Employment update

Employment law update:

the impact of the Trade Union Act 2016 considered – Part 1

Rebecca Kelly and Natalie Gibson discuss whether the new Act is a threat to good industrial relations or a necessary and timely reform to protect against undemocratic industrial action.¹

About the authors
Rebecca Kelly and Natalie Gibson are senior law lecturers at Huddersÿeld University.

T he Trade Union Act (TUA) 2016 received royal assent on 4 May 2016. At the time of writing, the commencement date is not known but the provisions will be brought in by Statutory Instrument in early course in 2016. The government announcement hailed the range of ‘modernising reforms’ as necessary measures to ensure that strikes can go ahead, but only under a ‘clear and positive democratic mandate from union members’ .² The government certainly believes that the right balance has been reached between the right to strike and reducing disruption. Employment minister Nick Boles said:

These changes will ensure people are only ever disrupted by industrial action when it is supported by a reasonable proportion of union members. The Trade Union Act means the rights of the public to go about their lives are fairly balanced with the members’ ability to strike.

However, the Trades Union Congress (TUC) issued strong and repeated warnings that the bill was ‘very bad and divisive’ and risked upsetting the power balance at work and, thereby, undermining good industrial relations.³ The perceived threats relate to the new measures being overly restrictive, distracting unions from their core work and risking excessive red tape. In response to news of the passing of the bill, the TUC made the unequivocal comment that:

The history books will show that the government’s ÿrst major act of this parliament has been to attack the right to strike – a fundamental British liberty. This legislation ... poses a serious threat to good industrial relations and is completely unnecessary.

Echoing the TUC’s concerns, the union Unite (Britain’s largest trade union) claimed that the completion of the parliamentary stages marked a ‘dark day’ for UK workers and that the government’s campaign has sent a clear ‘message ‘ to the working people by making it harder for them to defend themselves.⁴ It commented that: ‘This is a law to solve a problem that does not exist, and which will do a great disservice to harmonious industrial relations in this country.’

There is no doubt that the bill experienced a somewhat turbulent passing. The process took some time, and the opposition to elements of it across the different parliamentary stages resulted in a number of concessions by the government. For example:

Through an overview of the main changes [under the TUA]... the potentially massive impact becomes apparent

• The ban on employers bringing in agency workers to cover for strikers has been kept in place (a ban that has been in place in the UK since 1973). The TUC had raised concerns relating to the safety implications of inexperienced workers, as well as a fundamental undermining of the very right to strike, reducing the impact of strike action and upsetting the balance of power. 
• The government withdrew plans to ban public sector workers from having their union subscriptions deducted from their wages. Although workers must have the option to pay their trade union subscriptions by another means, and the union must arrange to make a reasonable payment to the employer in respect of its operation of the check-off system.
• Proposed measures requiring unions to publish their intended plans for action during industrial disputes, including the number of people attending a protest or picket and details of the social media campaigns, were not taken forward.
• Plans were dropped for an annual reporting requirement on picketing and/or protest activity undertaken each year.
• The 40% strike ballot threshold will not apply to union members working in ancillary services that support important public services.

Despite these concessions, the reforms included in the TUA remain far-reaching . Through an overview of the main changes, comparison with the current law and consideration of the views of the government and the unions on each, the potentially massive impact becomes apparent. Of course, the true picture will only emerge once the new rules commence, the date for which has not yet been confirmed. It is then whether the TUA’s passing was a dark day, or has indeed helped to shine a light on unions, in line with democratic principles, may be fully assessed.

Key provisions of the TUA
Ballot turnout of at least 50% (section 2)

Industrial action can only go ahead when there has been a ballot turnout of at least 50% of the trade union’s members entitled to vote. This alters the current rules, under which there are no requirements for any minimum level of turnout and is a relatively high threshold for a secret, postal ballot.

In ‘important public services’ , support from at least 40% (section 3)

In specified important public services covering fire, health, education, transport, border security and nuclear decommission sectors, an additional threshold of at least 40% in favour of industrial action is required from all eligible members. It should be noted that the police cannot strike.

In support, the government argues that in an analysis of more than 200 responses to its consultation on ballot thresholds in important public services, it found evidence of public service users being significantly disrupted by strikes when that industrial action was backed only by a small proportion of union members.⁵ For example, a strike in the education sector in 2014, organised by the National Union of Teachers, was supported by only 22% of the membership. A future strike of the same order could, according to the government’s predictions, impact 800,000 working households and cost the economy 600,000 working days. While accepting that strikes should always be a last resort, the TUC has expressed concern that they are sometimes the only way to resolve a dispute and such action can extend to important public services.

Putting together the two requirements, the TUC highlights the substantial impact of the 40% requirement and questions its ‘reasonableness’ as a minimum level of support. The TUC uses the example that, on a 50% turnout, it would require 80% of those voting to support the action. The government argues that where union members feel strongly about live issues, events show that they surpass the thresholds.⁶ It also highlights that, given the predominance of women workers in this sector, there will be a disproportionate gender impact.

Electronic balloting (section 4)

Some of the diÿculties of the new threshold could be mitigated by moving from the complex postal ballot process to a modernised system of electronic voting. Section 4 requires an independent review on the delivery of secure methods of electronic balloting and the publishing of a government response to the review. A piloting scheme is also provided for.

The latter point has been welcomed by the TUC, although it is pushing for the piloting scheme to begin sooner rather than later. It commented that: ‘It must be a case of when – and not if – trade unions are allowed to use modern balloting methods. We will continue to make this case forcibly.7 

Clearer descriptions on the ballot paper (section 5)

Requirements for clearer descriptions of both the trade dispute and the planned industrial action are intended to help ensure that all union members are clear on what it is they are voting for. Currently, members need only be asked whether they support strike action, or action short of strike.

The new rules will require a summary of the issues that are in dispute, sufficient to enable the union member to understand what issues remain unresolved. They require the union to specify the type or types of industrial action that amount to action short of strike, and to provide an indication of the time period during which they are expected to take place. The ‘Explanatory notes’ for the TUA give the following as an example: ‘work to rule October 2016; overtime ban November 2016; and strike action late December 2016.’ There are concerns that this might, by adding to procedural requirements, increase red tape.