As we reported earlier this month, the new Conservative Government is to change the laws on industrial action. The Trade Unions Bill, introduced in the Queen's Speech last week, will include:
- a minimum 50% turnout in ballots in order for strikes to be lawful
- in addition, for strikes affecting health, transport, fire services or education, a requirement for backing from 40% of eligible union members
- provisions "tackling intimidation of non-striking workers during a strike"
- time limits on a mandate following a ballot for industrial action.
It is not clear whether the new Bill will also remove the restrictions that prevent employers from using agency workers to cover for striking employees, a change that the new Business Secretary flagged up in an interview earlier this month.
We can also expect the new Government to tidy up the new rules on zero hours contracts. Back in March, the then Coalition Government published its response to consultation on tackling avoidance of the prohibition on exclusivity terms in zero hours contracts. The consultation responses revealed that avoidance would be relatively simple, so the Government said that regulations to deal with this would come into force at the same time as the ban itself.
The exclusivity ban itself is in the Small Business, Enterprise and Employment Act 2015 and came into force on 26 May. A new section of the Employment Rights Act says that any provision of a zero hours contract (defined as a contract under which a worker undertakes to work conditionally on the employer making work available but without a guarantee of any work) is unenforceable against the worker if it prohibits the worker from doing work under another contract or arrangement, or prohibits it without the employer’s consent. According to the Government's explanatory notes, this applies to existing zero hours contracts as well as those entered into in the future.
But there is no sign as yet of the anti-avoidance rules. According to the consultation response, they were going to include:
- an extension of the prohibition on exclusivity clauses to cover all contracts of employment or workers' contracts under which the individual is not guaranteed a certain level of weekly income; and
- a right for zero hours workers not to suffer detriment on the grounds that they have worked under another contract. As well as compensation for breach for the worker, the existing provisions for tribunals to award financial penalties in cases where employment rights are breached and there are aggravating features would apply.