HR talking point: Industrial unrest - why more restrictive union laws are not the answer

Author: Darren Newman

Consultant editor Darren Newman argues that more restrictive trade union laws, such as the lifting of the ban on using agency workers during industrial action and an increase in damages that can be awarded against unions for unlawful industrial action, are not the solution to tackling the current wave of industrial unrest.

Lifting of ban on use of agency workers

Industrial action in key public services looks set to increase over the coming months as pay deals fail to keep pace with inflation.

In response, the Government has changed the law to allow agencies to provide agency workers to employers to replace employees who are on strike.

Previously, it was prohibited for employment agencies to supply workers to replace striking employees. That prohibition was repealed on 21 July 2022.

Legal challenge from Unison: first ground

Unison has already made it clear that it will mount a legal challenge to the repeal. The challenge appears to be on two main grounds.

The first ground is that allowing strikers to be replaced by agency workers is a breach of international labour standards and contrary to art.11 of the European Convention on Human Rights (which covers freedom of association and the right of workers to join trade unions "for the protection of their interests").

That seems something of a long shot to me.

Allowing employers to hire employees to replace strikers has been criticised as an interference in the right to strike by the International Labour Organisation (ILO) Committee of Experts. However, it is not clear that the criticism extends to temporary, as opposed to permanent, replacements.

I am not aware of any clear ruling by either the ILO or European Court of Human Rights that would prevent the Government from repealing the agency workers prohibition.

Legal challenge from Unison: second ground

Unison's second (and stronger) argument is more prosaic.

The Regulations repealing the agency workers prohibition were made under the Employment Agencies Act 1973. That Act requires the Secretary of State to consult with "such bodies as appear to him to be representative of the interests concerned" before making any Regulations.

As it happens, the Government has conducted a full public consultation on this issue - it is just that it did so quite a while ago. The promise to repeal the agency workers prohibition was first made in the Conservative party manifesto of 2015, which said that a Conservative Government would "repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes".

A consultation exercise was duly launched in July 2015 and closed in September of that year. No Government response was ever published and the consultation outcome currently states: "This consultation was part of a wider trade union reform package. A decision was taken not to progress this particular aspect of the package."

It would seem to be a bit of a stretch for the Government to rely on this consultation, which closed seven years ago and resulted in it deciding not to proceed with any legal changes, as the basis for repealing the agency workers prohibition now.

Perhaps some other consultation took place in private that the Government hopes will satisfy the requirements of the 1973 Act - but it is clear that this issue is heading for the courts.

Government's token gesture

Even if the measure is upheld by the courts, it is hard to see what difference it will make.

For example, there is no bank of qualified train drivers or safety-critical platform staff available to be supplied by an employment agency whenever strikes occur. Even if there was, it is not clear that they would be willing to cross picket lines and the major agencies would probably prefer to keep well clear of industrial disputes.

In truth, this is a token gesture that - even if legal - will have little practical impact on the high-profile strikes that we are likely to see over the coming months.

The Government has pushed through the change because it is one of the few things that it can do about industrial action without having to pass an Act of Parliament. It has resurrected an idea that it rejected years ago because it cannot think of much else to do.

Higher damages for unlawful industrial action

Similar thinking is apparent behind another token change to the law - the increase in the cap on damages that can be awarded against trade unions for calling unlawful industrial action.

The Trade Union and Labour Relations (Consolidation) Act 1992 provides a sliding scale of the damages that can be awarded against a trade union, based on the number of members in that union.

Previously, a union with under 5,000 members could be ordered to pay no more than £10,000 and a union with 100,000 members no more than £250,000. From 21 July 2022, those caps have been increased fourfold. A smaller union can now be made to pay up to £40,000 while a larger union can now be made to pay up to £1 million.

Whatever the merits of this change may be, the practical effect should be pretty negligible.

Damages can be awarded only if the union organises unlawful industrial action and modern trade unions are adept at jumping through the various legal hoops that the 1992 Act sets out for them.

In any event, the incentive for the union to get it right is not the compensation that they may otherwise be ordered to pay but the fact that, if the action is not lawful, the employer will be able to obtain an injunction to prevent it.

The prospect of being sued for damages is not really something that enters into the equation when a union is contemplating industrial action.

Negotiation not legislation

The fact is that there is not a legislative solution to the problem of industrial unrest.

Ministers should learn the lessons of the Trade Union Act 2016. That Act introduced minimum turnout requirements in industrial action ballots and required that in important public services - like rail transport - at least 40% of those entitled to vote had to support action for it to be lawful.

The result was that trade unions became more selective about whom they balloted for industrial action and concentrated their efforts on securing a huge turnout. The strikes we are seeing over the summer have the support of the overwhelming majority of the union members who were balloted and that clearly strengthens their hand in negotiation.

The Government is not going to succeed in preventing industrial action by tinkering further with trade union laws that are already restrictive. It would do better to direct its efforts at the underlying causes of the disputes that we are seeing.

Negotiation will achieve more than legislation.