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Continuing our ‘what to expect in 2017’ theme from last week, it is worth mentioning the controversial Trade Union Act 2016 (TUA).

The Trade Union Bill received Royal Assent in May last year to become the TUA. The TUA has amended several aspects of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The majority of the amendments are not yet in force, but some are expected fairly imminently.

The TUA will protect people from “undemocratic industrial action”, according to the Department for Business, Innovation & Skills.

The headlines over the last couple of months have been dominated by reports of industrial action, mainly affecting the south-east of England. Southern rail and London Underground strikes have made the lives of commuters in that part of the country a misery. Meanwhile, this wave of industrial action threatens to spread northwards, with the RMT union to hold a strike ballot for Northern rail workers. Last month strikes by Post Office workers threatened to ruin Christmas, while a further walkout is expected this week by British Airways cabin-crew over what Unite are calling “poverty pay”.

10 Downing Street blasted the striking workers, with Theresa May’s spokesman stating that “the strikes are wrong and they are causing untold misery to hundreds of thousands” and that those taking industrial action displayed “contempt for ordinary people trying to go about their daily lives”.

While acknowledging that the significant inconvenience caused by industrial action and indeed the potential for damage to business, for many, the Government’s anti-industrial action and by extension anti trade-union rhetoric is difficult to justify. Trade unions have traditionally played a crucial role in protecting the rights and interests of workers, giving them a stronger voice, applying legitimate pressure to employers by various means including, in the last resort, calling upon their members to take lawful collective action and thereby winning fairer conditions at work for ordinary people.

However, the trade union movement has slowly but surely been in decline since the late 1970’s when around 13 million British workers were union members. Today those numbers have halved, largely due to the shrinking of traditional union strongholds, such as heavy industry. Industrial action is now far less commonplace. While few would argue for the unravelling of the reforms to the regulation of industrial action introduced in the 1980’s, to put the issue into perspective, in 1979, more than 29 million working days were lost to industrial action, compared to only 281,000 over the first 10 months of last year. Some may even argue that the decline of trade unions and the reduction in the threat of industrial action is a factor in the deterioration in pay, working conditions and job security which many people have experienced in recent years.

It is, at the very least, questionable then whether there is any need for the TUA, which many view as ideologically motivated and to the potential detriment of the “JAMS” the Government purports to be concerned about. The provisions of the TUA are largely focused on creating additional barriers to industrial action.

The most notable provisions in the TUA are as follows;

  • Section 2: an increase in the ballot threshold generally. Currently, TULRCA provides that industrial action will be unlawful unless at least a simple majority of trade union members who responded to the ballot voted in favour. The TUA will add a further requirement that at least 50% of all eligible members must have voted (in addition to a majority of those who responded being in favour of the action).

  • Section 3: additional ballot threshold for “important public services”. In ballots of workers engaged in “important public services” (which is to be defined, but will be limited to services which fall within the following categories; health services, education of those aged under 17, fire services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel and border security), in addition to the above mentioned requirement that at least 50% of all eligible members must have voted, at least 40% of all those entitled to vote must have voted in favour of the action. Astute readers will note that no such threshold applies in the political realm, such as for the election of MPs or indeed in relation to the outcome of referenda.

  • Section 4: electronic balloting. This is the only substantive section yet in force. It provides for a review of electronic balloting. The Secretary of State is required to commission an independent review on the delivery of secure methods of electronic balloting. The final report is expected to be laid before Parliament, together with the Secretary of State’s response, by the end of this year. In preparing the response, the Secretary of State is required to “consult relevant organisations including professionals from expert associations to seek their advice and recommendations”. This provision was introduced in the House of Lords in order to mitigate against the impact of the Government’s increased ballot thresholds. The fact that ballots currently require to be postal contributes to low voter turnout and electronic balloting is likely to facilitate participation.

  • Section 5: more detailed ballot papers. There will be a new requirement to include in the ballot papers a summary of the matters to which the proposed industrial action relates, the type of industrial action proposed and the period within which the industrial action is expected to take place. It seems fair to suggest that this is sensible reform giving more information to union members about the dispute and to employers about likely timescale of any industrial action.

  • Section 6: information provided on ballot outcome. There will be a new requirement for the trade union to inform all those entitled to vote of the number of individuals who were entitled to vote in the ballot, whether or not the number of votes cast in the ballot was at least 50% of the number of individuals who were entitled to vote and where the additional balloting rules on “important public services” apply (under Section 3, above), whether the number voting for industrial action was at least 40% of all those entitled to vote. This information will also have to be provided to the employer.

  • Section 8: notice of industrial action. There is to be an extension of the minimum period of notice of industrial action that an employer can expect from the current seven days (under TULRCA) to 14 days, unless the employer agrees to seven.

  • Section 9: expiry date for industrial action. A ballot in favour of industrial action will only remain valid for six months from the date of the ballot, unless the employer agrees to extend to nine months. This will ensure that the mandate of the union to call industrial action is current but it has also been suggested that the provision could discourage unions from committing to resolve disputes amicably in order to preserve the possibility of taking action before the validity of the ballot expires.

In addition, the Government has published a consultation seeking views on the removal of the current restrictions on hiring agency staff to perform the duties of striking workers. If this was introduced it would be another significant blow to trade unions’ ability to apply pressure to employers.

The Scottish Government previously opposed the Trade Union Bill and was unsuccessful in its efforts to require the UK government to obtain legislative consent from the Scottish Parliament. This week the Welsh government tabled a bill to overturn the TUA. The Labour-led administration is concerned that the legislation will undermine relations with the public sector. The Welsh local government secretary, Mark Drakeford, said: “We have always said that the Trade Union Act was unnecessary and would lead to more confrontational relationships between employers and workers, undermining rather than supporting public services and the economy.”

Whether that prediction proves to be true or not remains to be seen. We will be keeping an eye on further developments and providing updates on the progress of the TUA as they emerge. In the meantime, for further information on this topic please contact a member of the Stronachs Employment Team.

Rowan Alexander, Solicitor

 

Chambers UK 2018

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