Trade Union (Wales) Act 2017 in force 13th September 2017

Trade Union Act 2016

Key Points

  • A summary of the progress of the Trade Union Bill, the accompanying consultations and impact assessments and the final provisions and implementation of the Trade Union Act
  • The Trade Union Act received Royal Assent on May 4th 2016
  • Section 1 (meaning of “the 1992 Act”) and section 4 (review of electronic balloting) came into force on 3rd November 2016
  • Section 3 (40% support requirement for industrial action ballots in important public services) for the purpose of enabling the exercise of the power to make regulations defining ‘important public services’ and section 11 (opting in by union members to contribute to political funds) for the purpose of enabling the exercise of the power to make regulations under that section, came into force on 5th December 2016
  • Most of the rest of the Act  came into force on 1st  March 2017 

The Trade Union Act 2016

The Trade Union Act 2016 did not come into force immediately as regulations were needed to implement  the provisions. Most of the sections not previouslty in force, came into effect on 1st  March 2017 . The key changes under the Act are :

Balloting

  • Section 2 amends section 226(2)(a)(iia) TULRCA1992 to introduce a turnout threshold. It requires that in all ballots for industrial action, at least 50% of the trade union members entitled to vote must do so in order for the ballot to be valid.
  • Section 3 amends section 226 of the 1992 Act so that a 40% threshold of support from all eligible members must be met for industrial action to be legal in important public services. Under new section 226(2E) the 40% threshold may only apply to ballots for industrial action in important public services in the fire, health, education, transport, border security and nuclear decommissioning sectors. New section 226(2D)  (in force from 5th December 2016 by virtue of The Trade Union Act 2016 (Commencement No. 2) Regulations 2016 gave  the Secretary of State the power to specify which services are in scope by statutory instrument . Draft regulations were published and came into effect from 1 March 2017  (see Regulations below).
  • Section 5 amends section 229 of the 1992 Act to provide that the ballot voting paper must contain more detailed information. The paper must include a summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates; where the voting paper contains a question about taking part in industrial action short of a strike, the type or types of industrial action must be specified (either in the question itself or elsewhere on the voting paper):The voting paper must indicate the period or periods within which the industrial action or, as the case may be, each type of industrial action is expected to take place.”
  • Section 6 amends section 231 of the 1992 Act to provide that information to eligible voters on the outcome of the ballot must inlcude the number of spoiled papers and whether the turnout threshold (introduced by section 2) and, where applicable, the important public services suport theshold (introduced by section 3) have been met
  • Section 7 inserts section 32Z after section 32 in the 1992 Act to provide that details of industrial action must be included in a union's annual return to the Certification Officer.
  • Section 8 amends section 234A of the 1992 Act to provide that notice of industrial action doubles to fourteen days (unless the employer accepts seven days)
  • Section 9 amends section 234 of the 1992 Act to provide that a ballot mandate will expire after six months (or nine months, with agreement). Hence the requirement that industrial action starts within 4 weeks of the ballot (or 8 weeks with employer agreement) is removed but there is now a fixed time limit after which a new ballot is required.

Except as otherwise stated the sections above came into force on 1st March 2017 by virtue of The Trade Union Act 2016 (Commencement No. 3 and Transitional)  Regulations 2017

In November 2016, the government announced an independent review of electronic voting for industrial action ballot. This is required by section 4 of the Act which came into force on 3rd November 2016 by virtue of The Trade Union Act 2016 (Commencement No. 1) Regulations 2016.  Electronic balloting is seen as a way to increase turn-out  but the backcloth to the review are concerns  about the electronic and physical security of e-balloting methods and how to safeguard against worker intimidation.  The review issued a call for evidence in March 2017 with submissions required by 14 July 2017. The outcome is awaited

The Government has published an updated Code of Practice on Industrial action ballots and notice to employers to reflect the provisions of the Act .

Picketing

A revised Code of Practice on Picketing has been published to reflect the  provisions of the Act .

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). 

Facility time and Check-off

  • public sector employers must publish facility time information (section 13 which inserts section 172A into the1992 Act). Facility time is defined in section 172A (8).This section came into force on 1st March 2017 by virtue of The Trade Union Act 2016 (Commencement No. 3 and Transitional)  Regulations 2017 and The Trade Union (Facility Time Publication Requirements) Regulations 2017 came into force on 1 April 2017. The purpose of these provisions is to promote transparency and public scrutiny of facility time.
  • there may be future regulations limiting the amount and cost of facility time (section14 which inserts section 172B into the1992 Act)
  • public 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 (section 15 which inserts section 1116B into the1992 Act). Section 15 came into force on 1st March 2017 for the purpose of making regulations under that section of the 1992 act. Draft regulations have been published stated to be coming into force in March 2018

Funds for political objectives

Section 11 which amends sections 84 and 85 of the 1992 Act, imposes opting in requirements before contributions from members can be made to a union’s political fund. The section came into force for the purpose of enabling the exercise of the power to make regulations under that section on 5th December 2016 by virtue of The Trade Union Act 2016 (Commencement No. 2) Regulations 2016 

The Trade Union Act 2016 (Commencement No. 3 and Transitional)  Regulations 2017 brought section 11 into force from 1st  March 2017 and provides for a 12 month transition period.

Financial penalties on unions and employer associations for non-compliance with statutory requirements.

Section 19  gives the Certification Officer the power to impose financial penalties on unions and employer associations for non-compliance with statutory requirements. The government  published draft regulations and launched a consultation which closed 21st May 2017 (outcome awaited), in particular as to whether:

  • the proposed approach to set the level of financial penalty by type of obligation breached is appropriate
  • the maximum levels by type of obligation breached are appropriatethe proposal to reduce the penalty maxima by 50% for unions and employer associations whose membership size is less than 100,000 is appropriate 

Wales

On 19th July 2017 the Welsh government passed Trade Union (Wales) Act  to exclude certain provisions of the Trade Union and Labour Relations (Consolidation) Act 1992, inserted by the Trade Union Act 2016, from applying to 'devolved Welsh authorities' (as defined in section 4 of the Wales Act 2017.). Sections not to be applied include:

  • the restriction on deduction of union subscriptions from wages (section 15 of the UK TU Act - see section above on Facility time and Check-off)
  • publication requirements in relation to facility time  and the potential cap  on spend or time allowed (section 13 and 14 of the UK TU Act - see section above on Facility time and Check-off) 
  • the 40% threshold of support from all eligible members required for industrial action to be legal in important public services. 

The Bill also protects the position where agency workers are prevented from covering the work of public sector employees during industrial action, in the event the UK Government acts to remove that protection (which is currently in regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003).

Progress of the Act can be viewed here

The Trade Union (Wales) Act 2017 received Royal Assent on 7 September and came into force on 13 September 2017 by virtue of  the Trade Union (Wales) Act 2017 (Commencement) Order 2017

A useful summary of the The Trade Union (Wales) Act 2017 including impact assessments, published by the National Assembly for Wales Research Service is found here

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 and the draft revised Code of Practice on Picketing

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. and Regulations below

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

Regulations

Important Public Services

This instruments below set out which important public services in the health, education, fire, transport and border security sectors will be specified in relation to the 40% balloting threshold. These draft regulations are due to come into effect from 1 March 2017 or, if later, 21 days after the date on which the regulations are made.

http://www.legislation.gov.uk/ukdsi/2017/9780111151969/contents

http://www.legislation.gov.uk/ukdsi/2017/9780111151952/contents

http://www.legislation.gov.uk/ukdsi/2017/9780111151976/contents

http://www.legislation.gov.uk/ukdsi/2017/9780111151945/contents

http://www.legislation.gov.uk/ukdsi/2017/9780111151938/contents

Guidance including advice for unions on applying the 40% threshold in practice, and  examples of workers covered in each sector in the regulations is found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/583582/Annex_A_Draft_40__guidance.pdf

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