The Government has reported to have saved some £26 million by "curbing" the activities of union representatives in the civil service. As part of the Government's proposed package of measures to take this further the draft Trade Union Bill (introduced on 15 July 2015) inserts a new section 172A into the Trade Union and Labour Relations (Consolidation) Act 1992 ('TULR(C)A 1992'). This new section would enable regulations requiring some or all public sector employers (see below) 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, the 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.
What information must be published?
The information that could be required to be published includes, in summary:
- 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;
- information relating to facilities provided for use by trade union officials.
Regulations (which have not been published as of yet) may make provision as to the times or intervals at which the information is to be published and the form in which it is to be published. The regulations may also impose different publication requirements on different categories of relevant public sector employers.
Which employers will be covered?
Further information about the employers who will be covered by these new rules will be set out in regulations which will be published in due course. However, the currently proposed new section 172A TULR(C)A 1992 includes a number of relevant provisions as regards the proposed scope of the scheme:
The proposed new section 172A(1) states that:
"A Minister of the Crown may by regulations require relevant public sector employers to publish [the relevant information]"
The proposed new section 172A(2) states that:
"An employer is a relevant public sector employer if the employer-
- is a public authority, and
- has at least one employee who is a relevant union official."
The proposed new section 172A(9) clarifies the potential application of the rules further, and states:
"The regulations may provide, in relation to a body or other person that is not a public authority but has functions of a public nature and is funded wholly or partly from public funds, that the person is to be treated as a public authority for the purposes of subsection (2)."
Further explanation is contained in the explanatory note to the Bill. This says that public sector employers are employers that are public sector authorities or are to be treated as such:
"This would include central government bodies such as Civil Service departments including non-ministerial departments and their executive agencies, Non Departmental Public Bodies, local government bodies such as councils, fire and rescue authorities and Transport for London. It would also include NHS bodies (including trusts), state-funded schools (including academies and free schools) and public corporations such as the BBC. A public authority may be a body or may be an office holder."
Whilst the explanatory note does not expressly refer to further education and higher education institutions, we understand that the proposals regarding facility time are intended apply to both further education and higher education (in addition to schools and academies). It is hoped that this will be clarified further when the regulations are published.
What additional powers are imposed in relation to facility time?
The draft Bill also provides a 'reserve power' for further regulations which limit the paid time off for facility time taken by the employer's trade union representative to a percentage of the representative's working time. The explanatory notes give an example of an employer that employees a number of trade union representatives who spend 100% of their working time on facility time. This proposed new power may be exercised so as to limit the time spent by those representatives to 50% of their working time. Alternatively, or in addition, the regulations may cap the percentage of the employer's pay bill that is for facility time. The regulations may also modify certain statutory or contractual rights of trade union representatives to time off for trade union duties or activities.
Whilst we await further detail of the scope and application of these provisions, those institutions to whom they apply are likely to need to carefully review their existing arrangements for facility time and consider the extent to which those arrangements represent value for money.
Other proposed changes in the draft Bill
Key changes include a package of measures aimed at "strike laws":
- proposed changes to balloting laws with an additional higher threshold applying in "important public services".
- permitting the use of agency workers to cover striking staff. The Government has consulted on removing the current ban on the use of agency workers in this way and is committed to issuing a response by the end of October 2015. This is a controversial issue, but also reflects a manifesto commitment. In practice, specialist workers cannot easily be replaced with agency staff;
- a doubling of the minimum notice of strike action to two weeks;
- the voting paper to identify the dispute and the duration of the proposed industrial action and to specify the type of any industrial action short of a strike;
- the requirement that some industrial action must take place within four to eight weeks of the ballot will be repealed - instead, a ballot mandate expires after four months (currently action can be taken indefinitely, provided the dispute remains live). The combined effect is to provide a four month window for negotiation and possible strikes;
- a requirement for pickets to be supervised by a named official, potentially enforceable by injunction. The Government has also consulted on further measures to tackle intimidation of non-striking workers, including requiring a union to publish an Industrial Action Plan giving advance notice of picketing and other protest activities; and
- a new investigatory powers and sanctions to be made available to the Certification Officer.