Thursday, May 21, 2015

The threat to DOCAS is real and imminent - we ignore it at our peril

Much effort is being expended within UNISON to spread complacency about the threat to the survival of the Union posed by the Government’s manifesto commitment to “legislate to ensure trade unions use a transparent opt-in process for union subscriptions.” Considerable hope is invested in the possibility that no new primary legislation to this effect will be flagged up in the Queen’s Speech next Wednesday.

This desperate imitation of an ostrich completely ignores, of course, the fact that our members in the civil service (for example in that part of probation which has not been privatised) are – along with all the other civil service trade unions facing the withdrawal of deduction of contributions at source (DOCAS) without there having been any legislation at all. There is little doubt that the Government has the same authority in the English health service that it had in the civil service departments to drive through similar changes without legislation should it wish to do so.

Obviously though, the Government would eventually need to legislate if it wanted to force organisations which it does not directly control to abandon DOCAS. Perhaps the silliest thing I have heard said this week on this topic was a report from UNISON’s Greater London Region Recruitment and Organisation Committee where – apparently – it was suggested that it would be difficult for the Government to legislate away DOCAS. This suggestion betrays a breathtaking ignorance of the recent history of employment legislation in the United Kingdom.

Section 15 of the Trade Union Reform and Employment Rights Act 1993 (as originally enacted) amended section 68 of the Trade Union and Labour Relations (Consolidation) Act 1992 to require employers deducting union subscriptions to have the signature of each employee at least once every three years (until the New Labour Government repealed this in 1998).

One option, if the Government wished to discourage DOCAS would be to re-impose this restriction, or to require more frequent approval (say annually). This would create a significant administrative burden on both unions and employers and would probably impel the withdrawal of DOCAS in many instances (since, as we know from the experience in the civil service, even contractual arrangements with employers provide no useful safeguard to DOCAS arrangements).

An even simpler legislative change would be to amend either s68 of the 1992 Act or Section 13 of the Employment Rights Act 1996 so that deductions in respect of union subscriptions could not be authorised deductions. This would mean that any employer making such deductions would be at risk that any union member might, at any point, ask for all the subscriptions deducted from their pay to be reimbursed to them. Unless trade unions indemnified employers (at incalculable financial risk) employers would clearly not bear that risk themselves.

Neither of these possible legal changes would be right, or fair, or justifiable and each would only be considered by a Government which cared nothing for fairness but was motivated by an ideological hostility to trade unionism per se. A bit like a Government that would introduce a 50% turnout threshold in strike ballots and a threshold of 40% of the total membership voting yes in ballots in “essential services.

The threat to DOCAS (the means whereby 70% of our members pay their union subs) is very real and very imminent and anyone who doesn’t think we should give a high priority to preparing an urgent response is not paying attention.

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