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Is the Government’s recent Trade Union bill compliant with the European Convention on Human Rights?

Is the Government’s recent Trade Union bill compliant with the European Convention on Human Rights?

By Ed Williams and Sarah Fraser Butlin

In what has been billed as the biggest crackdown on trade union rights for 30 years, the Conservative government have published a draft Trade Union Bill along with three separate consultation documents on ballot thresholds in important public services, hiring agency staff during industrial action and tackling intimidation of non-striking workers.

Echoing the scale of the 1985 changes introduced by the then Employment Secretary Norman Tebbit, the Bill proposes:

  • That any industrial action will require a 50% turnout AND then 40% of eligible voters must vote in favour of industrial action which affect important public services. The so-called “double threshold” (which public services are to be deemed “important” is not yet defined).
  • the ban on using agency staff to cover striking workers will be lifted.
  • there will be a 4 month limit on a strike mandate, after which another ballot is required (this won't apply to ballots taking place before the Act comes into force, assuming it is passed). This is to avoid the situation where strikes are based on a 2 year mandate.
  • more specific requirements for the wording of the ballot paper.
  • banning automatic opt-ins to political donations from trade union subscription fees.
  • the amount of notice of a strike to be given to an employer will be increased from 7 to 14 day.

The Government say such changes are necessary to prevent strikes on the railways, the London underground and in schools that are based on small turnouts or two-year-old ballot mandates.

Critics of the bill point out that the scale of the proposals fails to reflect industrial reality. The number of working days lost due to strikes was 704,000 in the 12 months to April 2015, as opposed to the near 13m days lost on average during the 1970’s.

Somewhat optimistically the Business Secretary Sajid Javid has declared at the start of the bill that the draft proposals are compatible with the European Convention on Human Rights.

It is difficult to see how that can be. The double threshold requirement will lead to fewer strikes. The 14 day notice requirement and ability to hire agency workers will give employers the opportunity to hire a whole new workforce before the strike takes place.

So the proposals as currently drafted will be vulnerable to a challenge that they are a disproportionate infringement on the Freedom to Associate guaranteed by Article 11 of the Convention.

A more proportionate way of ensuring greater participation in balloting for strikes would be to allow for electronic balloting. It is an anachronism that in the digital age Trade Unions are required to organise ballots as if they were operating in the 1970’s. If legislation was introduced that would allow for proper e balloting then it is likely that David Cameron’s call for more members of trade unions backing industrial action would be met without the need for such wide sweeping reform of UK Trade Union law.

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