In this article, Beverley Ensor examines the proposed reforms to trade union action and the impact these will have.

Proposals for the biggest crackdown on trade union action for 30 years were given a second reading in the House of Commons on 15 September 2015. The scale of the reforms goes far wider than the plan trialled before the election for strikes to be made unlawful unless 50% of those being asked to strike vote in the ballot, including new plans to criminalise picketing, permit employers to hire agency staff to cover for striking workers and to require that at least 40% of those asked to vote support the strike in most key public services. This double threshold would have to be met in any strike called in health, education, fire, transport, border security and energy sectors. Although the proposed reforms were in the Conservative manifesto, the timing of the legislation undoubtedly capitalises on the impact which recent London Underground disruption has had on public sympathy for strike action. However, in reality the proposed new rules would have little impact in the transport sector, where ballot turnout is traditionally high. 

In addition the Bill will:

  • Require a union to give the employer at least 14 days’ notice before industrial action can begin (currently only 7 days’ notice is required).
  • Require a union to hold a new ballot to renew the mandate for industrial action within four months of the first ballot – currently the ballot can remain valid indefinitely, provided the underlying dispute remains the same.
  • Require a clear description of the trade dispute and the planned industrial action on the ballot paper.
  • Allow employers to hire agency staff to cover for striking workers – this is currently prohibited.
  • Make unlawful or intimidating picketing a criminal offence and provide new protections for workers unwilling to participate in strike action. A named official will be required to oversee the picket and must be identified and available to the police.
  • Increase the powers of the certification officer including powers to fine trade unions up to £20,000 for breaches of reporting rules, which will include a new requirement on unions to report to the certification officer on industrial action taken in the last year in its annual return.
  • Require all unions to ask each existing union member whether they wish to pay the political levy and then repeat the question every 5 years. The £25m annual political fund income funds a wide range of political campaigning, including being a chief source of funding for the Labour party.
  • Provide for regulations to set a limit on so-called ‘facility time’ in the public sector; i.e. the proportion of working time any public sector worker can spend on trade union duties. The current right is to a “reasonable” amount of time at the discretion of individual employers but some large organisations effectively have employees employed full-time on union duties. 

The proposals may have unintended consequences for employers. Where strikes become more difficult, or where legal picketing is curbed, we are likely to see more wildcat action and concerted ancillary protests by trade unions who are deprived of the ability to take lawful action. The news that the UK’s biggest union, Unite, has passed a motion to remove a clause in its rules that requires members to remain within the law when staging protests may signal a move in this direction. Such targeted action can be more disruptive than lawful strike action. There is also a danger that by requiring higher numbers to vote in favour of industrial action, attitudes will become more entrenched at an early stage in the dispute, making it more difficult to negotiate a settlement. 

If passed in its current form, the Bill has the potential to significantly change the current industrial relations landscape. The risk of wild cat strikes should prompt employers to consider what contingency plans need to be in place. Whilst the use of agency staff may help mitigate some of the effects, employers would be wise to consider how more specialist roles which require skills or experience that may not be so widely available could be covered on very short notice.