By George Guillam
Following over 200 amendments proposed by the government, the Employment Rights Bill is now making its way through the Lords, and, if the custom of manifesto commitments receiving little challenge is upheld, should soon receive Royal Assent. If passed in its current format it does a lot of good things, and the gestation period for the bill has allowed for some flaws to be ironed out- such as including agency workers in the ban on zero hour contracts. On the other hand, this is far from the union victory proclaimed in the press and the changing shape of the bill shows the limits of trade union influence in Labour.
While the Government’s decision to abort its reform of repudiation and prior call is concerning (in no small part a product of trade unions failing to present a united front on these issues), the most pertinent example of the limits of trade union power are the last-minute retreats concerning the 2016 Trade Union Act. The 2016 Act and the 2023 minimum service levels act were the only two parts of anti-union legislation that Labour had firmly committed to repealing. The rest was covered by a promise to ‘update’. However, the latest set of amendments indicate a government that is wobbling in its commitments.
Prior to the 2016 Act a trade union was required to provide an employer with 7 days’ notice that industrial action was due to take place, the 2016 Act made it 14. The assumption was that repealing the act would mean it would go back to 7 days, as stated in the post Bill Committee version of the act. However, Labour have only reduced it to ten. For a lot of tense industrial conflicts every day counts and ten days’ notice is far too much as, in many cases, it will provide too much time for employers to prepare for industrial action and push through the workplace developments that have provoked the action in the first place.
Alongside this, Labour has postponed the removal of the 50% turnout threshold on industrial action ballots until electronic balloting can be implemented, which will depend on the outcome of a ‘working group’. Although a minority of unions will privately welcome this step, craving for their action to be seen as legitimate and concerned about the prospect of committing to industrial action with limited member support, this is a significant step backwards. The unions who supported this should be treated as COHSE was for registering under the 1971 Industrial Relations Act.
Electronic balloting is something that has been dangled in front of trade unions ever since the 2004 Employment Relations Act made provision for the Secretary of State to declare it a permissible means of voting. In the intervening years, Godot has been and gone again but electronic balloting has failed to materialise; this does not augur well. In the meantime, trade unions and the workers they represent will have to lump it under the current legislative framework. The longer this is in place the more employees will lose out.
Though it may be tempting to ascribe these developments to Labour succumbing to lobbying from employers, the truth is more complicated: some Labour MPs, including multiple cabinet ministers, were not in favour of removing the 14 day notice period for industrial action. After all, the government is also an employer that in the recent past has experienced significant industrial action, and that this legislation is being passed in the immediate context of more modest public sector pay increases. From this point of view, it is understandable why ministers may not want to be charged with enabling a strike that would have previously been illegal under the 2016 turnout thresholds and would like more time to prepare if there were to be industrial action in key public sector areas. Thus, bad employers have been let off the hook by electoral interests.
The concern is that these early retrenchments show the stark reality for the trade union movement. A Conservative Government assumes power and passes what was previously thought of as draconian measures. This quickly becomes normalised, and a Labour Government only feels able to partially reverse the legislative tide. With this in mind, the outcome of Labour’s promised consultation on reducing union tort liabilities to their 1992 levels (they were raised to existential levels in 2022) will be informative.
There is a clear and present danger that the longer Labour is in power the further it will be constrained by the logic of state administration. The tension between being a party of organised labour and running a government is of course nothing new for a Labour government. When Secretary of State for Energy Tony Benn was willing to use the SAS to strike break in a dispute at Sellafield in 1977, Barbara Castle and Harold Wilson attempted to pass in Place of Strife in 1969, and Nye Bevan, when Minister of Labour, advocated that it should be illegal for key public sector workers to strike. Indeed, despite Labour erecting a New Jerusalem in 1945 it was not until 1951 that order 1305 (which prohibited strikes, in theory if not in practice) was repealed.
This contradiction, present in every Labour government, should not be mistaken for antipathy towards organised Labour. This government obviously thinks trade unions and collective bargaining are a good thing, otherwise it would not make it easier for them to achieve recognition, whether through an easier statutory route or incentives for employers to grant voluntary recognition, expand protections for trade union reps, and implement collective bargaining in Social Care. Even the Bill’s fundamental purpose, to make labour a more stable commodity, makes it easier for labour to organise- though, in the absence of progress on a single category of employment, this stability may quickly be undermined.
What is missing to complement these good intentions is a fundamental understanding that, in most cases, trade unions currently exist in a state of nature due to unscrupulous employers pulling the rest of their competitors with them, as is the nature of commercial competition (e.g. Royal Mail’s struggles). Without stronger rights concerning industrial action, the aspiration of a good employer and a trade union having constructive and robust conversations will remain a distant dream for most. Labour’s approach to union legislation is akin to the one that levied sanctions on Russia but did not provide the required arms to Ukraine.
The most obvious way to mitigate against the obligations of state administration from obstructing the forward march of labour is for trade unions to get more actual trade unionists elected as MPs, such as those who sat on the Bill Committee and sit on the Business and Trade Committee, rather than many of the PLP’s trade union sponsored MPs that have little direct union experience and mistake trade unions for a piggy bank and a supportive bloc vote.
However, this approach, even if successful, would take years and the immediate circumstances are what they are. As has been the case since Labour first gained power, trade unions have nowhere else to go. Until the next election provides an opportunity for change in the PLP and another manifesto, the Employment Rights Bill is likely to be as good as it gets for the foreseeable future.