RIGHT TO STRIKE

HC Deb 29 March 2004 vol 419 cc1348-56

'For subsection (2) of section 221 of the 1992 Act (restrictions on grant of injunctions and interdicts) substitute—

(2) No injunction or interdict shall be granted to restrain exercise of the right to strike by a trade union or any workers.".'.—[John McDonnell.]

Brought up, and read the First time.

John McDonnell

I beg to move, That the clause be read a Second time.

Madam Deputy Speaker (Sylvia Heal)

With this it will be convenient to discuss the following:

New clause 11—Dismissal in connection with participation in official industrial action—

'(1) Section 238A of the 1992 Act (dismissal in connection with participation in official industrial action) is amended as follows.

(2) In subsection (1) for "employee" substitute "worker".

(3) For subsections (2) to (8) substitute—

(2) For the purposes of subsection (1) above a worker takes protected industrial action if he reasonably believes he is so doing.

(3) The obligations on the worker to work and on the employer to give consideration therefore under the contract under which a worker works shall be suspended by operation of law for that period during which the worker takes protected industrial action and shall in no circumstances be or be regarded as broken by reason of his taking protected industrial action.

(4) The Secretary of State shall make regulations which shall apply to deal with the consequences of suspension of contracts in accordance with subsection (3) so as to protect the various interests of workers and employers and in particular to ensure the preservation of the contract and the restoration of the obligations thereunder when the protected industrial action concludes.

(5) Loss of pay during industrial action (whether protected or not) shall never be greater than the sum which the worker would have earned had he not taken the industrial action.".'.

New clause 12—Right to strike ( No.2)—

'(1) The 1992 Act is amended as follows.

(2) Before section 219 (but after the cross-heading immediately preceding that section) insert—

218A Right to strike

(1) A trade union has the right, and it shall be lawful, to call for or to support or encourage workers to take industrial action as a means of resolving or seeking to resolve any dispute or as a means of achieving or seeking to achieve any object which relates to any workers' interests at work including (without prejudice to the generality of the foregoing) economic and social matters which affect any workers or the trade union or on which the trade union has a policy.

(2) Every worker has the right, and it shall be lawful, to take industrial action as a means of resolving or seeking to resolve any dispute or as a means of achieving or seeking to achieve any object which relates to any workers' interests at work including (without prejudice to the generality of the foregoing) economic and social matters which affect any workers or the trade union or on which the trade union has a policy.

(3) In this Act 'industrial action' shall include the act of peacefully assembling and of picketing or refusing to cross a picket.".

(3) Omit sections 219, 220, 222 to 235A and 240 to 246.'.

New clause 13—Ballots on industrial action—

'(1) The 1992 Act is amended as follows.

(2) Before section 226 (but after the cross-heading immediately preceding that section) insert—

225A Ballots on industrial action

(1) The rules referred to in section 3(2)(a) shall contain provisions requiring a ballot to be held (save in exceptional or emergency situations) of members which the trade union reasonably identifies as those likely to be invited by it to take industrial action and those rules shall be approved by the Certification Officer as reasonable, and such approval shall not be unreasonably withheld.

(2) No person or body other than a member of the union concerned may bring legal action which relies to any degree on an allegation that the balloting obligations of the union have not been met.

(3) Omit sections 226 to 234A.'.

New clause 17—Industrial action: deduction from wages—

'When a worker has taken part in official industrial action, the employer may not make a deduction from the worker's wages in respect of that action which exceeds the amount which the worker would have earned if he had not taken part in that action.'.

Amendment No. 10, in page 18, line 38, leave out Clauses 21 to 23.

Amendment No. 11, in page 48, line 47 [Schedule 2], leave out from beginning to end of line 3 on page 49 and insert— 'Sections 219 and 220.Sections 222 to 235A.Sections 240 to 246.'.

Amendment No. 12, in page 48, line 47 [Schedule 2], leave out from beginning to end of line 3 on page 49 and insert— 'Sections 226 to 234A.'.

John McDonnell

I realise that we have less than an hour left in this debate, so I shall try to be as brief as possible, as I know that Members want to reach amendment No. 1, which is the last on the selection list.

This group represents an attempt to place in British law the right to strike. New clause 11 looks at the right to strike, new clause 12 is on secondary action and picketing, new clause 13 is on balloting, new clause 17 reiterates new clause 11 on deduction from wages, and new clause 9 relates to issues about injunctions.

The basis of the discussion leads on from the Second Reading debate, to which many Members contributed. As Members are aware, the right to strike does not exist in British law. The only protections that strikers have are as a result of breaches of individual contracts of employment by industrial action, which is based on a legal immunity built up over time. That is in complete contradiction to the international agreements signed by successive Governments—the International Labour Organisation conventions, the Council of Europe social charter, and the international covenant on economic, social and cultural rights.

This is an attempt to address in some way the extension of the immunities allowed to people who take industrial action. It does not strike at the heart of the Government's failure to abide by international conventions, which would require the right to strike to be legislated for in this country. In most European countries, lawful strike does not break the contract of employment but merely suspends it, so it is unlawful to sack a worker on lawful strike, and the courts will prevent it. Were that the law here, there would be no need for the complex unfair dismissal rules to protect strikers that we have debated at length over the last 15 to 20 years. New clause 11 attempts to arrive at a clarification of the right to strike.

In the last debate in 1999, there was an attempt to extend immunities with the eight-week rule. The Friction Dynamics dispute demonstrated that that protection was inadequate. This Bill yet again applies further conditions to ameliorate the eight-week rule and enhance the protections, but in my view will also prove inadequate. In the Friction Dynamics case, it was demonstrated that many of the protections outlined in this Bill were already taken into account by the appeal tribunal. What we really need is an amendment to delete section 238A and provide that, when a worker is engaged in industrial action called by a trade union—lawfully, of course—pursuant to section 219, such industrial action shall not in any circumstances be held to constitute a breach of the contract of employment, but instead shall suspend the obligations under the contract of both the employee and the employer during the currency of the industrial action.

Since the industrial action breaches the contract of employment, the worker is not entitled to be paid for time while taking industrial action. That would obviously equally apply if the contract were suspended during the action. Nowadays, however, employers often deduct wages on an unfair daily basis when the sum deducted is more than the worker would have earned had she or he performed all her or his duties that day. The new clause provides for a worker taking industrial action not to be penalised by losing more than the sum that would have been earned had he or she not taken such action. That, indeed, is the purport of new clauses 11 and 17.

At present, the immunity allowed to a worker taking strike action protects that worker from specific torts in common law. One protection that it does not give is the ability to take action very specifically unrelated to the worker's direct employment. Industrial action is protected against that limited range of torts only if it is in contemplation of furtherance of a dispute that is wholly or mainly related to the terms and conditions of employment, or to other matters specified in the legislation such as job losses, disciplinary issues and trade union recognition or derecognition. If, according to a court, the union's predominant motive falls outside such statutory trade dispute issues, the immunity will be lost.

8.30 pm

New clause 12 would extend the immunities. Sections 219 and 244 of the 1992 Act would be deleted, and it would be provided that A trade union has the right, and it shall be lawful, to call for or to encourage workers to take industrial action as a means of resolving any dispute … to any workers' interests at work including … economic and social matters which affect the worker or the trade union or on which the trade union has a policy. In other words, when a trade union was pursuing a particular policy not specifically related to the company involved but more widely related to the economic and social conditions in an area, such action would be lawful.

Under current UK law, a trade dispute must be between employees and their own employer. If the relevant dispute is between another employer and his employees, it is unlawful for a union to call for sympathetic or so-called secondary action. My proposals support the ILO and the Council of Europe, which have condemned that blanket ban. The new clause would enable secondary action to take place, and workers taking such action would be protected from unfair dismissal.

The Government have written into British law a guaranteed ability to assemble peacefully, under the Human Rights Act 1998. New clause 12 would enable pickets to assemble peacefully to attempt to persuade people not to cross a picket line. The Bill does not deal with that problem. Section 222 of the 1992 Act should be amended to give workers the right to assemble peacefully under the Human Rights Act, and to picket any place of work.

New clause 13 deals with ballots. Even when industrial action falls within the narrow statutory definition of a trade dispute, a trade union will lose immunity if it fails to comply with the highly complex procedures requiring a fully postal strike ballot and so forth, which we have discussed in the context of a series of employment and trade union-related measures over the last six years. Pre-ballot and pre-strike notices in due form must be sent to the employer in a dispute, in accordance with the strict timetable set out. The employer will therefore be able to injunct the union if the procedures are not adhered to.

The Bill goes some way towards overcoming a number of problems of detail relating to balloting procedures, but it should be for workers and their unions to decide how best to ascertain collective views. Workplace ballots might be more suitable in some circumstances, but in emergencies a ballot might have to come after action had taken place. That is demonstrated by industrial action in my constituency at British Airways and elsewhere. My new clauses would place the onus on the certification officer to clarify and verify the procedures set out in the union's rules to ensure that they allowed for democratic participation by members in decisions on industrial action, but would not allow employers themselves to intervene to injunct individual unions or prevent action. It would be up to individual trade unionists to injunct or take up the issue with their unions.

A range of restrictions already exist to impede fair deliberation about industrial action. A further problem in current industrial action law is the use of interlocutory injunctions. That emergency procedure does not require the claimant to prove the alleged facts either beyond all reasonable doubt or on the balance of probabilities. It is sufficient for the employer to assert facts that, as long as they appear credible, will be accepted by the court, notwithstanding that the union has evidence to the contrary. The employer need not even demonstrate that its case is stronger than the union's; it is enough to show a serious issue to be tried. If credible facts are asserted and an arguable case under law is demonstrated, the court will more or less automatically grant an injunction if the balance of convenience favours it. In practice, the court will almost invariably grant the injunction to stop the industrial action, unless the union shows that the employer's legal argument is unsustainable, because the balance of convenience invariably tilts in the employer's favour.

The Council of Europe's economic and social rights committee has condemned that lack of balance between employer and trade union, as has the International Labour Organisation's committee of experts. The Bill does not deal with that matter, but new clause 9 would ensure that No injunction or interdict shall be granted to restrain exercise of the right to strike by a trade union or any workers unless there is a full trial.

Much has been said about the need for balance between employer and worker. These new clauses and amendments would endorse the legal right to strike, which the Government have accepted in one international treaty after another, and balance the legal strengths of employer and worker in the discussions and deliberations leading up to industrial action.

Mr. Djanogly

Injunctions have probably saved an enormous amount of time and cost for all parties concerned. New clause 9 would allow a strike to go ahead and its rights and wrongs to be considered later. That would be a recipe for mayhem, albeit legal mayhem, and would involve enormous costs—probably the bankrupting of unions—with very little being achieved.

I take it that, however long a strike lasted, workers' rights would be fully protected, presumably even if the company went into insolvency as a result. New clauses 12 and 13 would give a right to strike on the broadest possible terms. I think that they technically maintain the difference between official and unofficial action, but the concepts are merged to such an extent that there is little difference between them. Given that the ballot could be undertaken by the union with no one except its own members able to complain to the courts about the ballot process, I do not see how it would be meaningful at all.

Having briefly addressed the new clauses, I can safely say that I am not in favour of any of them.

Hywel Williams (Caernarfon) (PC)

I rise to speak briefly about the experience of my constituents involved in the Friction Dynamics strike, to which the hon. Member for Hayes and Harlington (John McDonnell) referred earlier. I shall not go into the details of the strike, but it pointed up the weaknesses of current legislation, especially the eight-week rule. At an earlier stage, I welcomed clause 21 as a partial answer, and the extension period in relation to lockouts is certainly welcome. However, I suspect that if clause 21 is passed, bad employers will continue in their intransigence up to and beyond a period of 16 weeks. If that had happened in the case in my constituency, I presume that my constituents would still be picketing today, three years after the start of their strike.

I tend to think that the abolition of the eight-week rule would encourage bad employers to come to the table, which is what good employers do anyway. No commercial undertaking wants to extend a strike unless it has a particular motivation for doing so, as we saw in the case of Friction Dynamics. As I said, where there is no lockout, the eight-week rule will still apply. Had Friction Dynamics' management played their cards rather more carefully, the strike would have continued and they would not have been found guilty by an industrial tribunal. So the situation would have been the same as before the various discussions that took place about the Friction Dynamics strike. Plaid Cymru's position remains the same: if a strike is lawful for eight weeks, we see no reason why the protection should not be applied during the ninth and further weeks, and we regard the Employment Relations Act 1999 as a compromise that needs to be looked at again.

Mr. Sutcliffe

I thank my hon. Friend the Member for Hayes and Harlington (John McDonnell) for the brevity with which he spoke to the new clauses and amendments, notwithstanding the seriousness of the issues that he raised. I am grateful to him for recognising that time is against us.

This is a large group of new clauses and amendments that would radically change the law on industrial action, and the law on the consequences to the individual of taking industrial action. As my hon. Friends have said, the amendments would rewrite the law on industrial action. At a stroke, they would delete virtually all of part 5 of the Trade Union and Labour Relations (Consolidation) Act 1992, substituting it with a few new sections that provide rights to trade unions and their members, but which systematically ignore the interests of employers and society at large.

I do not intend to address the detail of the new clauses and amendments as we have little time. Instead, I shall address the more fundamental question that my hon. Friend is really asking me to address: whether a total reworking of these provisions is required. This body of law was mainly constructed during the 1980s, but its basic principles have been in place for a great deal longer. We know that unions resisted these changes when they were introduced. Some resented the interference in their internal affairs and the resulting democratisation of their decision-making procedures; many resented the more limited immunities against legal action that were introduced. However, unions have generally learned to live with the provisions. Their members have benefited from the greater control over their unions' decisions that the law has required. Employers have benefited from knowing that they cannot be dragged into industrial disputes that have nothing to do with them; and, more generally, society has benefited from less widespread and less damaging industrial action.

The new clauses and amendments seek to take us back to the days of the 1960s and 1970s, when strikes significantly damaged our economy and the way in which we lived. They would reintroduce an entitlement to take secondary action, and would encourage wildcat strikes and other forms of damaging unofficial action. We want to frame the law in a way that deals with the realities of today's labour market, so it would be a profound mistake to turn the clock back. For these reasons, the Labour party made it plain in its 1997 manifesto that it would retain the key elements of the changes introduced in the 1980s. We will honour that commitment.

Some might argue that the current law is imbalanced and puts unions in an impossibly weak position vis-à-vis the employer; I do not believe that that is the case. If that were so, employers would never deal with unions or choose to settle their disputes with them voluntarily. The evidence suggests that the strike weapon remains a potent one if union members really support it. Only in a minority of cases is a successful vote in favour of industrial action actually followed by a strike or another form of industrial action. Employers prefer to resolve their differences voluntarily, rather than incurring the cost and disruption of industrial action.

My hon. Friend pointed to the International Labour Organisation's conventions and similar international instruments. It is fashionable in some quarters to interpret our international obligations in this area in the widest possible way. The truth is that the various treaties are drafted in very general terms and are capable of a wide range of interpretations. Those interpretations vary with each member state's industrial relations practices and traditions. Although it is true that some ILO advisory bodies have criticised our law on industrial action, we have always tried to answer those criticisms with reasoned arguments. We are convinced that we comply with our international obligations. The ILO gives due regard to our opinions, and understands that it is perfectly possible for different parties to interpret in good faith the implications of its conventions in different ways. As a result, the ILO's governing body has never formally reprimanded us for failing to comply with key conventions 87 and 98. Our standing with the ILO is as high as ever.

New clauses 11 and 17 and amendment No. 10 deal with the consequences for individuals of taking industrial action. New clause 10 and amendment No. 10 would delete the provisions in the Bill that strengthen the protection for employees taking lawfully organised, official industrial action. In their place, new clause 11 introduces an entirely new protective regime.

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The basic aim of the new clause is to ensure that the protection is indefinite. We have already debated that issue many times, during our consideration of the Bill and during the passage of the Employment Relations Act 1999. Indeed, the issue was looked at in detail during our review of that Act. Our position is that we need to put a time limit on the period during which it is automatically unfair to dismiss someone taking industrial action. In industrial action law, we need to balance the legitimate interests of the employer and those of union members. That might not immediately appeal to my hon. Friend, but the Government want to create a fair regime for all interested parties and not just for one. Eight weeks is, in our judgment, a fair period. It covers the overwhelming majority of stoppages, 98 per cent. of which are dealt with within that period.

The case of Friction Dynamics was mentioned by the hon. Member for Caernarfon (Hywel Williams), who supported us in Committee by recognising that we were tidying up the position on lock-out days and by accepting that we were asking both sides to take reasonable steps to resolve the dispute. We wanted to toughen up the position so that a Friction Dynamics situation could not happen again: both sides would have to prove that they tried reasonably to resolve the dispute. The action that took place has been condemned on both sides of the House.

The Bill will strengthen the protections introduced in the 1999 Act in a targeted way that will resolve problems that have arisen in practice. The provisions may not meet everyone's aspirations in the union movement, but I believe that they are generally seen as an advance.

New clause 17 places limits on the deductions from pay that employers may make when their employees take industrial action. That issue arose in the tertiary education sector, where the unions believe that employers made excessively large deductions. I think I am right in saying that the issue has not affected many other sectors, so it is not a matter that was highlighted in the representations that we received in preparing the Bill or during the review of the Employment Relations Act. I am not yet convinced that the issues need to be specifically addressed in industrial action law. Of course, there are already entitlements for workers to complain to employment tribunals about unauthorised deductions from pay. I hope that those existing protections would help the workers concerned in those cases, although I recognise that the breach of contract that occurs when workers take industrial action might complicate the position.

The new clause contains a simple rule of thumb for deductions, but I am not sure that it provides the right answer. For example, there may be a legitimate case for employers to make some proportionate reduction to holiday pay or to make some adjustment to the calculation of an employee's length of service for pension purposes.

In conclusion, I am not yet convinced that there is a problem that needs to be dealt with—or, if there is, that new clause 17 provides the right solution. However, I would be happy to meet my hon. Friend if he believes that it is a sufficiently serious issue.

For reasons that I have explained, I do not wish to speak to the amendments in any further detail. Unfortunately, I find myself in agreement with many of the comments made by the hon. Member for Huntingdon (Mr. Djanogly), which is an unusual occurrence in this place. I ask my hon. Friend to withdraw his new clause.

John McDonnell

With such a resounding welcome for the new clauses, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.