My Lords, the amendments in this group were due to be debated on Monday night. I recognise that we have quite a few amendments and clauses to deal with in this composite group. The Minister has said that she is in listening mode. These amendments are designed to probe and query the reasons and justifications for these measures. Clauses 4 and 5 are definitely not in the Conservative Party manifesto, and it is arguable that Clause 6 is. We look forward to what the Minister has to say and to her answers to our questions.
As I have said in debates on other clauses, the Bill does very little for trade union members or to promote good industrial relations. What is does is place greater regulatory burdens on unions and hinder the speedy and amicable settlement of disputes. Today, we seek evidence to justify change and of whether alternatives were considered. Our concerns about these clauses are that the evidence on the problems is non-existent and the rationale for legislative measures does not stack up. We would also like the Government to be as expansive as they can be on what they intend to include in, and exclude from, secondary legislation. The Minister will need to explain the Government’s stated expectation of these measures and the millions of pounds of additional cost to trade union members and trade unions.
The impact assessment suggests that these measures and Clauses 7 and 8 are expected to reduce strikes by 5% and contribute £1.2 million to UK output. In a series of measures that are more likely to prolong disputes, that a pretty strong claim. Will the Minister outline how this will make such a difference and whether the measures are proportionate?
In relation to Clause 4, trade unions need to be clear about what they are asking their members to vote for so that they can make a fully informed decision, but there is no evidence that they are not clear under the current arrangements, or a jot of evidence that members or employers feel unable to grasp the issue in the ballot. Unions are required to ask members what type of industrial action they are willing to take part in; for example, strike action, action short of a strike, a work to rule and so on. The employer receives a copy of the voting paper.
Some employers to try to frustrate the ballot by legal challenge and injunctions and with threats and costs. Some firms can be very inventive, creating a web of different companies to demonstrate that the complex intercompany arrangements mean that multiple ballots need to take place. The management is not obliged to provide any data to help clarify the company delineations and the members concerned. That speaks to one of the problems with the Bill, which is about balance in measures on management and its responsibilities and requirements. When we tried to rebalance these measures, we were told they were out of scope and not to do with trade unions. Is this view shared by the Minister?
In another place, Nick Boles’s entire evidence base for Clause 4 was that he had two such ballots and did not understand what they meant, and that he felt the use of the words “redundancy” and “pay” was insufficient. This shows absolutely no understanding of the context in which staff are notified of redundancies, in keeping
with statute, or how pay is negotiated. I know that the Minister has practical experience of this, and I hope that she can clarify his words today. I suspect that there were fewer unionised staff in Policy Exchange than there are in Tesco, which has a fully unionised and recognised workforce.
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The crux of this debate is what is meant by “reasonable detail”. Will the Minister please provide a few examples? What specifically needs to be given on the date? What would be acceptable and what would be unacceptable? Will the Minister consider that very specific detail may be against the management’s wishes? In those circumstances, would it still want the detail specified?
Our amendments in this group seek to rebalance the Bill. Perhaps I can set out how they would work in relation to these clauses. Amendment 23 suggests an alternative, practicable proposal that voting papers should simply outline the trade dispute to which the proposed industrial action relates. In the same vein, Amendment 24 adds that the voting paper should include a description of the trade dispute. These may be minor probing amendments, but what, in the Minister’s opinion, would be an ideal ballot paper? Would it be a 200-word essay, or would it be so complex, with so much information, that no one would be able to make a sensible decision?
Unions are already required to ask members on the ballot paper about the type of industrial action they are willing to take—that is, strike action or action short of a strike. Now the ballot paper must also include a statement alerting members that, if they take industrial action, it may breach their contract of employment, reminding them that they have no protection from dismissal if their action is unofficial; their right to such protection is limited to official action. This seems an appropriate amount of information and in no way misleads workers or members as to the purposes of the ballot, as the Minister will no doubt argue.
Amendments 25 and 26 delete new subsections (2D) and (2E) on the basis that they are too prescriptive and add next to nothing to the process—certainly not to the value of the content of the voting paper; in fact, they will serve to frustrate constructive employer-union negotiations. For example, in some disputes it would be difficult for the union to predict how employers would respond to strike action and how quickly they would be willing to negotiate a settlement. It would therefore be very difficult for unions to predict when they would plan industrial action and the form the action should take, making new subsections (2C) and (2D) futile.
Amendment 27 ensures that unions would not be required to comply with the new complex rules set out in the clause if they reach an agreement with the employer about the information that should be included on the voting paper. Again, that is a sensible way to find amicable settlements, with unions and employers agreeing together without interference from the state.
Amendment 28 establishes an alternative procedure whereby unions would be required to submit a copy of the voting paper to the scrutineer, who will evaluate the text, so avoiding the potential for legal challenge.
This would mean an independent assessment of the content of the voting paper so that employers were not able to initiate, as I say, vexatious litigation.
Clause 4, on the information to be sent to members about the result of a ballot, will mean that unions are required to provide more detailed information on the outcome. This represents an additional burden that would particularly impact on smaller unions. Under Section 231 of the 1992 Act, trade unions are already required to inform members and relevant employers about the results. Unions have to follow quite a complex process and there have already been a number of challenges to that process. Case law is being established.
We also support Amendments 29, 30 and 31, tabled by the noble Lord, Lord Stoneham. They would remove the requirement on unions to inform members and employers of whether the 50% turnout and 40% threshold has been met. Amendment 32 proposes that the unions should be required to take such steps as are reasonably necessary to ensure that all members who are entitled to vote in a ballot are informed of the result of the ballot. This would mean that unions would be expected to use the usual methods of communication, including websites, newsletters, notice boards, emails and so on.
Clause 5 appears to be another pointless measure which serves to add to the burden of unions, with little indication of what purpose or value it will generate. We have given notice of our intention to oppose Clause 6 on the provision of information to the Certification Officer, as we believe that this measure needs to be considered in tandem with the latest section on the massive extension of the role of the Certification Officer, a role that is turning the officer into a regulator, an investigator, judge and jury, shifting it away from serving and protecting the interests of members and towards employers and campaign groups at the direct expense of trade union members. Nick Boles rather gave the game away in Committee in the other place when he made the point that the Certification Officer was now going to play a role in industrial action. It would be better to defer this matter until it can be properly considered later in the Bill. Given the huge concerns, including profound human rights objections, the Government will need to do some persuading about the nature of the Certification Officer, what data are collected and how they are used.
Detailed examination of the impact assessment does not provide an evidence base for either the scale of the problem or the scope of the solution. The impact assessment is wrong on cost and on behaviour. The measures for regulations are piling up and there is no evaluation of the existing law or of the flaws or effectiveness of the arrangements. If it ain’t broke, why fix it? Is this another round of gesture politics? It is clear that these measures will add cost burdens and bring about a huge extension of the scope of legal challenges, as well as the creation of open-ended opportunities to frustrate legitimate trade union activity.
Underlying that is a strong view that the Bill is flawed and that it does not account for management as a significant actor in the process; it only assists and encourages backward and poor management practices, which are a major and continuing source of our
productivity and competitiveness gap with our major competitor countries. I hope our concerns are similarly shared by others around the Committee.