The bill was laid before parliament last July and one of its proposals relates to public sector facility time – the time-off given to an individual by their employer to carry out their role as a trade union rep. Under the bill ministers would gain a new power to set a limit how much time union reps are allowed by public sector employers.
The power to restrict facility time was described as “wrong, potentially unlawful and dangerous” by Hugh Robertson, the TUC’s senior policy officer for health and safety on the Stronger Unions blog before the 16 March debate.
“A safety representative, although appointed by a union, does not just fulfil a trade union role. It is a special legal position with defined functions. The regulations state that they represent all workers in a workplace, not just union members,” he said.
This point was also made in the debate on 16 March by Lord Mackenzie of Luton who was health and safety minister under the last Labour government. Mackenzie noted that safety reps’ time was mandated by the Health and Safety at Work Act and by the 1989 EU Framework Directive, which 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”.
“The legal requirement under the directive is for the employer to comply in allowing time off,” Mackenzie told peers. “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.”
For the government, Lord Bridges of Headley said ministers would only use the power to limit facility time as “a last resort” if spending in a part of the public sector was unacceptably high or “if a significant proportion of the cost of facility time is spent on trade union activities as opposed to duties”.
Referring to employers’ duties to allow sufficient time off for safety reps, Lord Bridges said: “I cannot envisage any circumstances under which this government would introduce such a restrictive cap that important statutory obligations could not be met … union duties such as health and safety will remain a statutory obligation.”
Lord Kerslake, who moved the amendment striking Clause 13, concluded the debate describing the clause as giving ministers “overweening central power, with no justification whatever”.
Peers voted to accept the amendment by 248 to 160. The Lords also passed other amendments to the bill.
Commenting on the votes, the TUC’s general secretary Frances O’Grady said: “These defeats should be the nails in the coffin for the whole Trade Union Bill.”
On 18 March the TUC announced it had produced new guidance in partnership with Hazards Magazine to help unions attract new members and encourage existing members to become health and safety representatives. Health and Safety and Organising – A guide for reps suggests that unions can engage members in safety and health issues by involving them in identifying hazards at work, finding solutions and dealing with problems.