The government announced a series of modernising reforms to the rules on industrial action in 2015. Welcome to the Trade Union Bill, which received royal assent on 4 May 2016 to become the Trade Union Act 2016.
By tabling this new legislation, the government sought to strike a balance between upholding the ability to strike while reducing disruption to millions of people. It was hoped the changes would protect people from “undemocratic industrial action”, with strikes only going ahead where there was clear, positive support from union members.
Following much complaint from opposing MPs and Peers as the Bill progressed through the parliamentary stages, many of the provisions in the Trade Union Act have been watered down to those originally contained in the Bill when it was first proposed in July 2015. The Act may now be thought to be less draconian than originally anticipated, with the government having conceded a number of changes to ensure its passage into becoming law. Notable concessions included: aborting the proposed absolute ban on check off (being the process that allows deduction of union dues from a worker’s pay check by the employer, to be paid directly to the union); ditching the removal of the prohibition of engaging agency staff to cover when staff are partaking in industrial action (for the time being anyway); and extending the expiry of the ballot mandate from the originally proposed 4 months to 6 months, or up to 9 months if both sides agree.
The new Act has yet to be implemented and it remains unknown as to when the new rules will commence but it is expected to come into force in stages over the course of this year and potentially early next. The provisions of the Trade Union Act 2016 extend to the whole of Great Britain.
A summary of the main changes
- Ballot thresholds: a key aspect of the new Act is to introduce a minimum turnout threshold for the results of a ballot to have any real effect. Before, staff were deemed to be in support of industrial action if a strike ballot had the support of the majority of those that voted, irrespective of the percentage turnout of those eligible to vote. Now, industrial action will only be lawful where there has been a ballot turnout of at least 50%, and then a simple majority of those voting will need to vote in favour of the action. This is expected to make proposed large strikes in the public sector more difficult to organise. The NHS strikes in 2014 regarding pay, which saw voter turnout of just 19% of Unite members, would have been blocked under these proposed rules.
- Public Sector Employers: in addition to the introduction of a ballot threshold, there will be additional hurdles for lawful industrial action in “important public services”. In addition to a greater than 50% turnout, a further threshold of 40% of support to take industrial action from all eligible members must be met for action to be legal, meaning that non-voters are treated as ‘no’ voters. We await further detail on what said services shall precisely include but it’ll broadly be in health, education of those under age 17, transport, border security, nuclear decommissioning and fire sectors (note it is not intended to apply to staff members who are ancillary and offering support functions in these areas)
- Electronic Balloting: the government are required to commission an independent review for electronic balloting (as opposed to the antiquated paper and postal vote) for strikes later this year. However, it is worth noting that there is no legal commitment to its introduction.
- Notice Period: the minimum notice period for industrial action has been doubled from the current 7 days to 14 days. This obviously affords employers a longer time to get prepared for a strike. This period can however be varied to 7 days if the employer agrees.
- Voting Paper: there’s now a requirement for a clearer description of the trade dispute and planned industrial action on the ballot paper, so all union members are clear what they’re voting for. Currently, a trade union is only required to ask its members on the ballot paper which type of industrial action they want to take part in and this only need to be expressed in terms of whether this is strike action or action short of a strike. The ballot voting paper must now carry more information, including a summary of the matters in dispute and the period within which the action is expected to take place.
- Ballot Mandate: at present, there must be some industrial action within 4 to 8 weeks of the date the ballot closed for the mandate to remain valid. Action can then be taken indefinitely at any time on the back of that ballot, provided the dispute remains live. This is repealed and the Act provides that a ballot mandate will expire after 6 months, meaning industrial action has to start and finish within this time frame, or up to 9 months if both sides agree to this extension of time. After this time, the union will need to seek a new ballot for any proposed industrial action.
- Picketing: unions will now be required to appoint a picket supervisor, who must be readily identifiable at the picketing location. For example, the picketing supervisor may have to wear an armband, they will also need to have an authorisation letter and be familiar with the code of practice on picketing.
- Certification Officer (CO): the Act provides more powers to certification officers to ensure rules are followed by unions. The CO, under the Act, will have new powers to investigate and take enforcement action, including the imposition of financial penalties, against trade unions for breaches of their statutory duties. There will be changes to the annual returns filed by unions with the CO, including a requirement to set out details of any industrial action taken.
- Check off: for new members, it will be possible to operate a check off in the public sector but subject to certain conditions, for example providing alternative means of payment, such as direct debit. The union will also need to make reasonable payments towards the employer’s costs of operating check off. It’s going to take some time to sort this out administratively and for that reason the government has delayed implementation by at least 12 months.
- Political Funds: currently, members of a union automatically contribute to a union’s political fund, unless they actively take a decision not to contribute: an ‘opt out’ process. Under this 2016 Act, members cannot contribute unless they ‘opt in’. This change will only apply to new members joining after the date of the Act’s commencement and after a transition period of not less than 12 months. Information on opting out from such contributions will need to be provided on an annual basis.
- Facility time: employers in the public sector (and some private sector employers that provide public services) will have to publish information on ‘facility time’ such as the amount of paid time off for union duties and activities. The Act also allows the government to issue regulations restricting facility time at particular employers. This new provision is designed to promote transparency and public scrutiny of facility time.
- Agency workers: a repeal on the ban for employers to hire agency workers to cover for striking staff members has not been included in the Trade Union Act 2016. It is still however open to the government to do this at a later date.
Opinions
The Trade Union Bill has been widely criticised since it was announced last summer. Its passage through parliament has been far from smooth, and the government conceded a number of changes in order to ensure it made it to the finish line in becoming law.
Unions, predictably, are not supporters of this new legislation. They described the Bill (pre-enactment) as “draconian”, “unfair, unnecessary and undemocratic” and “an attack on worker’s rights”. Labour has stated it will repeal the legislation within a week should it form the next government after the 2020 general election (assuming no general election is held before this date). But, as previously mentioned, the government considered it necessary to safeguard the public against undemocratic industrial action.
The devolved governments in Scotland and Wales had voiced their opposition to the Act. However, trade union law is not devolved and the Act is set to apply equally in Scotland, England and Wales.
