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I was the Head of Policy and Public Affairs at UNISON Scotland until my retirement in September 2018. I now work on several policy development projects, so all views are very definitely my own. You can also follow me on Twitter. I hope you find this blog interesting and I would welcome your comments.

Tuesday, 25 August 2015

Trade Union Bill and Scotland

The Trade Union Bill is an unwarranted interference in devolved public services and will wreck the modern approach to industrial relations in Scotland.

Today's STUC conference was a first opportunity for the movement in Scotland to give detailed consideration to the UK government's latest attack on employment rights. The Bill, through minimum ballot thresholds and restrictive procedures, seriously curtails the possibility of legitimate strike action and even protest. It also attacks the ability of unions to represent their members (via facility time) and raise subscriptions (through employer check-off/DOCAS) from members. Unions are also to be burdened with more 'Red Tape' and be charged for it, from a government that claims to want to reduce regulation! There is a useful TUC Briefing and activist pack that sets out the provisions.

The conference started with a session on the Bill's provisions and followed on with sessions on organising approaches, industrial relations and legal issues. I contributed in the panel session and covered Scottish legal issues, our approach to industrial relations and campaigning.

At this early stage of the legislative process (Bill has only had its First Reading) we should start by examining the scope for a different political/legal approach in Scotland. It is difficult to get this legislation into Holyrood because employment law is reserved. There is a specific reservation in Schedule 5 of the Scotland Act 1998, 'Employment rights and duties and industrial relations'. The Bill largely amends TULRCA 1992 which is included in the list of legislation covered.

Unsurprisingly, the UK Government's delegated powers memorandum says the Bill is reserved and therefore no Legislative Consent Motion (LCM) is required. There is no consideration of the interplay with very different Scots contract and criminal law. In my view that is challengeable and we should seek to persuade the Scottish Government and Parliament to claim that there should be an LCM. This would create an opportunity for different approach in Scotland.

Some aspects of the Bill such as strike ballots, Certification Officer etc are all clearly reserved. However, the provisions on facility time and DOCAS are more about public administration which is devolved. This is reinforced by the policy justification which focuses on public spending and the fact that these provisions only apply to the public sector.

There is also scope for challenges under the Human Rights Act. The ECJ has given member states a wide 'margin of appreciation' given the different industrial relations systems in Europe. However, some of the proposals are so extreme that they may not be regarded as 'proportionate', the key ECHR test. In addition, the Scottish Government and public bodies have human rights obligations which justify them resisting this legislation.

We also need to consider the Bill in the context of Scottish industrial relations. As the recent 'Working Together' review showed, there is a distinctly different industrial relations culture in Scotland and this is being taken forward in the Fair Work Convention. This is particularly the case in the public sector - the target of this UK legislation.

We know from polling that Scottish public opinion is more strongly against many of the Bill's provisions and that is reflected in political positions, with all but one MP in Scotland opposing the Bill. The idea that a UK Government can direct the detail of industrial relations in a Scottish council, health board etc is simply wrong post-devolution.

It's not just trade unions who can see the damage the Bill will do to industrial relations. It could result in more small disputes, wildcat strikes, other forms of protest. As ballots will only have a four month life span, this may result in more intensive disputes that will be all the more difficult to resolve.

The Bill also strengthens the case for devolving employment law. We argued this case before this Bill and we do so because of the different approach in Scotland, not just because don't like the current UK Government.

Finally, we must take our arguments against the Bill to our members and the wider public. The UK Government's case isn't even consistent. For example, DOCAS is used for many purposes, some encouraged by government such a payroll giving, credit unions, sports clubs etc.

We should build support on the threat to wider employment practice as well as the Bill's provisions. This is because the Trade Union Bill is aimed at weakening workers ability to resist bad employers.

The New York Times report on Amazon has sparked a lot of interest on poor employment practice The Herald followed it up with a story of one Fife worker's experience at Amazon. Will Hutton in Sunday's Observer analysed the role of corporations concluding, 'once firms cherished their employees, now they are disposable'. Or as Ian Bell in The Herald put it, 'A vanishingly small minority is waging a war for control over the majority'.

Issues like widening corporate pay, work intensification, insecure work and low pay are increasingly becoming understood by a wide range of employees, not just lowest paid. In many ways the shock over the Amazon story was that it all happened to white collar staff in a HQ setting.

This isn't just bad for workers, it's bad for the economy. The Tory party is in hock to the hedge funds and corporations that promote a failed economic model. As Will Hutton points out, growth, productivity and investment has crashed during the twenty years of this corporate dominance. Professor Keith Ewing today aptly described this as a 'global virus'.

There will be a lot of discussion in the coming months on how the trade union movement should respond to the Bill. A number of campaign events have already been organised. Legal arguments can inform political argument, while recognising it's not the full answer. Imaginative action on a number of levels will be required. A starting point is to examine the legal and political options, emphasise the different Scottish industrial relations culture, and campaign on our arguments including the wider context about world of work.

In simple terms this Bill is about destroying trade unions at the behest of the UK government's corporate funders. The Tories are saying you shouldn't belong to a union and if you do we will make it virtually impossible for you to take collective and political action to defend your job, pay and conditions. The public sector is being targeted because unions campaign against their planned destruction of public services, but they will come for the private and voluntary sector next. It's time for us to mobilise the majority to wrest control back from the minority.



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