The Government’s proposals on strike laws are an outdated response to industrial relations issues currently facing UK employers and could prove counter-productive, according to the Chartered Institute of Personnel and Development (CIPD), the professional body for HR and people development.
The Government’s proposed changes to existing laws on industrial action centre on raising the bar on thresholds for strike ballots, including a minimum turnout of 50 percent of union members entitled to vote and a further threshold for ‘important public services’ where 40 percent of those entitled to vote would need to vote in favour of industrial action; tackling intimidation on the picket line and ‘leverage’ tactics by trade unions; and repealing the ban on using agency workers to cover for striking workers.
In its submission to the Government consultation on the proposals, which closes today, the CIPD highlights that proposals are an outdated response to the challenges of the modern workplace. It says that the number of working days lost through industrial action today stands at less than a tenth of what it was in the 1980s, dropping from seven million days per year in the 1980s to an average of 670,000 per year between 1990 and 2014.
The government is proposing to introduce a new 40 percent ballot threshold for taking industrial action in important public services. This means industrial action in those areas will need the support of at least 40 percent of those entitled to vote. Their consultation sought evidence on whom within the fire, health, education, transport, border security, and nuclear decommissioning sectors should be subject to the new threshold.
“The new proposals won’t make it impossible for trade unions to call lawful strikes,” said Mike Emmott, employee relations adviser at the CIPD, “They will, however, harden attitudes and encourage trade unions to plan smaller, more localised protests to maximise support and make it more likely that the proposed statutory threshold for membership turnout will be met.”
CIPD surveys of employers and consultation with members indicate that relationships with their trade unions are generally good. Instead of focusing on ballot thresholds, the CIPD is urging the Government and organisations to build a better dialogue with their workforce, improve employee engagement and consider alternative methods of protecting the public from the impact of strike action, such as ‘no-strike agreements’.
The government is also seeking to reform and modernise the rules for picketing. The aim of the consultation process in this area was to establish whether the code of practice on picketing should cover use of social media and be extended to include guidance on protests linked to industrial disputes; whether there are other practices for picketing that should be legally enforceable; whether there are gaps in the current legal framework that applies to picketing and associated protests; and to form proposals that aim to improve union transparency and accountability for picketing and associated protests
The Government also invited people to share evidence of intimidatory behaviour experienced during industrial disputes.
“Intimidation in the course of industrial disputes, including on the picket lines or as part of a wider protest action, is completely unacceptable,” said Emmott. “Workers and their families should never be subjected to the kind of harassment that we saw at Grangemouth in 2013. However, we don’t believe that a new criminal offence needs to be created for this purpose. As the limits on lawful strike action become tighter, we can expect intimidation to become a more frequent occurrence in relation to industrial disputes. However, we believe that problems in relation to intimidation in the context of protest action should not, in general, be a matter for trade union law. The law on protest action should apply equally to trade unions and to other organisations undertaking protest action.
“There are a number of existing public order offences, including assault, harassment and trespass, which may be relevant in these situations. The key issue is enforcement, and this is a matter for the police. The CIPD does, however, support the proposal to strengthen the Picketing Code so that a number of key aspects, including the appointment of a picketing supervisor, should be legally enforceable.”
The Government have also consulted on the hiring of temporary or agency workers during strike action and the impact of removing Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. Currently, Regulation 7 prohibits employment businesses from providing agency workers to cover the duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action, or cover the work of an employee covering the duties of an employee taking part in a strike or other industrial action.
The government wants to remove this regulation, allowing employers facing industrial action to hire temporary agency workers from employment businesses to perform some of the functions not being carried out due to the industrial action.
“There is nothing in existing legislation to stop employers from recruiting replacement staff, providing they hire them directly and not through an employment agency, but we have little evidence that employers take this option,” said Emmott on the proposal to repeal the ban on using agency workers to cover for striking workers. “Some employers might be interested in recruiting temporary agency workers to maintain operations during industrial action. However, in most cases they would find it difficult to recruit suitably qualified workers, and few employment agencies will want to get involved in industrial disputes.”
Peter Cheese, CEO of the CIPD, gave his thoughts as part of the statement released by the professional body today.
“Government proposals seem to be targeting yesterday’s problem instead of addressing the reality of modern workplaces. The number of days lost to strike action has dropped by over 90 percent in the last twenty years and industrial action today increasingly takes the form of protest action rather than all-out strikes making the legislation even less warranted.
“It’s time to start talking about prevention rather than cure when it comes to strike action and the public sector’s workforce challenges in particular. Taxpayers’ interests are best served by an efficient, engaged and productive public sector workforce. We need to see more consultation and ongoing dialogue, and engagement with, the workforce, rather than the introduction of mechanisms that reflect the industrial relations challenges of the 1980s. To jump straight to legislating strike activity without considering this seems to be a significant step back.
“These proposals could also have unintended consequences, for example, by creating more division and encouraging trade unions to plan for more localised industrial action to maximise support and make it more likely that the proposed statutory threshold for membership turnout will be met. They may also lead to an increase in unofficial action, which can be hard for employers, trade unions or Acas to resolve.”