In this article we look at the Trade Union Act 2016 and what it means in practice.
With strike action by junior doctors occupying the news recently and causing widespread disruption to NHS services, it seems fitting that the new Trade Union Act 2016 will introduce significant changes to Trade Union activities in the workplace.
In anticipation of the General Election on 7 May 2015, the Conservative party published its manifesto suggesting that it would bring an end to “disruptive and undemocratic strike action”. With this in mind, the government announced a series of modernising reforms last year to ensure strikes can only go ahead as a result of a clear and positive democratic mandate from union members: upholding the ability to strike while reducing disruption to millions of people.
After nearly a year of parliamentary debate and amendments, the Trade Union Bill received Royal assent on 4 May 2016 and became the Trade Union Act 2016 (the Act).
The Act is due to be implemented on various dates under statutory instruments which have yet to be confirmed. We expect them to be implemented throughout this year and into next year.
What are the key provisions of the Act?
- All ballots in support of strike or other industrial action must have a turnout of at least 50% of those eligible to vote, as well as a simple majority of those voting in favour.
- In “important public services” union members voting in favour of strike action must constitute at least 40% of those eligible to vote. This is in addition to the 50% requirement in point 1. above.
‘Important public services’ are likely to include:
a. Health services;
b. Education of those aged under 17;
c. Fire services;
d. Transport services;
e. Decommissioning of nuclear installations; and
f. Border security.
- New information requirements have been introduced. The new information requirements are that:
a. the ballot paper must include a clearer description of the trade dispute including what action short of a strike is proposed;
b. those entitled to vote must be informed after the ballot of greater detail relating to the ballot result; and
c. more information must be provided by a union in its annual return to the Certification Officer.
- A 6 month time limit for strike action to take place after a ballot (or 9 months if agreed between the union and employer).
- The notice required to be given by a union to an employer for strike action has been increased from 7 to 14 days (unless 7 days is agreed with the employer).
- There will be an obligation on unions to appoint suitable picket supervisors. The picket supervisor will be a trade union official (or other member familiar with the Code of Practice on picketing) whose name and contact details will need to be provided to the police, with details of where the picketing is taking place. This will mean that picketing is better organised and monitored, with the picket supervisor also obliged to wear something that identifies them as a picket supervisor.
- There are changes to the rules relating to payment of trade union subscriptions (check-off) by union members for public sector workers and some other workers (i.e. those with functions of a public nature and mainly public funded). For these workers employment check-off will only be allowed if the union contributes to the cost of administration and the union member has the option to pay their subscriptions by means other than deduction from their salary (such as direct debit).
- The Certification Officer is given new powers to investigate and take enforcement action where a union breaches its statutory duties. Unions will have to provide annual returns to the Certification Officer which will include details of any industrial action taken, details of the trade dispute, the nature of the industrial action, when the action took place and confirmation that the relevant ballot thresholds have been met. There will be possible financial penalties for unions if they breach their statutory duties.
- Public sector employers will be required to publish information on the facility time taken by union representatives. Facility time is time taken off by representatives of trade unions for union activity. The government has reserved powers to make regulations limiting facility time to a fixed percentage of an employee’s working time.
What does this mean for you or your business?
The Act creates higher hurdles for unions to jump over before a strike, or other industrial action can be legal. It creates a clearer structure and increases accountability of unions. This new legislation may mean that employers see a reduction in disruption to your business by industrial action. If you operate in the “important public services” then there is a higher threshold to be achieved before strike action can be legal.
The 6 month time limit on strike action following a ballot should help to ensure that strike action is always off the back of a recent mandate and not as a result of out of date views of workers. In any event you will receive more notice of an impending strike or other industrial action which should allow you to plan more effectively to cover for absent striking workers.
The new provisions may well cause some difficulty for the unions, especially those less organised. However, the changes may also mean that the unions will work harder to get a suitable mandate and there is a risk that this will lead to a stronger negotiating hand than if they had merely satisfied the old threshold tests.
What do you need to be doing now?
Understanding what unions now have to do in order to engage in legal industrial action will mean that if, once the provisions have been implemented, you feel that a union has acted outside of its powers then you can challenge the validity of such action.
Familiarise yourself with the Act and the changes contained within it, bearing in mind what they mean for your business. Keep an eye out for further articles regarding the implementation of the Act’s provisions over the coming months.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.