How unions got their power back

Shantha David and Maggi Ferncombe. Image: Jess Hurd

The Labour government’s Employment Rights Bill (ERB) for Great Britain, whose dozens of clauses UNISON has had a decisive role in shaping, is currently moving through Parliament, with the likelihood of being passed by the summer.

Recent UNISON articles have discussed different ways in which the bill will strengthen the rights of individuals, whether maternal and parental rights, flexible working, protection from discrimination and harassment, or improving the pay and conditions of such maligned members as school support staff and care workers.

Now, Maggi Ferncombe, UNISON’s director of political strategy and transformation, and Shantha David, its head of legal services, talk to Demetrios Matheou about the impact of the bill on collective rights, in particular the ability of trade unions to successfully serve their members without restriction.

Demetrios: Before we talk about the bill itself, can you say something about the climate that it’s seeking to change.

Maggi: Soon after the coalition government came to power, in 2010, the then chancellor decided that the way to revive the economy after the crash in 2008 was to bring in austerity. And the trade union and labour movements were very successful in showing that this response was failing. Public services were on their knees and, by and large, people started to understand that the blame lay with the government and not necessarily with the local hospital or the local council.

UNISON’s response, too, was to continue to campaign for good quality public services, provided by valued staff. And where we could make wins, we did.

Ultimately, because we were being successful in highlighting their failures, the Tory government brought in the 2016 Trade Union Act, which basically tied the hands of any union when it came to facilitating a member’s right to withdraw their labour when they were unhappy and being treated unfairly.

It was impossible for us to get over the 50% ballot turnout threshold that they’d imposed for our large national service groups. We couldn’t picket as easily when we were on strike. We couldn’t protest as easily. And so much more. They tried everything to diminish trade union power and the power of collective action.

It’s a very potent example of a government using the law in a draconian way.

Shantha: It is. Laws were introduced to limit the rights of workers and their trade unions. There were consultations, which we responded to fully, but knew we’d be ignored because the government had already decided what they were going to do – which was demonstrated by the speed with which legislation flowing from the consultation was introduced!

The Trade Union Bill was seen by both workers and employers to be unnecessary, not least because we already had the most draconian trade union laws in Europe.

Maggi Ferncombe. Image: Jess Hurd

Maggi: We called it pernicious at the time. Not only did the government impede a trade union when attempting to collectively organise and amplify its members voices when they were treated badly at work, but it also introduced charges for paying subs at payroll [known as DOCAS], it brought in facility time recording for reps … Employers didn’t want these things. We didn’t want them. The only people that wanted them were the Tory government, because they thought it would make our life more difficult.

Shantha: The difference with this new government is that they have listened to us and are making tweaks and changes in response to what we are saying. An example of this is when we reminded them that they had promised to extend the time limit within which most employment law claims can be brought to tribunal from three to six months. This change wasn’t in the first version of the ERB, but it is there now.

Moving to today. Does the ERB abolish the Trade Union Act?

Maggi: So, technically, they’re not simply repealing the act. And part of the reason is that, if that were to happen, we would have to go back to the previous law, which is about 30 years old, which states that if you ballot successfully for strike action you have to strike within four weeks, which really hampers our ability to organise a campaign on the issue and negotiate with an active strike mandate.

So, we’re calling it repeal and replace. And they will do it in stages. The reform of trade union law is going to be the first thing that happens when the ERB is passed, but it’s likely to take towards the end of the year before it’s complete.

Let’s talk about some of the benefits, starting with trade union rights of access and recognition.

Shantha: The right of access to workplaces is much improved. And a clause in the ERB requires employers to give workers, from day one of their employment, a written statement of their right to join a trade union. This idea that people are actively told they can join a union is novel, and so important. And the bill refers to ‘workers’ rather than ‘employees’, so this right is not limited to employees who have a contract of employment, but includes people who could be agency workers.

When we first saw the ERB there was no provision to allow collective bargaining around zero-hours contracts. One of the first things we asked for was that people on these contracts be included in collectively agreed terms. This change is now in the bill.

Maggi: I’ve spent far too many early mornings standing outside a building, a care home or hospital, catching people before they go on their shift, handing out leaflets, encouraging them to join the union or come to a meeting in a local cafe, because we weren’t allowed in the building. The new law says that access should be granted to ‘recruit, represent and support members’. So we only need one member in that workplace to be able to get access to it, whereas, up until now, an employer can say, ‘No, this is private property, you’re not recognised, you can’t come in’. This alone is going to make life so much easier for our activists and staff.

Shantha David. Image: Jess Hurd

Shantha: Trade union recognition will also be less onerous, with the thresholds for recognition reduced. So, if a group of workers want to get together and be recognised, it’s now easier for them to do that.

And of course, one thing my team sees all the time, as lawyers, is that if a trade union has access to an employer, problems are resolved far quicker and the reliance on the tribunal system to address individual issues and grievances is lessened. Everybody wins.

Maggi: We know that giving access and recognising a union ultimately has a cost benefit for an employer; issues are dealt with much more quickly, they are less likely to have to spend time, energy and money on dealing with individual legal claims and a higher turnover of staff. Despite what the press and business lobby are saying, this is a win for unions and employers alike.

The bill also unties those trade union hands when it comes to balloting members and conducting industrial action.

Shantha: The introduction of electronic balloting for trade unions is a significant aid to democratic participation. The easier it is for people to vote, then the more people who do vote.

Maggi: I agree. E-balloting is a bit of a game changer. Plus, we’ve got the removal of the minimum service levels, the removal of the support threshold, the reduction of the information we have to provide to employers on strike notices, and the notice period going down from 14 days to 10. The picket code will be gone – the ridiculousness of having to wear arm bands and all that.

Another thing, which is a factor with fresh disputes, is that at the moment when you have a ‘yes’ vote in an industrial action ballot, that mandate is live for six months; if, at the end of this six months, you haven’t resolved the dispute, you need to re-ballot your members. Well, that ballot mandate is being extended to a year, which is another very significant change, allowing the union more time to hopefully negotiate a successful resolution of a dispute.

It’s right to say that strengthening the union’s ability to strike also improves the chances of avoiding action.

Maggi: Absolutely. The last port of call for any worker is to take strike action. And as a trade union, it’s our responsibility to ensure that we have exhausted all the proper procedures and put pressure on employers to take their responsibility seriously in trying to resolve the dispute, without our having to go on strike.

By having the ability to organise our members, to amplify their voices with employers and – as a last resort – take industrial action, the likelihood of us getting to that point diminishes. As a negotiator, when you walk into the room with the employer knowing that you’ve got 60%, 70% density of the workforce, it’s highly unlikely you’ll be walking out of the door saying, ‘Right, we have no option now but to go on strike’. An employer will recognise the threat of industrial action, the impact this will have on services, and will be more likely to attempt to negotiate an agreement.

There are also major changes for reps.

Maggi: The equality rep is now a recognised role that will attract facility time, which is, again, a game changer. For UNISON, equality is at the heart of everything we do. The government also has the Equality (Race and Disability) Bill working alongside the ERB. If we have equality reps, trained and accredited and with facility time, the work they will be able to do to hold employers to account when it comes to race and disability pay gaps – and, more importantly, the action plans they produce to reduce those pay gaps – is going to be really significant.

And for all reps, there’s an incredibly useful reversal, if you like, of facility time recording.

Maggi: Yes, under Tory law the onus has been on the rep to justify why they need facility time. And this onus is being flipped. It’s going to be on the employer to argue why the rep doesn’t need facility time.

We keep saying that the raft of changes introduced with the ERB shifts the balance of power to a more equal footing between an employer and its workers. And these changes involving reps are a good example of that. The equality rep role and the ability of accredited stewards to attract the facility time they need without having to answer for every minute they’re spending, will again strengthen the power of our members in the workplace.

As an organiser I used to say to members quite regularly – and it broke my heart – that employment law isn’t written for you, it’s written for the employers. Well, the ERB changes that.

The government is also using the bill to follow up UNISON’s victory in the Supreme Court, involving member Fiona Mercer, protecting workers against receiving detrimental treatment for taking part in industrial action. 

Shantha: The UK Supreme Court found that the current protections in UK law against detriment did not comply with article 11 of the European Convention on Human Rights, which relates to a person’s right to associate and organise.

To give it some context, Fiona, a care worker, took strike action over her employer’s plans to cut payments to care staff who worked sleep-in shifts. Her employer wasn’t happy, singled her out, suspended her and barred her from going into work or contacting colleagues during the action. While law protects an employee who participates in industrial action from being dismissed, it doesn’t protect them from suffering detriment like this.

The Supreme Court made its first ever declaration of incompatibility in the employment law context, and their ruling was an alert to Parliament to issue legislation to correct the position in domestic law. This is a big deal, because the decision came under the previous government’s watch and they did nothing about it, but this government has agreed that there is a problem, and a gap in the law. So, it has made an amendment in the ERB that you cannot suffer detriment for participating in industrial action.

And they’ve gone further, because they will award compensation when you bring a complaint under this section – so there’s a penalty for employers for failing to comply.

To what extent is the ERB forging a new relationship between the unions, government and employers.

Maggi: I would say that the bill modernises trade union law, and part of that modernisation is correcting what the previous government allowed to happen – tying our hands with the 2016 Trade Union Act being a big example of that. Not only are they removing those restrictions, but they’re also enhancing the rights of trade unions to properly represent their members.

From an activist perspective, they will now be able to concentrate on representing members, collective bargaining, negotiation, knowing that when we can’t resolve a dispute – and we’re never going to resolve them all – taking strike action will be easier.

So, the landscape of how activists work in the workplace will shift. They will have a lot more influence with the employers and be better able to represent their members.

What more is there for UNISON to do as the ERB becomes law?

Maggi: Royal Assent will put the law on the statute books. How some of that law is implemented is going to be down to secondary legislation and codes of practice.

So, our job as a union will not end when the bill is passed. There is still a massive piece of work to be done, because there will be consultations with government departments on how different parts of the legislation are to be implemented, what the secondary legislation will look like, what the codes of practice will look like – ensuring that it’s all in the best interests of the union and its members.

And then we must ensure that we as a union – our branches, our activists, our staff – are ready to hit the ground running as soon as these things are delivered in our members’ workplaces, and the Employment Rights Act becomes a reality.

An introduction to the ERB

UNISON’s crucial role on the road to the ERB