After a fairly challenging ten months the Trade Union Bill completed its passage through parliament, and became the Trade Union Act 2016 on 4 May. No commencement date is specified in the Act so that will be detailed in due course by statutory instrument.
Some concessions have been made by the government in the light of concerns raised by the House of Lords. Some of the more contentious measures such as an obligation on the part of trade unions to provide employers detailed plans of pickets and social media campaigns two weeks in advance, or requiring everyone on a picket line to share their personal data to the police, employers or anyone else, have been dropped.
But some of the more eye-catching parts of the original Bill, as trailed in manifesto commitments in 2015, remain intact. Therefore, the requirement for a 50% turnout from all eligible voters in order to authorise industrial action will apply. Industrial action in ‘essential public services’ (health, education, fire transport, nuclear decommission and border security) has a double threshold demanding at least 40% of those entitled to vote to be in support of the action. It is worthwhile noting that the original plan for the double threshold to apply to ancillary workers engaged in these essential services (e.g. cleaners, support staff) will not apply.
The Act further regulates the balloting provisions by requiring a clear summary of the matters at issue in the trade dispute together with details of the proposed action to be included on the ballot paper. Significantly, ballot mandates will only be valid for six months (or, where agreed with the employer, this can be increased to nine) when previously there was no time limit to the mandate. Unless disputes are settled quickly, we are likely to see more re-balloting. A potential unintended consequence may be the hardening of positions at the outset of industrial action because of the potential impact of the need to re-ballot.
Unless the union and employer reach an agreement to maintain the usual one week notice period, the union will need to give 14 days’ advance notice of any strike action.
Existing union members will no longer be compelled to ‘opt in’ to paying the political levy of their unions. Instead, only new union members will be required to ‘opt in’ and there will be an increased period of 12 months (increased from 3) for this change to be brought in. The system of deducting union subscriptions directly from workers’ wages (‘check off’) in the public sector will not be abolished. However, trade unions will now have to pay the processing costs of the ‘check off’ system in the public sector.
Another important change for employers in the public sector is the introduction of a requirement for them to publish information on ‘facility time’ such as the amount of time union officials spend on trade union activities. Secondary legislation will specify which employers will be caught by these requirements and what information they must publish. The Act also allows scope for future regulations to impose caps on the amount of facility time at a particular employer if the cost of this to the public presents a cause for concern.
As regards next steps we should anticipate a tranche of supplementary regulations and codes of practice. The long-standing prohibition against employers using agency workers to replace striking workers has been the subject of separate consultation and has yet to be finalised.
It also important to note the government’s commitment to undertake an independent review of e-balloting for strike and industrial action ballots within six months. Efficient and effective use of electronic media may well assist trade unions when organising strike ballots more cost effectively. The government has voiced concerns as to the data security/integrity of such a process.
While the unions have welcomed the concessions reflected in the Act, they have made it clear that they remain opposed to the Act and the Labour party’s current stated position is that it will repeal the legislation within a week should it form the next government after the 2020 general election . Therefore the practical effects of the Act are likely to continue to be a focus of debate and review.