Here is a short guide to the main provisions of the Trade Union Bill which went through its first reading in Parliament earlier this week. The Bill is either a malicious attack on the noble workers of Britain or a welcome redrawing of the boundaries around the disruption which striking can be allowed to cause, depending on what you read. There are certainly provisions within it which could justify both conclusions.
In essence, the Bill does not affect the basic right to strike, but merely some of the administrative provisions around it. In particular:-
- in any valid ballot for industrial action there must be at least a 50% turnout of those entitled to vote.
- in most cases a majority of those voting will carry the day. This creates the possibility that a perfectly lawful strike could be triggered by scarcely a quarter of those eligible to vote, a point which those union leaders making snide remarks about the Tories’ share of the vote at the last election appear to have overlooked;
- in certain “important public services”, however, at least 40% of those eligible to vote must support the industrial action. There is a BIS consultation paper about what should count as an important public service, but the Government appears in reality to have made up its mind on this already. Included in the Bill is a list from health services to nuclear decommissioning workers and (no doubt with a certain sense of satisfaction) transport workers. The irony is that the most recent Tube strike would reportedly have passed these new hurdles anyway. It might not hurt to include binmen on public health grounds, but otherwise the list seems fairly predictable.
Putting that in numbers, assume a workforce of 1,000 people. At least 500 must turn up to vote for the thing to get off the ground at all. If it is an important public service, at least 400 must vote for the strike, but if 400 were still a minority, the ballot fails. Therefore if 700 vote, including 400 for industrial action, the strike will be lawful, but if 900 vote, 400 in favour, it will not.
- the employer will be entitled to 14 days’ notice of industrial action in place of the current 7;
- the ballot result only lasts four months, however overwhelming the majority, after which a fresh one will be required;
- there must be a union supervisor at or near any picket. He must carry a letter confirming his position as such to be shown to any enquiring constable. He must also wear an armband or badge identifying him as the supervisor. The Bill does not strictly require that on the armband be written “If in doubt, arrest ME”, though that is clearly the general idea.
Issued at the same time as the consultation on what should count as an important public service, but not (so far) included within the Bill, are two other open questions from BIS:
First, should Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 be removed? This Regulation currently prevents employment businesses from providing agency workers to cover for striking employees.
Second, whether it is necessary to revise law or guidance around the intimidation of non-striking workers, including via social media. It is hard not to see this second consultation as a deliberate looking for trouble on the part of the Government, largely because the existing civil and criminal law makes intimidation unlawful already, including in the picketing context. In addition, the consultation document “invites evidence of intimidatory behaviour experienced during industrial disputes”. One might have thought that if the Government had concluded on objective grounds that changes to picketing law were genuinely necessary, it would have that evidence already. The real objective here is not well hidden – the consultation description expressly seeks views on “proposals that aim to increase union accountability”. It will certainly pay to think carefully before you don the Armband of Strife. Maybe that’s the point too.