My Lords, there are two clear issues to consider in relation to this clause. The first is whether there is a case for an expiry of mandate and about the timing. The second is the most extraordinary own goal and, I suspect, the most unwanted measure in this part of the Bill: the abandonment of the requirement for some sort of action within 28 days. The evidence is clear that most disputes settle within or around 28 days of a ballot result, with the requirement for some action to be taken by the end of that period. It makes no sense, particularly in the private sector, to prolong that to four months. It would create uncertainty in a system that we have operated for a substantial period to have a ballot and then the action described in that ballot, whether it is on the ballot paper or not, taking up to four months rather than 28 days.
Our concern over the proposals is helpfully explained by the impact assessment, which states:
“We have not been able to quantify how this time limit will affect the number of working days lost to strike action, since we do not have data to reliably estimate the number of strikes across the whole economy which occur more than 4 months after the result of a ballot”.
So the Government have no idea what the effects of this change will be for industrial relations. It also notes that under current law it is for the courts to determine,
“whether a ballot mandate is still valid and that includes assessing whether there has been a substantial interruption in the industrial action”.
It is important to note that there is no freedom at the moment for a union to invoke, simply out of the blue, a ballot result from years ago. That is not the current situation.
One point that the Government have raised in support of having a four-month time limit, to which they refer in passing in the impact assessment and which was raised in Committee in the Commons, is that staff turnover means that not exactly the same group of employees will be there one or two years on from the date of the ballot. If the Government use this line today, and the Minister picks it up, it is worth being aware that any statistics for staff turnover that they cite in making this point tend to be for all employees, including those in non-unionised workplaces, in which staff turnover is significantly higher. In unionised workplaces turnover is significantly lower. The most recent ONS data covering 2014 show that across union members, 92.5% have more than a year’s service in their job. So the argument that staff turnover after just four months should invalidate a ballot, irrespective of the views of the remainder of the workforce who voted in it, is weak.
The Government’s argument is that 12 months is too long to live with uncertainty. The simple fact is that the Bill is constantly creating longer periods of uncertainty. An unresolved dispute is an uncertainty. Talks and negotiations are far better than strike action. The four-month limit just provides for a prolonged series of processes that will keep that uncertainty. Attrition does not seem a modern approach to effective management and employee-employer relationships.
The Government are introducing a time a limit for ballot mandates in reaction to specific things, particularly in the public sector, but there is no relationship in this
to real life and the real industrial relations situation in the economy as a whole. If the Bill becomes law, unions will no longer be required to start industrial action within the first four weeks. Where a dispute remains unresolved after four months, unions will have to ballot again. Again, this will create uncertainty. If there are difficult negotiations, why are we saying that we should take employers and unions up to the top of the hill again within four months? If this is the process that the Minister wants, we will end up with a situation in which unions will not be able to have a positive influence and will not be able to ensure that after people have been marched up to the top of the hill they can be marched down again.
We see evidence of that at the moment in the Government’s approach to industrial relations in the health service. They inflict a situation on people in which positions become entrenched. Industrial relations are about reaching amicable settlements. Negotiations are about bringing two parties together. Industrial action and the threat of it occasionally help to bring those two sides together. Some of the proposals in this Bill will have completely the opposite effect to what they are apparently intended to have.
The Government cite the basis for legislation on this as being due to the cases where unions have threatened strike action on ballots that took place over a year ago. I suspect I know the examples that the Minister will cite, but can she give me specific examples? How many are there beyond the four cases mentioned in the impact assessment? How many are there in the private sector and how many in the public sector? We need to know the evidence before we simply take on board these measures.
5 pm
The main focus of this proposal appears to be public sector disputes. Instead of worrying about four-month mandates and whether mandates have been exhausted, perhaps we should have more focus on negotiations. One of the main reasons for protracted disputes has been the Government’s refusal to negotiate. The TUC, in its statements on the Bill, believes that rather than imposing additional restrictions on workers’ abilities to strike, the Government should seek to engage in genuine negotiations—that is something that should happen, very importantly today, in the health service. Does the Minister agree that rather than imposing restrictions, she should be arguing for constructive negotiations? What efforts are the Government making to facilitate better union/employer relationships?
I come back to the point made by my noble friend: this is a Trade Union Bill. It can focus only on trade unions. Unfortunately, it cannot recognise that the reality of life is two sides negotiating and coming together. I believe this clause will create substantial legal and administrative costs for unions, which will be forced to reballot instead of working hard to seek a negotiated settlement. Unions estimate that they spend at least £1 per member on ballots, and the postage costs of member communications alone are substantial. The Government’s impact assessment states that familiarisation with the new balloting rules will cost unions more than £500,000 in the first instance. I suspect most of that will go to lawyers, who get heavily
engaged in industrial relations. As many of us know, when you bring lawyers into a situation it ends up in prolonged difficulties, rather than mutually agreed negotiations.
In some cases, these proposals could create an incentive for employers to sit out a dispute rather than engage in genuine negotiations, so it could reward bad employers. Unions will perhaps feel pressurised to organise earlier industrial action to avoid the cost of reballoting. It could end up with unions ensuring that they tick the box and take the action to avoid coming into conflict with the law, adding to conflict rather than seeking mutually agreed settlements.
Amendment 35 extends the ballot mandate from four to 12 months. At present, unions are required to start industrial action within 28 days, but they can agree with employers to suspend proposed action to allow more time for negotiations. If talks break down, the union can take action. Will the Minister indicate why the Bill does not include an equivalent provision? If there is not that sort of provision, the consequence of these clauses will be to force industrial action, which is what we are seeking to avoid.
Amendments 36 and 37 probe the date by which the four-month period is due to begin. I know it is not a vital issue, but when would the four-month period start? Is it the date of the ballot? What is the date of the ballot? Is it the date it opens or the date it closes? I can see that these things will become critical when action needs to be taken at the end of a period, and then we will end up with legal challenges. It can make a significant difference to the period in which action may be taken. The beginning of the end of a ballot period is over two weeks, and you could end up with this uncertainty for a number of weeks.
The four-month limit in Clause 8 imposes a far shorter window. No action may be taken until a fortnight into the dispute, and after two months, if the dispute is ongoing, the union’s thoughts will inevitably turn to that ticking clock. It will be thinking that, before the end of the four months, instead of going to negotiations, perhaps it should better start preparing for the next industrial action ballot. So the period for negotiations is far shorter. At the end of the day, it is about what brings two sides together. There is no doubt that, in any negotiations, loss and costs are an important factor.
There is another way in which this clause might make industrial relations worse. Since it leaves the union with a short window in which to take action before it needs to reballot, it incentivises the union to take significant action to force the employer’s hand in a short period of time. Of course, balloting is an expensive process, especially when it has to be carried out by post, so unions will be keen to avoid this. For this reason, they will be under pressure from their members not to hold back in disputes. Have the Government really thought through all the consequences of these clauses, or are they simply a reaction to some of those four cases that I referred to earlier? The Minister has to give us the Government’s assessment of how the current deadlines affect a dispute; that would be useful to know. Why are the Government denying employers and unions the ability to agree to extend the deadline that they are imposing in Clause 8?
Why not allow negotiations to take place? Surely this seems a logical and beneficial step for both sides of any dispute. I beg to move.