rate of those without.Facility time for such representatives is of enormous importance particularly in safety critical industries like railways. Any reduction to available facility time, as proposed by the Bill, could therefore have very series and potentially fatal consequences.


13. We regard the Bill’s provisions with regard to picketing as totally unnecessary,disproportionate and open to misinterpretation. Like so much of the Bill, it is trying to create a set of sanctions and penalties for a problem which does not exist. The Association of Chief Police Officers say the current scope of civil and criminal law in this area is more than adequate.


14. ASLEF is very concerned about the Bill’s provision to require trade union members to opt-in to political funds. We not only regard this as an unwarranted and illegal interference in the internal affairs of a trade union but an attack on the political freedoms trade unions.


15. In its judgement on the ASLEF v UK case in 2007 European Court of Justice referred to ILO Convention 87 on Freedom of Association which gives unions the right to draw up their constitution and rules without interference from public authorities. In holding our right to expel our member the court said state interference could only be justified if it complied with the strict criteria in Article 11 (2). In the circumstances the court did not feel the interference in ASLEF’s autonomy was justified.


16. In its judgement the court also gave weight to our right to choose our members in accordance with our political aims and values, recognising that historically trade unions throughout Europe have commonly been affiliated to political parties and movements, particularly on the Left. The judgement said unions were not ‘bodies solely devoted to politically neutral aspects of the well-being of their members but are often ideological with strongly held views on political and social issues.’ Because our member’s membership of the BNP was in fundamental conflict with the union’s political objectives, we were entitled to expel him from membership.


17. Our case was the first to explicitly highlight trade union autonomy as part of Article 11. Moreover the autonomy upon which the decision was based is not restricted to exclusion on the grounds of political membership. In its judgement the ECJ said ‘trade unions enjoy their own rules concerning conditions of membership including administrative formalities and payment of fees as well as other more substantive criteria such as the profession or trade exercised by the would be member.’


18. John Hendy QC has said this judgement from the ECJ means a union ‘has the right to decide its own fundamental values and objectives.’ He also says that the case‘illustrates that the fundamental political model which underpins the European Court is based on a conception of democracy in which collective, participatory associations such as trade unions form an important part of citizenship.’


19. On this basis ASLEF would argue that the provisions of the Bill in relation to political fund opt-ins should be considered as an over-extension of the state into the internal affairs of a trade union. This excessive reach could similarly be applied to the proposed new role and powers for the Certification Officer as well as the requirement for union annual returns to include details of political expenditure.


20. The Certification Officer is currently an important and respected position which issues certificates of independence and deal with complaints from trade union members about breaches of union rules.


21. The new powers office will turn it into a political attack dog with unlimited powers to investigate the internal affairs of unions even though there has not been a complaint from a member. In addition unions will be expected to pay for all of this. It’s a potentially reckless undermining of a valued public office and, as stated above, may be illegal.


22. To conclude, we believe this Bill has been drafted on the basis of ideology and not evidence. There isn’t a problem with trade unions in the UK. This Bill will add significantly to the already onerous administrative burdens on unions. The mantra seems to be cut red tape for business but increase it for unions.


23. The Bill will be counterproductive and problematic at every level and could lead to strife. It’s an attack on the political and industrial freedoms of trade unions. It will also be bad for the economy. Despite what some think good industrial relations are important to a successful economy. The Bill is regressive and irrational.


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