On 15 July the Government introduced into Parliament the Trade Union Bill trailed in the Queen's Speech to "reform trade unions and protect public services against strikes". A needed "modernisation of our outdated industrial relations laws to better reflect today’s workforce and current workplace practices" (CBI) or "a slippery slope towards worse rights for all" (TUC) and a " brutal assault on the most basic of human rights" (RMT)?
Industrial action ballots
At the moment, provided the union allows those to be called upon to vote, they need only a simple majority in favour to validate the action. This can and has allowed action to be called on a very low turnout with, say, only 10% of the actual membership voting in favour, but binding everyone.
Significant changes in voting requirements in industrial action ballots are proposed which will have a huge impact on the unions concerned, particularly in the key public sectors.
- Introduction of a new minimum turnout threshold of 50% of the electorate.
- Ballots will only sanction action for a limited period of four- months post ballot.
- A clear description of the trade dispute and the planned industrial action will be required to be set out on the ballot paper including the period within which the industrial action is expected to take place.
- In the key health, education, fire, transport, border security/border force and nuclear decommissioning sectors (for which might be substituted "where the big public sector unions are involved") will require an additional threshold of 40% of support from all members eligible to vote to take industrial action. This means required turnout of 50% + of those who can vote AND 40% of those who can (as opposed to who do) vote in support of the action.
Replacement agency workers
- The Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevent an employment business from supplying the employer with agency workers to perform the duties normally performed by a striking worker, or the duties normally performed by any other worker who has been assigned to cover the striking worker.
- The Government plans to remove this restriction. This can be done simply by way of secondary legislation amending the existing 2003 Regulations rather than by inclusion in the Trade Union Bill itself. As such it will not be subject to Parliamentary debate.
Intimidatory behaviour clampdown
- New safeguards to ensure non-striking members of a workforce are able to go about their business without fear of intimidation are to be introduced.
- Some aspects currently contained in the Code of Practice will become a legal requirement. Notably, the required appointment of a 'picket supervisor' whose details must be provided to the police.
At the moment union members not wishing to contribute to the union's 'political fund' must submit a form to opt out of contributing to the 'political fund'. This will be reversed so that union members wishing to contribute to a union's political fund 'opt in' rather than 'opt out'.
The 'opt-in' rather than 'opt-out' system to making political contributions could potentially have a huge impact. The 'opt-out' practice has been around for over a hundred years with the exception of just under a 20-year period in the aftermath of the 1926 General Strike. During the last 'opt-in' period, reversed by the post-war Labour Government in 1946, trade unions' combined political fund contributions nearly halved.
In addition, greater scrutiny and controls over taxpayer-funded subsidies to trade unions (so-called 'facility time'), such as full-time trade union representatives are to be introduced.
There is the possibility of unintended consequences - might the higher ballot hurdles galvanise the unions into greater action, ensuring greater membership engagement with the process on the back of what can be presented as the unions (and the public sector workings they represent) being used as a political soft target?
Will the union movement use this to challenge the current European Court of Human Rights (ECHR) decisions? So far the ECHR has accepted that the current ballot regime is not an impediment on the right to assemble and strike. Will the proposed tighter requirements tip the balance? Will the Government beat the unions to the punch on that if the Human Rights Act is repealed or amended?
The Bill is proceeding through Parliament and no doubt months of very heated Parliamentary debates will follow. The Government has also commenced three public consultations:
- 'Consultation on ballot thresholds in important public services' seeking views on occupations and functions within the key public sectors to be excluded from the 40% approval threshold, i.e. specific ancillary/support roles.
- 'Tackling intimidation of non-striking workers' seeking views on whether additional rules currently contained in Code of Practice should be made legal requirements and further reforms more generally,
- 'Hiring agency staff during strike action' on the repeal of the current ban on employment agencies providing agency workers to replace those taking industrial action.
All three consultations close on 9 September 2015. As regards the removal of the ban on hiring agency staff, the Government proposes to respond setting out the timetable for any reforms within six weeks of the Consultation closing. So, while the passage of the Bill will take some time, the removal of the agency staff ban is likely to be made fairly quickly.