Trade union bill could escalate disputes, warns employment law expert

House Of Commons Speakers Table

The government’s proposed trade union laws could escalate disputes and result in employees using more extreme tactics, according to a QC who was asked by ministers to review industrial legislation.

Bruce Carr, who was appointed in 2013 by Francis Maude and Vince Cable to examine Britain’s strike legislation, said it was understandable that the trade union bill was being seen as an exercise in settling old scores.

Unions may be driven to use leverage tactics such as demonstrating outside directors’ homes to take on employers, he said.

His criticisms come as the bill makes its way through the House of Lords where it is expected to be challenged by peers. It is the first time that Carr, one of Britain’s most eminent employment law specialists, has spoken out about the bill.

He was appointed to lead the review on strike legislation following concerns from David Cameron that the Unite union was using “leverage tactics” to target the homes of executives from the chemicals company Ineos.

Such campaigns may involve the use of tactics outside the traditional model of industrial action and may include protests, lobbying of third parties in the supply line and forms of direct action involving managers or shareholders.

In a blog, Carr has written that the draft legislation contains “nothing at all” that can be seen as positive by the Trades Union Congress as it makes disputes harder to solve and is being seen as a direct attack on Labour party finances.

“The irony of the present bill is that if anything, it is likely to increase the use of leverage campaigns as unions seek to avoid what they see as the unfairness of a collection of measures which erode both the lawfulness and the impact of strike action,” he wrote.

“‘Leverage’ may prove to be a more efficient and cost-effective way of advancing industrial disputes than going through balloting processes which may of themselves, serve only to worsen relationships between workers and employers as set out above.”

The government’s claims that electronic voting could be a security risk have been questioned by Carr. “If the trade unions are correct that electronic voting would increase voter turnout, what could be the objection to it, assuming that any security concerns about the process could be met? Surely this would have the effect of extending the democratic process within the ranks of union members?” he wrote.

Under the bill, any action will need to be completed within four months of the date of the ballot. Because of the requirement to give two weeks’ notice, this leaves the union with just three and a half months in which to take action, following which it will be required to reballot.

Carr said this could lead to unions resorting to more extreme forms of action to avoid costs or legal action, and may prompt employers to use delaying tactics.

“From the perspectives of both employer and unions, the industrial strife may not be resolved and may in fact be worsened as a consequence of requiring everything to take place within the prescribed period,” he said.

The bill’s requirement that unions provide a “reasonably detailed indication of the matter or matters in issue in the trade dispute” might lead to more litigation, said Carr.

He added that the dispute between junior doctors and the health secretary, Jeremy Hunt, would have escalated if the bill had been introduced and the four-month time limit applied.

“Could it seriously be said that the 98% voting in favour of the action in November 2015 could not be regarded as a proper mandate for action beyond that date if, as appears likely to be the case, the dispute is not settled before 18 March? Were the proposed legislation in place, the BMA [British Medical Association] would already have to be making preparations for a further ballot of its members,” he wrote.

The bill’s proposal that union members will be required to “opt in” to making contributions to a union’s political fund has also concerned Carr, who said this could result in extreme measures being taken by unions who feel as if they were fighting a “bare knuckle fight”.

Carr’s review was frozen after several months after ministers announced plans to introduce new strike laws.

The review’s terms of reference were limited to an assessment of the alleged use of extreme tactics in industrial disputes, including leverage, which directly targets managers, and the effectiveness of the existing legal framework to prevent inappropriate or intimidatory actions in trade disputes.

If passed, the new bill would make changes to the Trade Union and Labour Relations (Consolidation) Act 1992.

Among other measures, it would mean strike action can only be approved by a ballot in which more than 50% of those eligible to vote turn out.

For “important public services”, any proposed action would have to be approved by a majority of at least 40%.

It could become legal for employers to hire agency staff to cover the tasks of striking workers, although this is subject to consultation.

It was reported earlier this week that ministers were preparing to back down owing to fears that parts of the bill would be defeated in the Lords. The proposed concessions emerged in a letter leaked to Socialist Worker, which revealed the business minister Nick Boles was recommending a partial retreat.

Powered by Guardian.co.ukThis article was written by Rajeev Syal, for theguardian.com on Friday 12th February 2016 16.02 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010