17 July 2015 #Employment
This week the Government announced the new Trade Union Bill 2015, which will be highly controversial, including the biggest changes to industrial action law since the 1980s.
Following quickly on the back of the Queen’s speech in May, the Bill extends significantly further than just industrial action ballot thresholds. The proposed changes to votes on union political funds, the amount of notice required for industrial action, the use of agency workers to provide cover during industrial action, changes to picketing laws and the proposed increased powers of scrutiny for the Certification Officer are all major changes and ones which have already brought about an angry response from the unions. UNITE, the biggest union, has already passed a motion (last weekend) in anticipation of the Government’s announcement which will clear the way to a change to the union’s rule book to allow members to take illegal industrial action. This would include industrial action where there is no ballot at all.
The Governments aims are to
There will be three separate initial consultations lasting until 9 September 2015, covering ballot thresholds, hiring agency staff during industrial action and intimidation of non-striking workers. The changes may come into effect next year.
Below is a summary of the changes.
Ballot thresholds and mandates
Under the Government’s proposals, there will be a new 50% participation threshold to all trade union ballots for industrial action. Plus, there will be a new 40% important public services threshold, meaning ballots in those sectors will need the support of at least 40% of those entitled to vote.
The new 40% threshold will apply to six sectors: fire, health, education, transport, border security and nuclear decommissioning. This consultation seeks evidence on who within those sectors should be subject to that threshold.
There has never before been any such thresholds in respect of industrial action in the UK. Ballot thresholds apply in Australia, where a 50% threshold applies. However, legal thresholds on industrial action ballots are rare within the European Union.
There are to be two other key changes in respect of industrial action ballots:
At present, although industrial action must commence within one month (extendable up to eight weeks) from the when the ballot takes place, there is no defined time limit on holding a fresh ballot.
As regards the ballot paper, employers are often surprised to learn that at present, the ballot paper does not have to state what the trade dispute in question is about or what the planned industrial action is. The ballot paper need only ask whether the union member will support take strike action or industrial action short of a strike. The question of what exactly the dispute is over is dealt with outside of the ballot paper itself.
The second proposal here is likely to be the controversial one as unions do not like to openly state before the ballot the precise form of industrial action they propose to take. Firstly, unions prefer to establish the level of support for industrial action before stating what the action will be and secondly they prefer not to give the employers early notice of the type of action to be taken. Hence, it seems that unions will be required to specify the form of action to be called in the case of action short of a strike, i.e. whether it will consist of a work to rule, overtime ban or some other form of action. Plus, they will need to specify the periods within which the industrial action is expected to take place.
Notice of industrial action
Unions are to be required to give the employer at least a fortnight’s notice before the industrial action starts. At present, one week’s notice is required. The intention is to give employers more time to prepare their contingency plans for the industrial action.
Use of agency staff during industrial action/contingency planning
The Government proposes to remove the current restriction on employers hiring agency workers to cover the work of striking employees. At present, it is a criminal offence under the Agency Conduct Regulations 2003 for an employment agency to knowingly supply workers to cover the work of workers taking official industrial action, hence it is likely to be an offence for an employer seek such a supply.
This is going to be another very controversial measure. Using agency workers can be an effective way for an employer to significantly reduce the effect of strike.
Transparency, political funding and oversight of trade unions
All unions are to be required to ask each existing union member whether they wish to pay the political levy and then repeat the question every five years. This is an opt in approach, rather than the current opt out approach where the union membership must vote to opt out of a union political fund. These funds are the main source of funding for the Labour Party.
The certification officer is to be given powers to fine trade unions up to £20,000 for breaches of reporting rules including an annual audit on its protests and pickets. The certification officer will also have power to initiate investigations and will in future be funded by a joint levy of unions and employers.
It is proposed that unlawful or intimidatory picketing should become a criminal as opposed to civil offence and new protections should be available for those workers unwilling to strike. A named official will be required to be available at all times to the police to oversee the picket including the numbers on the line, currently set at six, in an existing code of conduct.
Proposals to ban picket lines of more than six people appear to have been dropped albeit the provisions of the Code of Practice on Picketing recommending a limit to six persons will remain.
The new provisions are picketing are very prescriptive. Specifically, the union must:
In addition, the supervisor must:
Time off for trade union duties for public sector workers
Another controversial measure will be new definition of "facility time" to cover the different types of time off which a union official can take and would give the power for regulations to be made which would require some public sector employers to publish information on how much time union officials spend on facility time. The types of public sector employers affected by the regulations would be determined in future regulations but may include bodies which are not strictly speaking public sector but which are publicly funded in some way.
Can the unions challenge the legality of these changes?
The unions are already threatening to take a lenient view towards unlawful or unofficial strikes under the current legal regime, in response to the proposals. In any event, there is likely to be a hardening of views in employment relations terms.
There will also be arguments as to whether the new balloting restrictions would amount to a breach of Article 11 of the European Convention on Human Rights (ECHR), concerning the right to freedom of association. In turn, there will be arguments that Article 11 is reinforced in preventing restrictions on industrial action by ILO Convention 87. It is these arguments that have been controversial at the ILO in Geneva in recent years, as explained in our article last month.
TUC general secretary Frances O'Grady said the Bill would "make it almost impossible for workers to exercise what is their democratic right and civil liberty".
Ms O'Grady said the changes would enable employers to "stick two fingers up" to workers by bringing in agency staff to break any strikes - and people standing on picket lines would be "subject to arrest".
The CBI welcomed what it called “a modernisation of our outdated industrial relations laws”. Deputy director-general Katja Hall said: “The introduction of thresholds is an important, but fair, step to ensure that strikes have the clear support of the workforce.
“Placing time limits on ballot mandates is an important measure to ensure industrial action is limited to the original dispute and not extended to other matters.”