Trade Union Bill before the House of Lords

Author: Darren Newman

With the Trade Union Bill now before the House of Lords, consultant editor Darren Newman assesses the Government's amendment to the Bill abolishing union dues check off in the public sector. He also asks if the Government's insistence on postal ballots, arguably reducing turnout, is likely to survive the scrutiny of the Lords.

The Trade Union Bill has sailed through the House of Commons and is now before the House of Lords. Opposition to the Bill has been vociferous, but it is votes that count and no concessions were made by the Government during the Bill's passage. Indeed the only substantial amendment made was the introduction of a rule banning check off in the public sector.

Check off is a long-established method of collecting union dues, whereby the employer makes a deduction from an employee's pay and passes it on to the union. This can be done only with the written authorisation of the individual employee concerned, and that authorisation can be withdrawn by the employee giving written notice to that effect (s.68 of the Trade Union and Labour Relations (Consolidation) Act 1992). Employees cannot, therefore, be forced into allowing their union membership subscription to be deducted at source by the employer. Nor does the existence of a check-off arrangement mean that an employee is somehow coerced into joining a particular union. Further, employers cannot be required to administer a check-off arrangement and do so only by agreement with the trade union. It is common for such an agreement to require the union to pay towards the administration of the arrangements - indeed some employers actually make a profit from providing the service.

One great advantage of check off for employers is that it provides a handy way of keeping track of union membership. If an employer collects union subscriptions it will know how many members the union represents in different parts of the organisation. This can be a useful piece of information when the employer is negotiating with the union over issues such as redundancy or organisational change.

This does not then seem to be an area of the law that is ripe for reform. So what is the problem in the public sector? The Government argues that check off is anachronistic now that all public-sector employees have bank accounts and it is relatively easy for them to set up direct debits. That may be true, but it is hardly justification for banning the practice in the public sector. If a council chooses to operate a check-off system, why should the Government prevent it from doing so? A cynic might argue that the real motivation is simply to make life more difficult for trade unions in the public sector, one of the few areas of the economy where they remain relatively strong. It seems strange that, while the Government is seeking to devolve more powers to local government, it is attempting to take away its control over industrial relations.

Another key part of the Bill will lead to Regulations limiting the circumstances in which public-sector employers give paid time off to union officials. Again this is something that is currently a matter for agreement and providing paid time off can give employers a valuable channel through which to talk to the unions via experienced representatives. Limiting the amount of time off that can be given is likely to inconvenience employers as much as the trade union officials themselves - but this is obviously a price that the Government thinks is worth paying.

Much of the debate in the House of Commons was concerned with the new rules on industrial action ballots and the requirement for all ballots to have a turnout of at least 50% of those entitled to vote. Together with the new rule requiring 40% of those entitled to vote to support industrial action in key services such as health, education and transport, this represents a serious hurdle for a union to clear before industrial action can be lawful. The difficulty of obtaining a high turnout comes from the fact that the ballot must be fully postal - the voting paper must be sent to union members by post and returned the same way. These rules were introduced to prevent the possible intimidation of union members by their more militant colleagues that could result from ballots held in the workplace. Voting by post ensures that the ballot is cast privately and without interference.

However, as more and more of our daily life is conducted over the internet, is there any reason why voting in industrial action ballots could not be conducted online? The Government claims to have no principled objection to this. It is, though, concerned that there is currently no system of online voting that is sufficiently secure and transparent to ensure the integrity of the result. However, this is a position that the Government may struggle to hold. The evidence on which it relied came from the Speakers Commission on digital democracy, which identified ongoing concerns about the security of online voting both in terms of verifying the identity of the person voting and in terms of keeping the votes cast by individuals confidential. The Speakers Commission was concerned, however, with voting in general elections, where the result is a new Government. The stakes are much lower in an industrial action ballot, and it should be remembered that individual union members are free not to take part in any industrial action that is called and can sue the union for punitive damages if they are subjected to any less favourable treatment in this regard. There are further safeguards in place; union ballots are subject to independent scrutiny and must be conducted by an independent person. If votes were cast online, the union would not have any access to the data and would be quite unable to "fiddle" the result. Online balloting is widely used in other settings - indeed the Conservative candidate for London Mayor was selected by that method. Is it really unsafe for online voting to be used by trade unions? This may be an issue that the House of Lords takes up. An amendment giving the independent scrutineer the ability to allow an online vote where he or she was satisfied that there was a method available for conducting the ballot fairly and securely would be hard to resist.

perspective@xperthr.co.uk