Strike reforms move closer 

The Government has published its awaited and controversial Trade Union Bill, setting out reforms highlighted in the Queen’s Speech, such as changes to strike thresholds and conduct requirements.

Key reforms of the Bill

  • a valid ballot mandate for strike action will require at least 50% of the members to  vote, and a majority of them vote yes;
  • a higher test will apply in “important public services” – such as health, education, fire, transport, nuclear energy and border security, in which at least 40% of those balloted must vote for industrial action as well as a majority doing so;
  • a minimum of two weeks’ notice of strike action;
  • the voting paper to identify the dispute and to specify the type and duration of the proposed industrial action;
  • a time limit of four months for industrial action to take place following a ballot– currently action can be taken indefinitely, provided the dispute remains live;
  • a requirement for pickets to be supervised by a named official, potentially enforceable by injunction;
  • a requirement for unions to provide information in their annual return on the amount of industrial action taken on each dispute;
  • a requirement  for opting-“in” to the political fund (as opposed to the current system of opting-“out”);
  • a requirement for public sector employers and (yet to be specified) employers delivering public services to publish information about how much time off they allow to trade union officials, with a reserved right to limit the amount and cost of time off allowed;
  • a series of measures to ensure greater scrutiny of unions’ internal governance;
  • a right for the Certification Officer to impose a levy on unions and employers associations to cover his expenses.

Consultations

The Bill is accompanied by three consultations, seeking views on:

Time frame

Given the Parliamentary timetable, the Bill is not expected to be implemented until next Spring, at the earliest. The reforms will not be retrospective and will only affect ballots arising after the Bill becomes law.

However, the ban on the use of agency workers could be lifted much sooner as ministers already have power in existing legislation to change this aspect of the law.  

Higher thresholds for ballots

Requiring at least half of the members entitled vote in a ballot to do so, is a significant shift from the current position, where ballots may be carried by a simple majority of those voting. So, whereas currently, a ballot would be supported if five out of 100 members vote and three of those vote “yes”, under the Bill, at least 50 out the 100 would need to vote and, of those, at least 26 would need to vote, “yes”.

An even higher threshold will apply for employees engaged in important public services. In those sectors, which will be clarified in future regulations but are likely to include health, schools, fire, transport, nuclear energy and border security, a mandate for action  would only be secured if 50 out of  100 members vote and at least 40 vote “yes”.

Employers providing these services will have an opportunity in the consultation to submit their views on how these provisions should be applied. For example, in relation to the transport sector, the precise scope of the transport sector, which modes of transport should be included and which grades of staff should be subject to the 40% threshold.   

Preventing intimidatory pickets and protests

The Government’s proposals for reducing intimidation on the picket line includes considering whether the rules governing picketing should be made legally enforceable.

More radically, it also extends to considering whether unions organising protests (such as Unite’s Leverage tactics) should be required to give advance notice of “…the details of their picketing and protesting strategy to employers…”

Greater staffing options for employers

Outside of the Bill but intrinsically linked to the Government proposals is the proposal that employers will no longer be prevented from engaging agency workers to maintain operations during a strike. Such a step has been unlawful for over a decade as a result of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, limiting staffing options and operational continuity during strike action.

The consultation seeks feedback on the potential impact of the removal of this provision. The Government aims to issue a response by the end of October 2015. This issue is controversial but is nonetheless one to which the Government appears committed. In practice, of course, employers of specialist workers cannot easily replace them with agency staff. 

Comment

Whilst the proposed changes are significant and politically charged, many recent strikes would have met the proposed new threshold and so would have remained lawful under the proposed law. Further, only a small minority of private sector companies now have a unionised workforce, so most businesses will not feel the effects of the changes, the incidence of strikes in the private sector (apart from companies providing legacy public sector services such as transport) being very low.

A number of trade unions have been vociferous opponents of the proposals with some, including Unison, indicating that they will challenge the reforms in the courts (for example, alleging a restriction on their right to strike contrary to the European Convention on Human Rights) and may even flout the rules and conduct unlawful strikes. It remains to be seen whether they do so.

The outcome of the consultations appears unlikely to deter the Government from the key aspects of reform to which it has committed.

It is possible that the changes will encourage more union members to vote and, therefore, if there is a “yes” vote for industrial action then the union’s mandate will be stronger.

Unions will in future be more careful about defining the constituency for the ballot – they may be tempted to hold more localised ballots or to ballot only members working in key grades.

Other consequences might include unions using more “soft power” in the form of organising protests or corporate campaigns, to apply pressure on an employer to achieve their objectives, activities which are increasingly prevalent following the development of social media.  However, the Government’s consultation suggests that it is intent on controlling more closely the use of these tactics, although it is unclear whether new measures would be limited to protests linked to industrial disputes.

Alternatively, workers might in future express their grievances in other ways, such as collectively refusing to volunteer for overtime, which can have a dramatic impact on businesses which depend heavily on overtime, such as some transport and manufacturing companies.