My Lords, this amendment, tabled in my name and that of my noble friends Lord Mendelsohn and Lord Collins, comes to the crunch that we have been leading up to in our discussions on Clause 12. Clause 13 possibly undermines the rights of working people to be represented at work via a reserve power that allows Ministers—not employers, but government Ministers—to cap the amount of time that union reps can spend on employer-funded trade union work, regardless of the needs of the organisation, existing collective agreements, individual contracts of employment or even the wishes of the employing organisation. So not only does Clause 13 give Ministers a blank cheque, as there is no indication of whether they would cap facility time at one day, 52 days or 104 days a year, but there is no clarity as to what circumstances would give rise to the introduction of this power. Would it be because a general election was coming up? Would it be because a new Secretary of State wanted to burnish their credentials? It is absolutely unclear what would trigger it.
Despite the earlier government amendments, we have no indication of whether if a whole category of employers was to be covered—such as post offices, hospices or care homes—this would involve the Minister making a specific case for each of those sectors. Would the provision be time-limited? Would it be for ever or just to the end of the Parliament? Would it follow any consultation, either with the relevant employers or, indeed, with their trade unions? It would simply allow—and I have to use the word—dictatorial government with a sweep of the pen, given that we are told we must not vote against statutory instruments in this House, to interfere with hundreds of workplaces at the whim of a Minister, limiting lay officials’ facilities in an arm’s-length or, possibly, independent organisation. I do not think anyone accepts that this will do.
The Equality and Human Rights Commission has considered Clause 13’s open-ended powers to make this wide-ranging amendment to primary legislation and said that it could,
“be used to introduce disproportionate interference to freedom of association rights under Article 11”,
of the ECHR. It continued:
“The power to impose contractual changes could also amount to an unjustified and disproportionate restriction of the right to respect for possessions under Article 1, Protocol 1”.
Imposing these new restrictions on rights for union reps is effectively rewriting collective agreements and contracts of employment which have been voluntarily agreed by unions and employers, and is in contradiction of other legislative rights. It undermines Section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992—I am not sure whether that was one from the noble Lord, Lord King—which allows for learning reps. It also undermines Section 10 of the Employment Relations Act 1999, which gives individuals the right to be accompanied—nearly always, of course, by lay reps—in grievance and disciplinary hearings. Furthermore, it appears to break health and safety duties, as we have heard already, under regulations under Section 2 of the Health and Safety at Work etc. Act 1974.
Clause 13 allows the Government to use as yet unseen secondary legislation to put through restrictions or, indeed, to repeal rights contained in primary legislation. The cap could also conflict with EU law, which protects the rights of health and safety reps to paid time off for their training, as well as their duties, and the rights of trade union reps during consultation on collective redundancies and outsourcing under TUPE rights, and information and consultation rights. Furthermore, as I have said, by introducing such a cap, the Government would be breaking existing voluntary agreements between employers and their workforce. In the case of schools, many local facility agreements have been negotiated on the basis of the Burgundy Book agreement on facilities for reps of recognised teachers’ associations. Surely, any proposed changes to facility time agreements, including the funding of them, would have to be the subject of negotiations between the employer and unions. It is really not something for an outside Minister to decide.
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The Joint Committee on Human Rights of the House of Lords and the House of Commons also has serious concerns, noting that the clause would have retrospective effect, although the Secretary of State undertook that any regulations under Clause 13 would apply only prospectively and be a power of last resort. However, neither we nor the Joint Committee know what would trigger the use of such a power of last resort. We do not know how many it would affect or its impact either on employers’ costs or on harmonious industrial relations. No case for this power has been made, despite the fanciful figure of more than £100 million a year being saved from reduced facility costs.
In any case, that assumes that the work done by lay reps would somehow suddenly cease or be undertaken by some full-time employees of the trade unions—despite the fact that such extra union officials, hanging around waiting to be called in to deal with every little query and emergency, simply do not exist. So lay reps will
still have to do the work; I presume it will just not be labelled as facility time so as not to breach the cap. Disciplined employees will still have the right to be represented; agreements will still need to be negotiated; and there is a legal entitlement to reasonable paid time off work for union reps—unless the Government are out to end every single right of employees, which I did not understand to be their aim. Furthermore, that £100 million figure is based on a Parliamentary Answer by a Minister back in 2011, which estimated—with little supporting evidence—that 0.14% of the annual pay bill in the public sector is spent on facility time. Can the Minister spell out in more detail where exactly the figure came from and what is behind it?
Employers report good working relationships with trade union reps, and there is a clear feeling among employers and unions that the Bill will do little to improve industrial relations. We have already heard that research by the Chartered Institute of Personnel and Development shows that employer relationships with unions are good, and it has therefore urged the Government and organisations to build a better dialogue with their workforce and consider alternative approaches. We have heard from the health service very direct testimony of the value of this. South Tees Hospitals NHS Foundation Trust received an award which involved a senior Royal College of Nursing officer, who was part of the integrated management and proactive care for the vulnerable and elderly team and helped smooth a radical restructure of community services. This happens when there is big restructuring, and it is often union reps on the ground who participate in this. Similarly, University College London Hospitals is worried that elements of the Bill would,
“confine trade unions’ ability to engage with us”,
and undermine the relationship that it already has with its lay reps. Nottingham University Hospitals NHS Trust said much the same, as did the West Suffolk NHS Foundation Trust. We have already heard about the worries that the Royal College of Nursing has about this provision, and the other sectors that will be covered have all expressed similar views. Why do the Government want a Minister to be able to come in and break existing agreements? On evidence that we do not yet know, what bar would be put in place after which the cap would be introduced, so that suddenly facility time could be cut? The Royal College of Nursing called for Clause 13 to be left out of the Bill.
I will make one rather obvious point, which was made, in a sense, by my noble friend Lord Collins earlier: union members themselves have views on this. It may not be their subs that pay for time off for their reps, but it is nevertheless the members who elect and choose to be represented by these people. If they thought that reps were wasting everyone’s time withdrawing from their place of work, often leaving the work to be handled by someone else for no good reason, union members would not be slow to make their views known. It is not in their interests to have union reps supposedly acting on their behalf when in fact they are swinging the lead. This Government seem to have such a low opinion of working people that they ignore the role of fellow workers in how their health, safety, learning or union reps operate. I find that condescending, arrogant but, most of all, mistaken.
No case has been made that facility time needs to be trimmed. No evidence has been submitted that there is a call for this power. The net is drawn extremely wide, but there is no detail, as we said on the earlier group of amendments, as to who will be covered or to the circumstances that would bring in this power. Clause 13 has to go. I beg to move.