Trade union statistics show rising membership in the private sector

The 2013 annual BIS trade union statistics reveal that trade union membership remained broadly unchanged at approximately 6.5 million members. However, this masks a continuing decline in membership in the public sector which has been offset by a small increase in the private sector for the second consecutive year. In 2013, the private sector membership rate was 14.4%, compared to 55.4% in the public sector. There was a 6% fall in public sector membership between 2010 and 2013 (reflecting austerity measures) while private sector membership increased by 7% from 2010 to 2013. This rise in the private sector was contributed to by higher membership levels in the ‘transport and storage’, ‘financial and insurance activities’ and ‘arts, entertainment and recreation’ sectors.

The Conservative Party manifesto and strike law reform

In our March Labour Law Update we reviewed the law relating to a possible introduction, should the Conservative Party win the next election, of minimum service levels for essential public services. Speaking on the BBC, Mr Cameron has said: "I think [the] time has come for setting thresholds in strike ballots in essential services. It is not something I can achieve in a coalition government. It is something that will be in our manifesto." Of broader potential impact for employers, The Sun newspaper has reported a further intention by the Conservatives to introduce an expiry date on a strike ballot mandate, so that after three or six months the union would need to re-ballot should the dispute be continuing. 

New EU Disclosure Directive on corporate respect for human rights

Labour practices and conditions in developing countries are under increasing scrutiny. Allegations of sweatshop factories, forced labour and anti-union practices have been made against a wide-range of companies, particularly those reliant on foreign supply chains. National and global trade unions have been active in this area, for example, pursuing “naming and shaming” corporate campaigns that target specific employers with the aim of securing a global framework agreement. Such agreements commit the employer to uphold international human rights standards, union monitoring and, often, neutrality in response to union organising.

Against this background, the EU is expected to formally adopt over the summer a new Directive which imposes a mandatory disclosure duty on listed companies with more than 500 employees in relation to corporate respect for human rights. Currently, the draft Directive requires an annual report on social and employee matters, respect for human rights, anti-corruption and bribery matters, including identifying risks (including appropriate business partner/supply chain risks), describing the relevant policies (for example, human rights policy) and due diligence processes implemented together with the outcome of those policies. In the absence of any information to disclose, the statement must provide a clear and reasoned explanation. There are limited exemptions, for example, if disclosure would be seriously prejudicial to the business. If adopted, Member States will have until 2016 to implement the Directive. Increasing disclosure in this way will undoubtedly provide leverage to trade unions and other interested parties, such as NGOs, in their global labour standards campaigns.

PCS and Unite merger talks still on – but facing opposition

The proposed merger between PCS and Unite is still on, but only after delegates at the recent PCS conference initially opposed the negotiations and later demanded conditions to be attached before allowing them to proceed. The opposition reflects a number of concerns, including a potential loss of political independence if PCS merges with the Labour affiliated Unite. As such, expectations that a merger would be well on its way by early next year now seem highly unlikely.

UK labour case law update

North Essex Partnership NHS Foundation Trust v Bone: trade union protections 

Where a staff association or similar employee body becomes a trade union, at what point do employees gain the additional statutory protections against unlawful trade union discrimination? In this case the EAT had decided it is only when the union obtains its certificate of independence and not before. As a result, it decided that the tribunal had no jurisdiction to hear the detriment complaint which related to events which preceded the certificate of independence. However, the Court of Appeal disagreed with the EAT, deciding that instead of refusing jurisdiction in the absence of a certificate of independence, the matter of independence should be referred to the Certification Officer.  

Lock v British Gas: holiday pay litigation and labour law             

The European Union Court of Justice has decided that commission payments should be taken into account when calculating a worker’s holiday pay – reversing the approach taken by the UK courts (read our briefing for further information). In addition, whether voluntary overtime pay should also be included in holiday pay will be considered by the Employment Appeal Tribunal at the end of July.

As a result, many employers are reviewing holiday pay arrangements to assess potential liabilities, including the risk of claims for back pay. Trade unions are increasingly alive to the issue, with some collective grievances being pursued, with the result that this litigation is of particular significance to employers with collective bargaining agreements. Although it may be appropriate to wait for UK law to be further clarified before taking action, employers with recognised unions will additionally need to consider their labour relations environment as part of their due diligence.

RMT v United Kingdom: European Court considers UK strike laws

RMT complained to the European Court of Human Rights that certain aspects of the statutory strike rules in the UK breached Article 11 of the European Convention (freedom of association); specifically, the requirements for a lawful strike ballot notice and the ban on secondary action.

The Court rejected the strike ballot notice complaint as inadmissible. It looked at the facts of the particular case that RMT had raised (a 2009 dispute with EDF which resulted in an injunction against RMT to prevent strike action) and observed that, while the union experienced some delay in taking strike action due to the injunction, it succeeded in leading a strike two months later and securing an improved pay offer. This, the Court considered, was successful collective action and therefore no breach of Article 11.

In relation to the secondary action complaint, the Court confirmed that the ban on secondary action restricts the exercise of Article 11 rights. As such, the UK government was required to show that the prohibition was justified – that it pursued a legitimate aim and was necessary to achieve those aims. The Court was satisfied that the ban pursued the legitimate aim of protecting the rights and freedoms of others not involved in a dispute. It was also justified, given that governments must be afforded a margin of appreciation as to how trade-union freedom is secured and this margin is wider where a peripheral aspect of trade union activity, such as secondary action in this case, is involved.