Trade Union Bill – a declaration of war or an end to an outdated regime of industrial relations?

After sweeping to power in the May General Election, and given the Labour Party’s giant lurch to the left of the political spectrum, the present Conservative government has generally sought to take up the centre ground of British politics. Part of this new image for the government comprises being seen as a bulwark to Jeremy Corbyn’s strong and oft-stated commitment to reviving the trade union movement generally.

Against this backdrop, the government has recently announced a number of legislative reforms in the employment and business sectors, including the introduction of a National Living Wage; a drive to increase the number of high quality apprenticeships and changes to immigration law to discourage the misuse and abuse of undocumented workers. Such policies, generally speaking, carry widespread support. However, this cannot necessarily be said for another proposed legislative update: the Trade Union Bill.

Last week, COSLA (the Convention of Scottish Local Authorities) has announced that all 32 Scottish local authorities have declared they would ignore the Bill if passed by parliament. The president of Wales TUC has voiced fears that, if passed, the Bill could spark civil unrest among workers in the principality. Never one to mince his words, the leader of Unite the Union, Len McCluskey, drew a comparison between the Bill and the treatment of trade unionists in Nazi Germany.

But what exactly will the Trade Union Bill change in law to warrant such a political backlash?

Voting thresholds

Currently, a decision to strike or take lesser industrial action relies on members voting in agreement through a postal ballot. All that is required is that a simple majority of members who actually cast their vote doing so in favour of the relevant proposed industrial action.

The Trade Union Bill seeks to lay down more stringent requirements on this otherwise simple existing system:

1. For any proposed industrial action to be adopted, at least a simple majority of all members eligible to vote must agree to it; and
2. Where a majority of those members eligible to vote are employed in “important public services”, 40% of those workers (when viewed of its own sub group) must vote in favour. If this 40% threshold is not met amongst “important public services workers” the proposal will fall, no matter how many workers vote in favour in the non-important public services group.

The rationale behind this change is to prevent situations where industrial action is adopted despite a minority of members even bothering to vote at all. The PCSU – the civil service union – is believed to have never achieved a turnout on a national ballot which would comply with these new thresholds.

Interestingly, some unions have not taken umbrage at the introduction of voting thresholds per se; agreeing that voter apathy is sometimes an issue when deciding on industrial action. By contrast the additional voting requirements for public sector workers have attracted criticism. The definition of important public services is given at Clause 3(2) of the Bill. The definition is comprehensive covering an incredibly broad range of public sector workers. Such a difference between the private and public sector requirements has been a major bone of contention throughout the Bill’s ongoing passage through parliament.

Provision of information on ballot requirements

The amount of information which must be disclosed to members in anticipation of a ballot on industrial action and the extent of information given in respect of proposed action would also change. Ballot papers must now follow a 3 W’s approach:

1. Why the union has balloted its members in respect of industrial action;
2. Whether the member wishes to take part in that action, where industrial action short of striking is contemplated? The paper must give the prospective voter sufficient information as to the form of this lesser type of action; and
3. When the proposed action is to take effect?

Provision of information after a ballot

Presently, unions are subject to reporting requirements detailing: the number of votes cast; the numbers in favour and against the proposed action and the number of spoilt votes.

Clause 5 of the Bill will increase these reporting obligations, to also include:

1. The total number of eligible voters;
2. Whether the 50% voting threshold requirements were complied with;
3. Whether the majority of eligible voters were drawn from the “important public services”;
4. If so, whether at least 40% of those eligible “important public services” members have voted in favour of the relevant industrial action.

As will be noted, there is a high degree of overlap between the new voting thresholds and the new union reporting requirements. Unions are in effect required to publish their adherence with these rules after a ballot has been held and counted – a form of de facto self-certification as to compliance.

Expiration dates and the 14 day notice periods for industrial action

Where action has been lawfully approved by the required number of union members, execution of that action must now occur within four weeks of that decision. The trigger point for this four week period commences from the date the successful ballot was held. Additionally, employers would be entitled to two weeks’ notice of any upcoming industrial action (as opposed to the current 7 day notice requirement).

The basis for this change is to prevent – as does happen – unions “hoarding” decisions to take industrial action. This occurs where a decision to take industrial action is approved, but unions then suspend the proposed industrial action and effectively use that ballot outcome as leverage in any ongoing negotiations. That decision is in effect held over an employer’s head as a sword of Damocles: if the union is still unhappy with the outcome of negotiations, it simply continues ahead with the suspended action.

A legally binding shelf life for industrial action will severely limit unions’ abilities to utilise this leverage and would weaken their position at negotiations in a large number of cases. The dynamic of such negotiations may change: with employers less incentivised to succumb to the pressure of potential industrial action, they may adopt delaying tactics in the hope of pushing any industrial action mandate outwith that four week window of validity.

Statutory supervision of pickets

Currently there are a number of supervisory obligations for unions at picket lines, most of which exist to protect pickets from any subsequent civil action in court. Again, the Trade Union Bill expands on this by upping the extent to which pickets must be supervised and regulated:

1. All pickets require a picket supervisor who must be a union official or member with an adequate understanding of picket regulation;
2. The picket supervisor must take reasonable steps to inform the police of his status as the relevant picket supervisor and his contact details;
3. The picket supervisor is required to identify himself as such and provide documentation to that effect if asked for by a police officer;
4. The picket supervisor must at all times be either in attendance at the picket or able to attend it at short notice;
5. The picket supervisor is required to wear, at all times, an item which identifies him as union supervisor.

Interestingly, the regulatory changes made to pickets by the Bill are similar to those contained within the current ACAS Code of Practice on Picketing. However, by putting these supervisory requirements on a statutory footing, they would become legally binding. The creation of a statutory picket supervisor is intended to ensure pickets conduct themselves reasonably and do not intimidate or obstruct non-striking colleagues.

Use of agency staff as temporary cover during industrial action

Arguably the most controversial change, the Trade Union Bill seeks to revive employers’ ability to “bus in” agency staff to cover periods of disruption caused through industrial action. For the moment, the Conduct of Employment Agencies and Employment Businesses Regulations 2003, Regulation 7 renders such action unlawful (unless the industrial action is itself unlawful). Where employment agencies or businesses fail to comply with this current prohibition, they can be held liable for damages under Regulation 30 of the 2003 Regulations.

The ability for employers to “bus in” agency workers during industrial action will almost certainly radically change the dynamic of industrial relations. As an action of last resort, the right to strike and withhold labour is a significant step for employees to take; symbolic of a strong feeling of dissatisfaction on the part of the employees’ involved. In many workplace negotiations, the disruption caused by strikes or other forms of industrial action serves to “focus the minds” of employers which in turn can lead to a speedier resolution.

The repeal of this prohibition has been held up as the single most regressive element of the Trade Union Bill by many employment experts and commentators.

Conclusion

The Trade Union Bill, if passed (which is expected), represents the biggest shakeup of trade union regulation since the 1980s.

However, taking the Bill as a whole, it does have its positives and negatives. The reality is that trade union membership has been on a steady decline for the last 40 years. Further, there has also been a gradual transfer of many from the public sector into the private sector. Being a public sector employee does not hold the same degree of attraction for many that it once had. For all the negatives of austerity, it has resulted in an increase in people moving into private sector work. While this is not to say that there is no place for unions in the private sector, many trade unions do still focus on primarily public sector issues. Against this backdrop, the continued relevance of unions generally has been questioned by some.

Equally, the need for trade unions to adapt to the times does not automatically justify many of the more troublesome clauses of the Trade Union Bill. Unions are still a bulwark against predatory or otherwise unfair behaviour by employers. Collective action is still appreciated by many, particularly lower paid, workers who genuinely value their ability to receive assistance from their unions.

Unfortunately, it may be those workers who find themselves most impacted by trade union reform.

Contact our Employment Law Solicitors

To discuss any employment law issues you may have, contact our team today using our online contact form or call us on 0141 530 9164.