Employment Bill a chance to put some fairness back into the workplace, says RMT

RMT press release, issued today

MPS HAVE a chance to bring back some fairness into industrial relations when they debate the Employment Bill tomorrow, Britain’s specialist transport union said today.

RMT today urged MPs to back amendments to the bill that would simplify rules on balloting for industrial action, stop employers victimising strikers or using agency labour to break lawful strikes and allow unions to expel fascists from their ranks (details below).

The amendments, tabled variously by John McDonnell and Tony Lloyd, would help redress the massive legal disadvantages faced by unions in trying to defend and improve their members’ jobs, pay, pensions and conditions.

The union is also urging MPs to back an amendment tabled by Dover MP Gwyn Prosser that would stop shipowners paying poverty wages to foreign nationals working on ships plying between UK ports or in the UK offshore sector.

“The economic crisis wasn’t caused by working men and women, but they still face massive legal constraints designed to stop them taking effective action to protect themselves, their livelihoods and their families, RMT general secretary Bob Crow said today.

“Successive governments have said they don’t like regulation, but while the bankers and bosses have been deregulated to the point that they could bring our economy to its knees, the unions still have their arms tied behind their backs with red tape.

“Raft after raft of anti-union laws brought in by Thatcher are still in force, and unions have to jump through hoops to take any form of industrial action at all.

“The balloting rules unions have to follow are designed to trip them up and to give employers any excuse to use the courts to stop industrial action taking place.

“It is grossly unfair that workers who take lawful industrial action should face victimisation or even the sack, or see their boss bring in agency labour to break their strike.

“And it is outrageous that unions are so tightly controlled that they don’t even have the right to expel people who stand for everything the trade union movement is opposed to.

“Now more that ever we need to see some fairness brought back into the workplace, and these amendments would help

ends

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Notes to editors: The amendments to the Employment Bill are reproduced below.

Amendment NC1 would give protection from dismissal or victimisation for those participating in lawful industrial action or a lawful strike; NC2 would give employers the duty to co-operate with a union conducting a ballot and to supply the relevant information they need in order to comply with notice and balloting requirements; NC3 would tighten the law to prevent the use of agency workers to replace striking workers, and NC6 would remove statutory rules on union membership to treat unions in the same way as other voluntary organisations.

NC1

Protection of those participating in lawful industrial action or a lawful strike

Mr John McDonnell Andrew Dismore Kelvin Hopkins Mr Dennis Skinner Michael Connarty Ian Stewart

Diane Abbott, Dave Anderson, Colin Burgon, Ronnie Campbell, Harry Cohen, Frank Cook, Katy Clark, Jeremy Corbyn, Jim Cousins, Jon Cruddas, Ann Cryer, John Cummings, David Drew, Mark Durkan, Neil Gerrard, Ian Gibson, Kate Hoey, Eric Illsley, Chris McCafferty, Austin Mitchell, Gordon Prentice, Linda Riordan, Alan Simpson, Marsha Singh, David Taylor, Desmond Turner, Bob Wareing,

To move the following Clause: -

(1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (in this Act, “the 1992 Act”) is amended as follows.

(2) For section 238A (participation in official industrial action) substitute—

“238A Effect of industrial action on employment contract

(1) Any termination of a contract of employment by an employer shall be unlawful and of no effect if the reason or one of the reasons was or is that the worker has participated, is participating or proposes to participate in lawful industrial action or a lawful strike; and in any proceedings, the termination shall be presumed to be by reason of that participation or proposed participation unless the employer proves the contrary.

(2) Where in any proceedings a court finds a termination unlawful as a result of subsection (1), it may (in addition to making any other order)—

(a) make a declaration as to the continuation of the contract of employment;

(b) award damages in respect of any loss suffered by the worker by reason of the termination.

(3) Where a worker’s act or failure to act is a consequence of the worker’s participation, or proposed participation, in lawful industrial action or a lawful strike, that act or failure to act is not actionable on any of the following grounds—

(a) that it amounts to a breach of that worker’s contract of employment, or to non-performance or partial performance of one or more terms of that worker’s contract of employment;

(b) that it amounts to the breach, non-performance or partial performance of any duty or obligation owed by the worker to any person, or

(c) that it is directly or indirectly causative of the breach, non-performance or partial performance of any duty or obligation owed by another person.

(4) For the purposes of this section, section 238AA and section 238AB, an employee participates in lawful industrial action or a lawful strike if he commits an act, or a series of acts, which he is induced to commit by an act which by virtue of section 219 is not actionable in tort.

(5) In this section—

(a) “court” includes an employment tribunal, and

(b) “termination” includes a purported termination.

238AA Unfair dismissal and the right not to suffer detriment

(1) An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 (c. 18) (unfair dismissal) as unfairly dismissed if the reason or one of the reasons for the dismissal is that the employee has participated, is participating or proposes to participate in lawful industrial action or a lawful strike.

(2) A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer, where the reason (or one of the reasons) for the act or failure is that the worker has participated, is participating or proposes to participate in lawful industrial action or a lawful strike.

(3) Subsection (2) does not apply where the worker is an employee and the detriment in question amounts to dismissal.

(4) Nothing in this section prevents an employer, in relation to a worker who participates in lawful industrial action or a lawful strike, from—

(a) withholding remuneration or benefits from the worker, so long

as—

(i) the amount withheld does not exceed that to which the worker would have been entitled had he not participated in industrial action or a strike,

(ii) the withholding of the remuneration or benefits in question is permitted by the worker’s contract of employment, and

(iii) it is reasonable in all the circumstances to withhold the remuneration or benefits in question;

(b) enforcing, to such extent as is reasonable in the circumstances, any restriction imposed by the worker’s contract of employment concerning trade secrets or other confidential information.

238AB Complaints to employment tribunals etc

(1) A worker or former worker may present a complaint to an employment tribunal that he has been subjected to a detriment by his employer in contravention of section 238AA(2).

(2) An employment tribunal shall not consider a complaint under subsection (1) unless it is presented—

(a) before the end of the period of three months, beginning with the date of the act or failure to act (or the last in a series of similar acts or failures) to which the complaint relates, or

(b) within such further period as the employment tribunal considers just and equitable in all the circumstances.

(3) In proceedings on a complaint under section 238AA(2), it is for the employer to show the reason for the act or failure to which the complaint relates; and the act or omission shall be presumed to be by reason that the worker had participated, was participating or proposed to participate in lawful industrial action or a lawful strike unless the employer proves the contrary.

(4) Where an employment tribunal finds that a complaint presented to it under subsection (1) is well founded, it shall take such of the following steps as it considers just and equitable—

(a) make a declaration as to the rights of the complainant in relation to the matters to which the complaint relates;

(b) order the employer to pay such compensation to the complainant as it considers just and equitable having regard to all the circumstances, including the detriment to which the worker was subjected and any loss suffered by the worker in consequence of the act or omission to which the complaint relates; and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not awarded under any other head.

(5) In proceedings on a complaint of unfair dismissal under section 238AA(1), the dismissal shall be presumed to be by reason that the worker had participated, was participating or proposed to participate in lawful industrial action or a lawful strike, unless the employer proves the contrary.”

(3) In section 239 (supplementary provisions relating to unfair dismissal) subsection (4) ceases to have effect.

(4) The Employment Rights Act 1996 (in this Act, “the 1996 Act”) is amended as follows.

(5) After section 113 (reinstatement and re-engagement orders) insert the following section—

“113A Automatic reinstatement

Where an employment tribunal finds that an employee has been unfairly dismissed in circumstances to which section 238AA(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 applies, and the complainant wishes to be reinstated, the tribunal shall make—

(a) an order for reinstatement, or

(b) an order for re-engagement on such terms as the parties may agree or as the tribunal (having regard to any advice received from ACAS) shall order.”

(6) In section 117 (enforcement of order and compensation) after subsection (2) insert the following subsection—

“(2A) In relation to an order made pursuant to section 113A, the amount of compensation shall be such as the tribunal thinks just and equitable in all the circumstances having regard, in particular, to the nature of the infringement of the employee’s right to be reinstated or re-engaged in pursuance of the order, and to any loss suffered by the employee in consequence of the non-compliance; and for the avoidance of doubt, compensation may be awarded in respect of injury to feelings whether or not it is awarded under any other head.”

(7) In section 117 after subsection (8) insert the following subsection—

“(9) Any order for reinstatement or re-engagement made pursuant to section 113A may be enforced as if it were an order made by the High Court.”

(8) In section 124 (limit of compensatory award etc)—

(a) after “section 117(1) and (2)” insert “or (2A)”;

(b) for “section 115(2)(d)” substitute “section 115(2)(d), section 117(2A)”.

(9) In section 128(1)(b) (interim relief pending determination of complaint) after “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section 238AA(1) of that Act”.

(10) In section 129(1) (procedure on hearing of application and making of order) after “Trade Union and Labour Relations (Consolidation) Act 1992” insert “or section 238AA(1) of that Act”.

NC2

Employer’s duties in relation to industrial action ballots

Mr John McDonnell Andrew Dismore Kelvin Hopkins Mr Dennis Skinner Michael Connarty Ian Stewart

Diane Abbott, Dave Anderson, Colin Burgon, Ronnie Campbell, Harry Cohen, Frank Cook, Katy Clark, Jeremy Corbyn, Jim Cousins, Jon Cruddas, Ann Cryer, John Cummings, David Drew, Mark Durkan, Neil Gerrard, Ian Gibson, Kate Hoey, Eric Illsley, Chris McCafferty, Austin Mitchell, Gordon Prentice, Linda Riordan, Alan Simpson, Marsha Singh, David Taylor, Desmond Turner, Bob Wareing

To move the following Clause: -

The following section is inserted after section 226C of the Trade Union and Labour Relations (Consolidation) Act 1992 —

“226D Employer’s duties in relation to industrial action ballots

(1) It is the duty of an employer reasonably to co-operate generally, in connection with a ballot conducted or proposed for the purposes of section 226, with the trade union (or unions) and the person appointed to conduct the ballot.

(2) Without prejudice to the generality of subsection (1), it is the duty of an employer to supply to a trade union in good time information reasonably requested by the trade union for the purposes of establishing the names, addresses, categories and workplaces of those members whom it wishes to ballot for the purposes of section 226.”

NC3

Agency labour replacing those taking lawful industrial action

Mr John McDonnell Andrew Dismore Kelvin Hopkins Mr Dennis Skinner Michael Connarty Ian Stewart

Diane Abbott, Dave Anderson, Colin Burgon, Ronnie Campbell, Harry Cohen, Frank Cook, Katy Clark, Jeremy Corbyn, Jim Cousins, Jon Cruddas, Ann Cryer, John Cummings, David Drew, Mark Durkan, Neil Gerrard, Ian Gibson, Kate Hoey, Eric Illsley, Chris McCafferty, Austin Mitchell, Gordon Prentice, Linda Riordan, Alan Simpson, Marsha Singh, David Taylor, Desmond Turner, Bob Wareing

To move the following Clause: -

In the Conduct of Employment Agencies and Employment Businesses

Regulations 2003 (S.I. 2003/3319), after regulation 7 (restriction on providing work-seekers in industrial disputes) insert the following regulation—

“Restriction on hirers in industrial disputes

7A (1) A person shall not hire a work-seeker to perform—

(a) the duties normally performed by a worker who is taking part, or intends to or is about to take part, in a lawful strike or other lawful industrial action, and in respect of whom notice of a strike or other industrial action has been given by a trade union (“the first worker”), or

(b) the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform duties normally performed by the first worker (whether or not the employer is contractually entitled to require the other worker to perform those duties).

(2) Where a person seeks to become the hirer of a work-seeker wholly or partly by reason of (or of the prospect of) a strike or other industrial action, that person shall, before being supplied with a work-seeker by an employment business, inform the employment business of that fact.

(3) Paragraphs (1) and (2) shall not apply if, in relation to the first worker, the strike action or other industrial action in question is an unofficial strike or other unofficial industrial action for the purposes of section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992.

(4) In this regulation and in regulation 7, “employment business” includes an agency.”

NC6

Right not to be excluded or expelled from union: repeal

Tony Lloyd Frank Doran Jon Cruddas Bill Olner Judy Mallaber John Mann

John McDonnell, Robert Flello, Ian Stewart, Chris McCafferty

To move the following clause:-

“In the Trade Union and Labour Relations (Consoliudation) Act 1992 (c. 52) sections 174 to 177 (which make provision about the membership of trade unions) are repealed

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