LTB180/16 Trade Union Bill - Government Attacks Safety Reps

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LTB180/16 Trade Union Bill - Government Attacks Safety Reps

No. 180/2016

21 March 2016

Our Ref: C1/16

Trade Union Bill - Government Attacks Safety Reps

To: All Branches

Dear Colleagues,

This is an update for CWU Safety Reps and Regional Safety Forums on the Tory government's Trade Union Bill specifically as it relates to Trade Union Safety Representatives. Previous LTBs are LTB 524/15 and LTB 77/16.

The General Secretary is leading the CWU Campaign against the Trade Union Bill and in conjunction with the TUC's opposition campaign.

Last Wednesday night the government was defeated in three votes on the Trade Union Bill in the House of Lords. The votes concerned substantial amendments to the TU Bill on:-

Electronic Balloting,
Facility Time - including Health and Safety Reps paid time off, and
Funds used by Unions for Political Campaigning.
In each vote, the government was defeated 320 - 181, 320 - 172 and 248 - 160 - nearly 2 to 1, with several Conservative peers voting against it or abstaining. This followed a previous government defeat on the Bill in the House of Lords in January.

An amendment to remove the clause on 'Facility Time' in the public sector (including Health and Safety Representatives) was overwhelmingly agreed. However the government may try to restore it in the House of Commons when the Amended Bill returns there at a later stage and so the campaign continues in support of trade union representatives and Health and Safety Representatives.

Lord Bill McKenzie the former Labour Government Health and Safety Minister has done a great job on opposing the government at every opportunity on health and safety and strongly arguing the case in support of Trade Union Health and Safety Representatives.

The defeats inflicted on the government are an important result for Trade Union members across the UK and bad results for the government. These defeats should be the nails in the coffin of the whole Trade Union Bill. The government has tried to force this Bill through Parliament, ignoring objections from all sides of the House. Once again, peers have rightly held them back. The TUC is calling on the government to think again and withdraw this damaging and divisive bill.

In his speech to the House of Lords, Labour's Lord Bill McKenzie of Luton said: "I will concentrate my brief remarks on the provisions in the Bill that relate to Safety Reps. I reiterate points raised in Committee about the importance of Trade Union Safety Reps and the positive impact that they have on the safety culture of their employers. There is an abundance of evidence about the importance of effective health and safety systems and that these systems work best when trade unions and employers work together. That is why the Health and Safety at Work Act gave legal backing to Union Safety Reps and why, rather than seeking to undermine or weaken the system, the government should be concerned with its promotion and enhancement.

I would argue that the Government is in error in including Health and Safety Reps’ time as facility time. Facility time is time off from an individual’s job granted by the employer to enable a representative to carry out their trade union role. We have heard why this should not be constrained in the manner proposed in the Bill. A Safety Rep, however, although appointed by a Trade Union, does not fulfil a trade union role as such. It is a specific legal position with defined functions, and the regulations state that in this capacity it must represent all workers in a workplace, not just Union members.

This comes about not only from the Health and Safety at Work etc. Act, but by Article 11 of the 1989 EU framework directive which deals with consultation and participation of workers. The directive specifically states: “Employers must allow workers’ representatives with specific responsibility for the safety and health of workers adequate time off work, without loss of pay, and provide them with the necessary means to enable such representatives to exercise their rights and functions deriving from this Directive”.

There is no limit on this, but it would have to be reasonable. The UK regulations use the phrase “as shall be necessary”, which will obviously vary from workplace to workplace and from time to time. The exercise of reserve powers under Clause 13, which are triggered by consideration of the information requirements of Clause 12, would be entirely inconsistent with the directive, which focuses on the need for adequate time off to exercise rights and functions. The latter must have regard to the circumstances of individual workplaces, which, as I say, can vary from location to location and from time to time.

Moreover, the legal requirement under the directive is for the employer to comply in allowing time off. This is as it should be, because it is generally the employer who creates the risks which have to be managed. It is not for the government to second-guess in respect of either public sector workplaces in aggregate or individual workplaces in particular. Can the government spell out for us the circumstances in which they envisage using these reserve powers to limit the time off that safety representatives have otherwise agreed between their trade union and their employer? What evidence do they have that there is an abuse of the system as the law stands? The Minister in the other place, Nick Boles, is on record as acknowledging that: “An employer must allow them”— safety reps— “as much paid time off work as is necessary or reasonable to perform their statutory functions, and we absolutely do not propose to change that rule”. So in that case, why does government propose that they should now be potentially subject to reserve powers in Clause 13 to restrict or cap paid time off and why will the government not remove those powers?

There is one other point. The Bill applies only to trade union representatives. The Minister will be aware that there are two sets of regulations covering workplace representatives: the 1977 regulations, which apply only to trade union reps, and the 1996 regulations, which apply to representatives for workplace safety in non-unionised workplaces. If the Bill is passed in its current form, the government will be able to restrict time off given to trade union representatives in the public sector but not to non-trade union ones. Is this the intention and why do the government seek to discriminate against trade union safety reps in this manner? Can the Minister tell us how this measure is consistent with the fairness obligation that was set out at the start of our proceedings?

Replying to the debate Tory Minister Lord Bridges of Headley (Parliamentary Secretary - Cabinet Office) said: A valid concern was raised about the effect of a very restrictive cap, were one to be placed on facility time spending, and what that might do as regards health and safety obligations. I cannot envisage any circumstances under which this government would introduce such a restrictive cap that important statutory obligations could not be met. We would certainly take account of what was necessary to ensure such union duties could be properly performed. After all, to do otherwise would leave the government exposed to challenge by judicial review. For that reason, we do not expect there to be any conflict with employers being able to meet their statutory duties, but we are not going to dictate to them the minutiae of how they may do that. As a final reassurance, if required, the Bill contains the power to make exceptions to the cap if required to meet statutory obligations. Union duties such as health and safety will remain a statutory obligation. However, at the end of the day, if unjustifiably high patterns of spend were found to persist, the government wants to save and better spend taxpayers’ money and the government needs the power to act in a reasonable and accountable way and the new proposed 'reserve powers' could then be triggered to imposed a 'cap' at a level we believe is reasonable to ensure reasonable spending of public funds.

Further updates will be published in due course.

Yours sincerely



Dave Joyce
National Health, Safety & Environment Officer

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Government got defeated on the disability bill in the lords but still passed it back and was voted in by the lords paper tiger or what.