Trade Union Bill introduces new requirements for industrial action

The Trade Union Bill has been placed before Parliament. When this becomes law it will introduce significant new requirements for protected industrial action, as well as introducing new obligations for those picketing employer’s premises. The Bill also suggests a clamp down on facility time for trade union duties by public authorities. The new law is likely to be good news for employers, albeit that it may lead to a change in the way that industrial disputes are conducted in the future.

The detail – industrial action

The law currently provides employees and their unions with protection against certain claims from employers if industrial action is taken in furtherance of a trade dispute. The Unions must comply with certain complex requirements around ballots and notification for industrial action to be protected. The Trade Union Bill before Parliament adds to these requirements with some new obligations as follows:

• For a ballot to support industrial action, at least 50% of those entitled to vote in the ballot must vote. This is a significant additional requirement. At present only 50% of those actually voting need to support action, which can often be a relatively low number if the turn-out is low. This new requirement means that at least half of the members of the trade union who the union reasonably believe at the time of the ballot they will be inducing to take part in the action, must actively vote (with more than half who vote saying yes to action). So apathy or indifference will stop lawful action taking place.
• For those in important public services, at least 40% of those who are entitled to vote must vote yes (which must also be more than half of those voting, with at least 50% voting). A consultation has been issued alongside the Bill to determine who and what occupations will be included in this definition from within: health services; education (schools not FE or HE); fire services; transport services; nuclear decommissioning; and border security. This is currently intended to cover both private and public sector organisations delivering these services.
• The ballot papers issued will also need to include: a reasonably detailed indication of the matters in issue in the trade dispute (expect some future litigation on what that means); what industrial action short of a strike might be taken if that is part of the ballot (rather than just the current support for non-specific action short of a strike); and the period or periods when the action will take place.
• A ballot will cease to support action after four months. So this gives a ballot a limited shelf-life, but may have the side-effect of hastening the escalation of action.
• The Union must give you two weeks notice of when industrial action will commence – doubling the current period. This is the notice required after the successful ballot, which gives you time to negotiate, prepare for the strike, or inform those affected such as customers, service-users and parents. This will be one of the most welcome changes for many employers.

So if you have a group of 1000 trade union members voting about potential strike action, 500 of them will need to vote otherwise action won’t be lawful. If 500 vote, 251 will need to vote yes. For those who fall in the important public services (when they are defined), at least 400 will need to vote yes (if between 500 and 800 vote, with a turnout of 500 required). However importantly this remains about the number of trade union members in the group who may take action, it is not about percentages of those in the affected workforce as a whole – so it requires relatively strong support from the union membership albeit that may not be a significant portion of your workforce. It may mean that strikes and ballots may be more particularly targeted to the parts of your workforce which have strong and active Union support. It also means disputes will become much more polarised between employer and employee because the union will need to obtain a significant proportion of its members’ support in order to engage in lawful industrial action.

The Government believe that these changes will lead to a 65% reduction in work stoppages in these important public services, so that’s good news for all employers. However they also suggest that union members will be more likely to vote if the turn-out levels are important, so the level of historic turn-outs may not be a good indicator of future action. There is also the possibility that you will face an increased risk of industrial action over the next few months, as the unions move towards industrial action more quickly to ensure that their voting papers have been sent out before this law comes into force – as that will mean that “only” the current requirements apply.

The detail – other points

For picketing, the Bill will introduce new legally enforceable requirements for an identified picket supervisor at each picket, being someone whose details will be given to the police and who is identifiable (by a badge, armband or other item). This is expected to make compliance with the code of practice on picketing more effectively enforceable. A separate consultation has also been commenced looking at tackling intimidation of non-striking workers.

For those of you who are a public authority, you will be subject to new requirements to publish details about how many and what percentage of your employees are given Union facility time (including a requirement to identify the cost of it as a percentage of your wage bill). The detail of what’s required will be in future Regulations. The Bill will also empower the Government to introduce future Regulations to limit the percentage of time any union official can spend on facility time and the percentage of your wage bill which can be spent on facility time. It looks like the days of the full-time official employed by public bodies is limited. There is however a consultation about this.

Alongside the Bill, the Government are separately consulting about removing the ban on using agency staff to cover those on strike.

What does this mean for me?

For those of you in sectors or industries where the risk of industrial action is part of your role, this Bill is hugely significant. It may reduce the bargaining power of Unions, particularly where their traditional power has been based upon a hard-core who votes within an apathetic membership. However these changes are likely to result in the Unions needing to re-think how they approach membership, negotiation and action. Where industrial action has strong support, this Bill will not stop it.

Comment

Whilst this Bill needs to go through Parliament and may yet change as it does so, it is highly likely that most of it will become law. If you have a view on the elements which are out for consultation you can respond to the Government directly, or we will be providing you with the opportunity to feedback comments to us to assist us in responding on your behalf. There also must be the likelihood of challenges to it before the Courts both in the UK and Europe based on the rights which are limited by it. Whilst generally good news for employers, the risk in any new law is the unintended consequences. Many of these changes are about lawful industrial action, but if the law becomes so onerous that workers and Unions feel the need to take action which is outside the protected element of the law (such as wildcat strikes without notice), there is a risk that this will have a greater impact for some of you even if you might have the potential for legal recourse against such action.

If you would like to discuss this legislation in more detail or have any questions about industrial action, please speak to your usual contact in the Weightmans employment, pensions and immigration team, or get in touch with Ben Daniel.