In July this year, the Government introduced the controversial draft Trade Union Bill, following the announcement in the Queen’s Speech on 27 May 2015 that the Government would introduce legislation to reform trade unions and to protect essential public services against strikes.
The proposed reforms include a minimum of two weeks’ notice of strike action; changes to 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; and, 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.
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, a ban on the use of agency workers during strike action could be lifted much sooner as ministers already have power in existing legislation to change this aspect of the law.
Under the current rules, for a strike to be lawful, a simple majority of those taking part in the ballot (regardless of how many members take part) is required. The new bill proposes that a valid ballot mandate for strike action will require at least 50% of the members to vote, and a majority of them will need to vote yes. Requiring at least half of the members entitled to 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”.
A higher threshold for ‘important public services’
A higher test is proposed for those in ‘important public services’, in which at least 40% of those balloted must vote for industrial action as well as a majority doing so. What will be considered to be an ‘important public service’ will be clarified in future regulations but is likely to include education (the Bill refers to ‘education of those aged under 17’), health, fire, transport, nuclear energy and border security. In those sectors, a mandate for action would only be secured if 50 out of 100 members vote and at least 40 vote “yes”.
The Bill also includes a proposal which will enable the Government to make regulations requiring some or all public sector employers with one or more trade union representatives to publish information about the time off taken by those representatives for trade union duties and activities (referred to as “facility time”).
According to the Government, these new provisions are designed to promote transparency and public scrutiny of facility time and to encourage employers to moderate the amount of money spent on facility time in light of that scrutiny. The information that could be required to be published includes, the number of such representatives by type; how many of them spend a specified percentage of their time on trade union duties and activities; information about the employers’ spending on trade union duties and activities; and, information relating to facilities provided for use by trade union officials.
Further information about the employers which will be covered by the new rules in respect of facility time will be set out in regulations which will be published in due course. However, the explanatory note accompanying the Bill provides that academies will be considered to be a public authority for the purpose of this section and, therefore, will be covered by the new rules regarding facility time.
Whilst we await further detail of the scope and application of these provisions, academies should carefully review their existing arrangements for facility time and consider the extent to which those arrangements represent value for money.
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. This issue is controversial but is nonetheless one to which the Government appears committed. In practice, of course, academies cannot always easily replace specialist staff with agency staff. There are also questions about the willingness of agency staff to cross picket lines as many are union members.
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. 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.
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.
Alternatively, workers might in future express their grievances in other ways, such as collectively refusing to undertake additional duties or, for example, to volunteer for overtime, with the resultant detrimental impact on service delivery.