Trade Union Act looms large…

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

To Mediate or Not to Mediate, That is the Question…

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.  Despite that, I have found many employers quite slow to adopt mediation as an approach, and often reluctant to put it in place early enough to prevent some situations becoming intractable. In some cases, it seems to be an option of last resort rather than a means to head problems off at the pass.

Part of this seems to come from a lack of understanding of what mediation is and does, part of it from seeing it as an additional expense.  In many cases, those that have tried have done so using internal mediators – while that may work in some situations, staff tend to perceive a mediator employed by their company as having a conflict of interests that means they can’t be impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results have perhaps not been what might have been hoped.  But the relative costs of employing an external mediator will often pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

Interestingly, ACAS research published in 2012 showed that mediation is significantly more successful in workplaces where the employer is genuinely committed to the process, less so where they are reluctant to use it – so the results are, to a large extent, self-fulfilling prophecies.  The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

One conclusion from the ACAS research was that one poor result can colour an employer’s view of the value of mediation as a whole.  To a large extent, one of the benefits of mediation is that there is little to be lost in trying it, but please do so with a genuine commitment to find mutually acceptable solutions or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

Here Comes the Trade Union Act 2016 (but is time running out for the union movement?)

DSCN0519So, the Trade Union Act slunk onto the Statute Book on 5th May. We now know what it says, but do we know what it means?

The short answer is “sort of”, but it’s very close to “not really”…

What we do know is that among other things:

  • any industrial action needs to follow a ballot with a minimum 50% turnout
  • ballot papers must make clear the dispute and the action proposed
  • 14 days notice of specific action must be given to employers
  • in “important public services” ballots must also be supported by at least 40% of eligible voters

We don’t actually know as yet when the provisions will come into force, but there are several other uncertainties at this stage as well.  For example, it has yet to be defined which public services are deemed “important”, though we can probably predict that it will include Health and Education.  Furthermore, as with all laws, the final impact will be shaped by cases that go through the courts so, with questions remaining on the impact of this legislation on workers’ human rights, there may be uncertainty for some time.

What is clear is that the impact in the devolved administrations will, for the foreseeable future, be minimal as the Governments in Scotland, Northern Ireland and Wales have all said that they won’t be implementing the provisions of the Act. So what can we expect to see in England?

Well, the intention behind the Act is clearly stated as making it more difficult for trade unions to take legal industrial action, particularly in what are being called “important public services”. This seems to have been a response to disputes in recent years where some unions have proceeded to industrial action with significantly lower turnout than is now being demanded.  A collective breath of relief will have been taken amongst all unions that the threat to allow employers to hire agency staff to complete strikers’ work was dropped from the final legislation.

The Government has recently taken a bloody nose in relation to it’s plan to do away with “check-off”, the mechanism by which union subscriptions are paid direct from people’s salaries, in spite of that system having little or no cost for employers.  Having now established through the courts that DWP’s implementation of that approach was unlawful, the Government now risks claims for compensation from the unions that have been affected.

The unions had responded through consultation on the Trade Union Bill that it was unreasonable to dictate the levels of turnout while the Government insisted that they continue to conduct ballots by paper and post.  In that context, it’s interesting to note the concession that there will now be an independent review of electronic balloting.  In spite of that, it is also worth highlighting that there have been many troublesome disputes, notably the ongoing one with Junior Doctors in England, where the turnout has significantly exceeded those imposed by the new strictures.

Given that, it remains the best approach for employers, especially those who are not bound by Government instruction, to work with their staff, including the unions where they are present, to make sure they avoid the dispute in the first place.

Accredited Mediator

While my previous career involved mediating between various parties on a regular basis, I’d never had my skills in this respect properly reflected through accreditation, so I decided it was time to address that. Thanks to training provided by The Mediation Partnership, I am now accredited mediator.

The training was both interesting and challenging, featuring a number of role play scenarios that were outside of my previous experience and allowed a wide-ranging exploration of approaches and techniques to develop my skills.

The course is accredited by the Scottish Mediation Register.

 

A Port in a storm…

Forth Rail Bridge from Hawes Pier (small)

So, almost unnoticed behind the stramash of George Osborne’s eighth budget, the Government has been defeated again in the House of Lords over it’s Trade Union Bill.  As before, the headlines are all about the impact on Labour Party funding.  As before, the implications for trade unions and workers’ rights to organise themselves and, in particular, campaign about members’ issues have been largely skimmed over, as has the fact that several unions aren’t even affiliated to the Labour Party in the first place.  There’s more to come on this as there is another day of Review (the line by line consideration of the Bill) in the House of Lords, then the third and final Reading.  All of that against a backdrop of several high profile strikes, most of which look, from the outside, like they could have been avoided.

Neither the BMA nor Junior Doctors in England are renowned as militant types, but they see a compromise to healthcare delivery in the revised contracts they are being offered. Jeremy Hunt’s responses have done little to allay insinuations that the changes are as much politically motivated as financially, but then neither side is indicating much room for manoeuvre so it doesn’t look like there’s going to be a simple end to the situation.  Imposition of the new contracts may solve the short term problem for the Government, but it’s hardly going to encourage newly qualified doctors (or anyone else) to view NHS England as an employer of choice.

Meanwhile, Grangemouth is in the news again, this time with a dispute between Forth Ports and dock workers.  In recent years, Grangemouth has become associated with industrial unrest and high pressure tactics on all sides, largely due to the strikes called against Ineos at the Oil Refinery there in 2008 and 2013 and, while this is a different set of workers and a different employer, the rhetoric from both sides seems woefully familiar.

Having only read about these disputes, and having not been directly involved, it’s always difficult to see the full picture, but the common theme seems to be one side claiming they’ve not been consulted, the other side saying they have and that there aren’t any options but the one being presented.  It’s not always simple to understand the subtle differences between informing people, consulting them or negotiating change with them, but it’s nigh on impossible if sides don’t speak to each other.

As with most disagreements, there is unlikely to be complete truth in either position, but it does seem that the parties involved subscribe to different dictionaries and are therefore working to different definitions of many of the terms they are using. That’s not an uncommon situation but is one that, if not addressed, will damage all parties’ reputations and can only be resolved in the long term by both sides being willing to hang up their boxing gloves and start their relationship again. Working out how things got so bad isn’t easy, but is possible – and would be in the long term interests of any business that wants to develop a genuinely healthy relationship with their staff.  After all, a happy staff is a productive staff within which everyone becomes an advocate for their employer.

There’s a truism that any employer will end up with the unions that they deserve, and that unions will end up with the Management they deserve.  That’s always worth bearing in mind as, when the disputes are over, everyone will still have to work together – and surely it’s better to work somewhere that you can have a polite discussion than one where every minor disagreement becomes a major dispute?