The Trade Union Act will make significant changes to the law on industrial action, as well as affecting how public sector employers manage union facility time and check-off arrangements. It also changes the role and power of the Certification Officer (a form of regulator for trade unions).

As a Bill, it was subject to intense criticism from opposing MPs and Peers as it progressed through the parliamentary stages. As a result, the Government conceded a number of changes to secure its passage. In particular, it abandoned its absolute ban on check-off in the public sector and extended the expiry of the ballot mandate from four months to six months, or up to nine months if both sides agree.

Implementation timetable

The Act will not come into force immediately: some of its provisions require further legislation in the form of regulations which need to be made before they can be implemented. The remaining provisions require the Government to set a date for their implementation, which they have yet to do. Therefore, the implementation timetable is currently unclear. However, we expect phased implementation to commence this year with some changes, such as to check-off, to be delayed until 2017.

Key changes under the Act in overview

Balloting

  • A strike ballot must currently have the support of a simple majority of those voting. The Act introduces a new minimum voter turnout (i.e. that at least 50% of those entitled to vote do so) and an additional minimum support threshold applying in some important public services (i.e. that at least 40% of those entitled to vote must vote ‘yes’).
  • Important public services (IPS) include parts of the fire, health, education, transport, border control and nuclear services and include some private sector workers. Further regulations will be made providing the details.
  • The 40% support is triggered where the majority of workers are normally engaged in the provision of IPS. It does not cover ancillary workers engaged in IPS activities, as initially proposed. A trade union will have a ‘reasonable belief’ defence if it mistakenly breaches the 40% requirement.
  • The ballot voting paper must carry more information, including a summary of the matters in dispute and the periods within which the action is expected to take place.
  • Notice of industrial action to the employer is doubling to fourteen days (unless the employer agrees to seven days’ notice).
  • Currently, industrial action must take place within four to eight weeks of the ballot and action can be taken indefinitely, provided the dispute remains live. This is repealed and the Act provides that a ballot mandate expires after six months, or up to nine months if both sides agree.
  • Against its wishes, the Act requires the Government to conduct an independent review of electronic balloting for strike ballots. However, there is no legal commitment to its introduction.

Picketing, facility time, check-off and the Certification Officer

  • Parts of the Code of Practice on Picketing become legally enforceable, including the requirement to appoint a picket supervisor who is identifiable when present at the picketing location.
  • Public sector employers and some in the private sector (i.e. those with functions of a public nature and mainly public funded) with at least one trade union official will be required to publish facility time information, such as the amount spent on paid time off for union duties and activities. This change will not be introduced until further regulations, including defining which employers are included, have been made. The Act provides also for the possibility of future regulations limiting the amount and cost of facility time, should a particular employer’s facility time be a cause for concern.
  • Public sector employers and, as above, some private sector employers will only be able to make check-off deductions if the worker can pay its subscriptions by other means (such as direct debit) and the union makes reasonable payments towards the employers’ costs for the deductions. The Government has indicated that it will delay implementation by twelve months to allow for such arrangements to be made (and that it will monitor compliance).
  • The Act introduces new powers for the Certification Officer (CO) 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.

Finally, it should be noted that the Government announced last year a repeal of the ban on employers from hiring agency staff to provide cover during strikes. This change is not part of the Act and there is no further news on timing.

Comment

It is anticipated that the new ballot thresholds will focus trade union minds, for example, resulting in more strategic balloting where unions lack confidence in voter turnout or the level of support (in important public services ballots). Union leaders have warned of a resulting rise in alternative protests and wildcat action. Meanwhile, IPS employers are looking to the Government for clarity over which roles are subject to the 40% threshold.

While the check-off ban has gone, the changes still require affected employers to make arrangements to recover costs from their trade unions. Some charities, housing associations and similar employers, where they carry out public functions and receive public funding, will also be concerned to understand more clearly from the Government whether they fall under the facility time and check-off changes.

It also remains to be seen whether the Act will be resisted by the devolved administrations, to the extent that they cover devolved services. In particular, there is an appetite amongst some Welsh politicians to challenge the Government, if necessary in the Supreme Court, over the facility time measures. Some unions have also stated that they will fight the changes in the courts on human rights grounds. As such, the effects of the Act will only become clear over time.