Section 172A of the Trade Union and Labour Relations (Consolidation) Act 1992 (inserted by the Trade Union Act 2016) came into force on 1 March 2017. This provision allows a Minister of the Crown to make regulations requiring relevant public sector employers to publish information relating to facility time for relevant union officials.
These regulations - the Trade Union (Facility Time Publication Requirements) Regulations 2017 (“the Facility Time Regulations”) - have now been made and will come into force on 1 April 2017. The Facility Time Regulations require relevant public sector employers to publish specified information on an annual basis covering the 12 month period beginning with 1 April. The first relevant period runs from 1 April 2017 to 31 March 2018. The information must be published on a website maintained by or on behalf of the employer before 31 July in the calendar year in which the relevant period ends. Therefore, the first information under the Facility Time Regulations must be published before 31 July 2018. The information must also be placed, prior to 31 July in each calendar year, on a website maintained by or on behalf of the UK Government.
Which institutions are covered?
Whilst the explanatory notes to the Trade Union Act 2016 merely said that the definition of a relevant public sector employer would include state-funded schools (including academies and free schools) and therefore may not extend to higher and further education institutions, Schedule 1 of the Facility Time Regulations sets out a list of the public sector bodies to whom the provisions will apply.
In relation to educational institutions the list is very similar to that contained within the Freedom of Information Act 2000 and covers:
• higher education corporations within the meaning of section 90(1) of the Further and Higher Education Act 1992;
• institutions in the further education sector within the meaning of section 91(3) and (3A) of the 1992 Act;
• a designated institution for the purposes of Part 2 of the 1992 Act;
• a university, including any college, school, hall or other institution of that university, receiving financial support under section 65 of the 1992 Act;
• the governing body of an institution in receipt of funding from the Scottish Further and Higher Education Funding Council or a regional strategic body;
• the proprietor of an Academy School, a 16-19 Academy or an alternative provision Academy; and
• the governing body of a foundation school, voluntary aided school or foundation special school.
There is also a threshold for the number of employees, though this is set fairly low. The institution falls within the ambit of the Facility Time Regulations provided it has a full-time equivalent number of more than 49 employees throughout the entirety of any seven of the 12 months within the relevant period. Consequently the provisions will apply to most education institutions.
The legislation is stated to apply in England, Wales and Scotland, although the definition of a relevant public sector employer excludes authorities listed in Schedule 1, which are devolved Welsh authorities. This means that the provisions will not apply to education institutions in Wales.
What are institutions required to publish?
An institution is required to publish various information in relation to “relevant union officials” and “facility time”.
A relevant union official means a trade union official; a learning representative of a trade union within the meaning of the 1992 Act; or a safety representative appointed under regulations made under the Health and Safety at Work Act 1974.
Facility time means time off taken by a relevant union official, that is permitted by the institution, in order to:
• carry out trade union duties, the duties of a union learning representative or activities in relation to which an employee is acting as a representative of the union;
• accompany a worker to a disciplinary or grievance hearing; or
• carry out duties and receive training under the Safety Representatives and Safety Committees Regulations 1977.
The information that must be published (as set out in Schedule 2) is as follows:
Table 1- Relevant union officials. This is the total number of employees who were relevant union officials during the relevant 12 month period, together with the full-time equivalent employee number.
Table 2 - Percentage of time spend on facility time. This requires information to be given as to the number of employees who were relevant union officials employed during the relevant period who spent 0%; 1-50%; 51-99% or 100% of their working hours on facility time. This information is to be provided by way of a table with the relevant numbers of employees entered alongside each of the four different percentage ranges.
Table 3 - Percentage of pay bill spent on facility time. The institution is required to give three figures here - the total cost of facility time; the total pay bill and the percentage of the total pay bill spent on facility time.
The Facility Time Regulations specify that the total cost of facility time is calculated by taking the following steps:
1. determine the hourly cost of each employee who is a relevant union official during the relevant 12 month period;
2. multiply the hourly cost for each such employee by the number of paid facility time hours spent by that employee on facility time during the relevant 12 month period;
3. where there is more than one employee who is a relevant union official, add together each of the amounts produced by step 2.
In calculating the hourly cost for step 1, the institution adds the amount spent on gross wages, pension contributions and national insurance contributions in respect of the employee during the relevant 12 month period and divides that by the working hours of the employee during the period. Where providing the actual hourly cost could lead to the amount of wages paid to an individual employee being identified, then the institution can use a notional hourly cost instead, although that must be reasonable having regard to the type of work the identifiable employee ordinarily did during the relevant period. This is most likely to be relevant where there is only one relevant union official.
The total pay bill is calculated by adding the total gross amount spent on wages by the institution in respect of all of its employees during the relevant 12 month period to the amount spent by it on pension contributions and national insurance contributions.
The percentage of the total pay bill spent on facility time is calculated by dividing the total cost of facility time by the total pay bill and multiplying by 100.
Table 4 - Paid trade union activities. Here the institution is required to publish, as a percentage of total paid facility time hours, how many hours were spent by relevant union officials employed by it on paid trade union activities during the relevant 12 month period.
This figure is calculated by dividing the total hours spent on paid trade union activities by the total paid facility time hours and multiplying that figure by 100.
Paid trade union activities means the time taken off by relevant union officials during their working hours for the purpose of taking part in any activities in relation to which they are acting as a representative of the union and for which they receive wages from the institution.
Total paid facility time hours means the total of all hours spent on facility time by all employees who are relevant union officials, excluding hours when such employees are taking part in any activities when acting as a representative of the union for which they are not paid by the institution.
As mentioned, the first set of information must be published before 31 July 2018. Given that it will relate to the period 1 April 2017 to 31 March 2018, that in effect provides a four month window for the information to be published. Whilst the time taken to carry out the calculations will depend to a degree on the number of relevant union officials during the 12 month period, it is worth noting that the institution will have to provide the total pay bill in relation to all its employees.
It is also worth noting that whilst the Facility Time Regulations provide for a requirement to publish information separately relating to central function employees, education function employees and fire and rescue function employees (as far as the relevant public sector employer has employees within these three categories), this provision applies where the employer is a local authority and is therefore of limited applicability to the education sector.
In addition to the Facility Time Regulations, the Government has also published draft regulations on the changes to the check-off system. These regulations are intended to come into force on 10 March 2018. With effect from that date, a relevant public sector employer can only make deductions from its workers’ wages in respect of trade union subscriptions if the workers have the option to pay their trade union subscriptions by other means, and arrangements have been made for the union to make reasonable payments to the employer in respect of the making of the deductions. The definition of relevant public sector employer is the same as that under the Facility Time Regulations (save that there is no minimum number of employees to trigger the requirement). This will therefore apply to the vast majority of education institutions in England and Scotland.