Two weeks’ notice of any industrial action is to be given to the employer (reducible to seven days’ notice with agreement by the union and the employer). This represents a doubling of the period of notice from previously. Doubling the notice period for strike action to 14 days will, according to the TUC, possibly undermine negotiations.2
A six-month time limit (increasable to nine months with agreement by the union and the employer) for industrial action after the date of the ballot is designed to ensure that the mandate is recent. The members’ agreement will expire automatically after that time-frame . This replaces the current requirement that there must be some industrial action within a period of four to eight weeks. The need to repeat a ballot if the dispute has not been resolved will add to red tape. The Trade Union Act (TUA) received royal assent on 4 May 2016. At the time of writing, the commencement date remains unknown
Additional requirements are inserted for a peaceful picket, with unions required to appoint picket supervisors familiar with the Code of Practice on picketing to oversee the conduct of the picket and act as a single point of contact.3 The supervisor’s name, contact details and the location of the picket must be provided to the police. The picket supervisor should have a letter confirming that the picket is approved by the union.
The TUC expressed its view that existing law already requires union members to comply with tough picketing rules.4 It considers that the new regulations are overly bureaucratic, and expose unions to an increased risk of legal challenges with the financial penalties. Red tape is raised here too.
The government noted that the appointment of trade union oÿcial is included within the Code of Practice on picketing, which most unions already observe. Making the requirement legal is considered an appropriate and proportionate way to prevent intimidation occurring, and ensure that picketing is conducted responsibly, consistently and peacefully. In the consultation on tackling intimidation of nonstriking workers, 45% reported incidents of observed intimidatory behaviour either while on the picket line or more generally as a result of strike action.5
New union members must make an active choice whether to pay into political funds, designed to increase transparency. Previously, such contributions were automatic unless the member opted out.
Section 12 also requires unions to include details of expenditure from political funds in the union’s annual return to the certification officer (The certification officer is responsible for statutory functions relating to trade unions and employers’ associations, who works with the Department for Business, Energy and Industrial Strategy.)
The TUC raised concerns about curtailing unions’ freedom to make decisions on how to use their funds.6
All public sector employers will have to publish information on the cost of time off for union reps and there are powers for the government to restrict the paid time that public sector employers allow union reps to spend away from their usual duties to represent members (known as ‘facility time’ ).
The TUC has concerns that this will restrict public sector employers from investing in good relations with their own employees and having the freedom to decide how they manage the process. There are suggestions this could reduce unions’ ability to represent their members and resolve disputes before they escalate. This could, in turn, reduce efficiency .7
A report by the University of Bradford, based on an analysis of official figures, is cited as evidence that paid time off for union reps improves staff retention, reduces illness and boosts industrial relations.8 Allegations of the changes potentially adding red tape are also raised; however, caps will only be possible after at least three years of research and negotiation with ministers.
As the law stood previously, the certification officer could act on a complaint from a trade union member. On such an application, they could ‘make such enquiries as he sees fit’ , but had no specific investigatory powers outside the investigation of financial affairs and, in the future, duties relating to the register of members. An investigation in relation to financial affairs or in relation to the register of members could also be started without a complaint from a trade union member.
The new rules give the certification officer investigatory powers, such as the power to direct the union to produce documents or the appointment of an inspector whom the union is required to assist, in respect of a wider number of statutory requirements. For example, obligations relating to the use of union funds for political purposes are now included. The rules also allow those powers to be exercised without the need for a complaint from a union member. This means that the certification officer could rely on information received from third parties.
The certification officer also gains new powers to impose financial sanctions if an enforcement order by them, requiring a trade union to take certain steps to remedy a breach of a specified requirement of rule is not complied with. They may also make an order requiring the trade union to pay a financial penalty in place of an enforcement order. There will be a right of appeal on the decision of the certification oÿcer in relation to questions of law and also questions of fact.
Under the current rules, the finance and support services necessary for the performance of the certification oÿcer’s duties are provided for by the Advisory, Conciliation and Arbitration Service, a public body. Under the new rules, a levy may be introduced providing for trade unions and employers’ associations to pay those costs.
The TUC argues that there was no need for these new powers now, and that the costs of compliance with the new red tape (and, in the future, unions funding the regulator) will take money away from the core responsibilities of unions to protect and promote workers’ rights. It also expressed particular concerns about the intrusion to privacy and the relationship of members with their union arising from the power to confiscate membership records and other documentation.9
Reassurances have been sought from the government about the use of the new powers being appropriate. The union Unite commented that:
We will also be holding the minister to his word on the new powers granted to the certiÿcation o›cer. His clear direction ... was that these powers must not be used to impede the day-to-day work of unions, that of protecting their members, because our resources will be tied up dealing with baseless complaints.10
The TUA has changed significantly from its original form. The alterations made in response to the concerns of unions and other interested parties have helped to avoid some of the potential pitfalls. The government has provided clear reasoning behind its drive for change; however, the unions raise genuine concerns about whether the new thresholds will prove too restrictive on the ability to strike, possibly leading to a greater risk of wildcat action, and the potential cost of increased red tape and the risks of legal action. The extent of any problems, and whether the ‘balance’ the government claims to have achieved is a fair one, will become clearer over time. The government is still responding to union concerns, with assurances that caps on public sector ‘facility time’ will be occasional and promises not to allow abuse of the new powers given to the certification oÿcer . If there is a continuation of dialogue, this will clearly help to avoid possible future conflict.