Trade Union Bill — House of Lords, 2016-02-23
Topic: Civil Rights
Dianne Hayter (Labour, Centre-left): 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.