Trade Union Act 2016

Key Points

  • A short summary of the progress of the Trade Union Bill, the accompanying consultations and impact assessments and the final provisions of the Trade Union Act
  • The Trade Union Act received Royal Assent on May 4th 2016 and a commencement date is awaited

Trade Union Bill 2015-2016

In July 2015, the government published the Trade Union Bill 2015-2016. The Bill made a number of proposals, including:

  • Ballot thresholds: at least 50% of all eligible trade union members should have voted in the industrial action ballot
  • A proposed additional threshold for workers in ‘important public services’, where 40% of eligible members must have voted in favour of industrial action
  • Information on voting paper: voting papers to include more detail and to specify what other type of industrial action is proposed if a strike is not proposed
  • Information about ballot results: members should be told about the number of individuals entitled to vote; whether the number of votes cast in the ballot is at least 50% of the number of individuals entitled to vote; where the important public services threshold applies, whether the number voting ‘yes’ is at least 40% of eligible members
  • Picketing: additional requirements for picketing to be lawful.
  • A new definition of ‘facility time’ .

Further details are available in the explanatory memorandum to the Bill: http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0058/en/16058en01.pdf

Various amendments were made in the course of the Bill's progress. For example, the government conceded that check off (the option of paying for union membership direct through salaries) would remain where there is an agreement with an employer to provide check off but subject to the union bearing the costs.

https://hansard.parliament.uk/lords/2016-04-19/debates/16041943000712/TradeUnionBill

In April 2016 the House of Lords voted in favour of certain amendments, including:

  • an independent review of electronic balloting
  • pilot schemes to design the implementation of electronic balloting
  • excluding workers from the new 40% threshold for ballots in important public services if the union reasonably believes that they are not normally engaged in the provision of important public services at the time of the ballot

http://www.parliament.uk/business/news/2016/lords-trade-union-bill/

The Trade Union Act 2016

The Trade Union Act 2016 will not come into force immediately as regulations will be needed to implement some of the provisions. The key changes under the Act are :

Balloting

  • a strike ballot must have a new minimum voter turnout (i.e. that at least 50% of those entitled to vote do so
  • in important public services (including in health, education, transport, border security and fire sectors) an additional threshold of 40% of support to take industrial action from all eligible members must be met for action to be legal. Further regulations will specify the details
  • the ballot voting paper must contain more detailed information
  • notice of industrial action doubles to fourteen days (unless the employer accepts seven days)
  • a ballot mandate will expire after six months (or nine months, with agreement).

Picketing

  • there will be additional requirements when picketing including a requirement for the union to appoint a person to supervise the picketing
  • there will be new powers for the Certification Officer to investigate and take enforcement action against trade unions for breaches of their statutory duties
  • parts of the Code of Practice on Picketing become legally enforceable
  • public sector employers and certain private sector employers must publish facility time information
  • public sector employers and certain private sector employers will only be able to make check-off deductions if the worker has the option to pay its subscriptions by other means and the union makes reasonable payments towards the employers' costs for the deductions (implementation will be delayed for twelve months)
  • there may be future regulations limiting the amount and cost of facility time

There has been no further announcement with regard to the mooted repeal of the ban on the hiring of agency staff to provide cover for striking employees (see Consultations below) .

It is expected that there will be phased implementation of the Act starting from this year. Some changes (such as check off will be delayed until 2017).

Consultations to Accompany the Bill

To accompany the Trade Union Bill 2015/16, the government  published a consultation paper on tackling intimidation of non-striking workers, a consultation on hiring agency staff during strike action: reforming regulation and on what occupations should be included in the 40% important public services ballot threshold. 

Intimidation of non-striking workers

https://www.gov.uk/government/consultations/tackling-intimidation-of-non-striking-workers

The government published its response to this consultation in November 2015.The government stated that it would improve and update the code of practice on picketing to set out the rights and responsibilities of parties involved or affected by industrial disputes. This includes the use of social media and protests. The Trade Union Bill required unions to issue a letter of authorisation to the picket supervisor and the response indicated that the government would table an amendment to the bill to clarify who is entitled to ask for details about this letter. This amendment would clarify that the union’s letter approves the picketing, not the picket supervisor. See now section 10 of the Act

Ballot thresholds in public sector services

The government also consulted on ballot thresholds in important public sector services and published its response in Januaty 2016. The response document sets out which ‘important public sectors’ will be subject to the 40% threshold and states the government will

  • bring forward secondary legislation to define these services.
  • apply the 40% threshold to private sector union members, where they are carrying out a specified important public service
  • require ballots to be run under the 40% threshold rules where a majority of workers involved are carrying out an important public service

See now section 3 of the Trade Union Act. Secondary legislation is awaited.

Hiring agency staff during a strike

From July to September 2015 there was  a consultation seeking views on the impact of removing Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 which prohibits employment businesses from providing agency workers to:

  • cover the duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action
  • cover the work of an employee covering the duties of an employee taking part in a strike or other industrial action

The government wants to remove this regulation to allow employers facing industrial action to hire temporary agency workers from employment businesses to perform some of the functions not being carried out due to the industrial action.

The outcome of the consultation is still pending.

Impact assessments

In January 2016, the government published the following impact assessments on key aspects of the Bill including on union subscription wage deductions; reporting trade union facility time in the public sector and effect on business, public sector and individuals of measures in the Bill.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/493636/BIS-16-70-trade-union-bill-impact-assessment.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/494133/BIS-16-83-trade-union-bill-impact-assessment-prohibition-on-deduction-of-union-subscriptions-from-wages-in-public-sector.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/493638/BIS-16-71-trade-union-bill-impact-assessment-reporting-of-facility-time-in-the-public-sector.pdf