The Trade Union Act 2016 - Library - Prospect

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May 13, 2016 - Summary of the Act. This briefing updates our earlier ones on the Bill. It sets out some of the main prov
The Trade Union Act 2016 The invidious Trade Union Bill has now received royal assent. The Act represents a massive attack on workers and their unions. The press attention has largely been on new thresholds for industrial action balloting which will seriously inhibit strike action, but there are a number of other changes in the Act that will also have significant detrimental effects on unions and their members. We do not yet have details of the commencement date and many of the provisions will come into force through secondary legislation. We will update this briefing further when there is more detail on the timing and details. Summary of the Act This briefing updates our earlier ones on the Bill. It sets out some of the main provisions of the new Act. The key points to note are:        

A new requirement that there must be a 50% turnout in industrial action ballots, along with a majority voting in favour for action to be lawful An additional test for industrial action ballots in ‘important public services’, where 40% of those entitled to vote must vote in favour of action being taken More detailed information will be required on the ballot paper for industrial action and the validity of the ballot will be time limited Check off in the public sector will only be allowed when the employer agrees and the union pays the administration costs New caps on facility time in the public sector, although not to be implemented for three years and following further review Restrictions on union pickets and protests New members to the union will have to positively opt in to the political fund (rather than having a right to opt out as previously) Increased requirements for reporting by unions to the Certification Officer

These are covered in more detail below.

The progress of the Bill While we now have the Act it is still worth considering the Bill’s chequered progress and the changes that have been made along the way. 1 Latest revision of this document: https://library.prospect.org.uk/id/2016/00210 This revision: https://library.prospect.org.uk/id/2016/00210/2016-05-13

The Government published the Bill in July 2015. It included higher thresholds for industrial action, limiting facility time in the public sector, restricting pickets and protests, attacking the political fund, and tighter controls on unions’ administration. In October a further amendment by the Government included a complete ban on check off in the public sector. There have been a number of defeats for the Government in the Lords and several major concessions wrung out of the Government during the progress of the Bill. We now see a greatly changed piece of legislation, which will come into force later this year. Some of the provisions are dependent on further regulations, so we are still not entirely sure of the final outcome on all points. The Bill is certainly better than it started out. These changes are due to the concerted efforts of unions, the TUC, the opposition, and many Lords of all parties and cross benchers. France O’Grady’s blog for touchstone following the developments in the Commons at the end of April summed up the changes: “The government has to date: 

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DROPPED extreme measures to restrict protest, such as giving employers detailed plans for pickets and social media campaigns two weeks in advance, or making everyone on a picket line show their personal data to the police, employers or anyone who asked to see it. SCALED BACK the double threshold for strike ballots in “important public services”, to avoid capturing hundreds of thousands of ancillary workers. ABANDONED plans to ban union subscriptions via payroll (check-off), provided the union pays payment processing costs (as many already do). CONCEDED safeguards against politicisation of the role of the union regulator (Certification Officer) and reduced its costs to unions. WATERED DOWN plans to restrict union political funds. Changes will no longer apply to existing members, and the cost and effort of new requirements will be much reduced. AGREED TO a review of letting unions use online methods for strike ballots. This would help increase turnouts, as we know postal balloting suppresses them. ADDED SAFEGUARDS to a new reserve power to cap union facility time. This will happen now only after at least 3 years of research and negotiation with employers.”

Those developments followed earlier crucial stages: On 16 March the Lords defeated the Government on three specific areas of the Bill; e balloting, facility time, and the political fund (see below). On 19 April in the Lords the Government announced a significant concession in respect of check off, when they accepted amendments that check off can be continued where the employer agrees and the union pays for the administration. The Government also accepted amendments to the new role for the Certification Officer.

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The TUC, in February reported a leaked ministerial letter, which, shows the Government expected the House of Lords to defeat "flagship" parts of the Bill. The letter from Nick Boles proposed a number of concessions to 'ease handling of the Bill in the House of Lords'. The changes included:  

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A review to consider the use of e-ballots for industrial action. Further consultation in Scotland and Wales on a number of potentially devolved issues. These include; ballot thresholds, facility time and check off in the public sector. The Minister recognises they have a very weak case for trying to push the Bill through in Wales. Removing the increase in the notice period for industrial action from seven days to 14 days, (but the Act only allows this where the employer agrees). Increasing the time a ballot is valid from four months to six months, with further extensions of three months where agreed. Deleting the need for a picket supervisor to wear an armband and badge.

We now have a significantly different Act to the Bill which started off last year. These improvements have been the result of excellent lobbying work by unions and individual union members, and challenges from MPs and Lords across the political spectrum. However whilst these changes are extremely welcome, they do not go far enough. Unions will be looking at legal challenges and campaigning for future changes. There will be more lobbying to be done the detailed regulations as they become known. There have been three Government consultations on aspects of the Bill, which Prospect has responded to and these are referred to below.

Industrial Action The Act introduces a number of changes to the law on industrial action. These will create even higher hurdles for unions and restrict the ability of members to take action. Unions are already under exceptionally onerous rules in conducting a legal strike ballot, providing enormous scope for employers to legally challenge the validity of ballots, putting workers and unions at risk. We believe the further restrictions are wholly unnecessary. The changes introduced by the Act are: 

A new test requiring there to be a 50% turnout in ballots along with a majority of those voting in favour (currently lawful industrial action requires a simple majority).



Further restrictions limiting strike action in ‘important public services’ where in addition to the 50% turnout rule, 40% of those entitled to vote must vote in favour of the action. The Act provides for regulations to be laid to specify certain ‘important public services’ limited to health, education of those aged under 17, fire, transport,

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border security, and originally decommissioning of nuclear installations and management of radioactive waste and spent fuel, and (see below for more on this). 

The ballot paper will need to include; o o o

a summary of the issue of the trade dispute (this was originally going to be a ‘reasonably detailed indication’ of the issue) the proposed action short of a strike that members will be called to take, and the period, when it is expected that, the action will take place.



The employer must be given 14 days’ notice of industrial action (unless the union and employer agree to 7 days’ notice). This doubles the existing requirement.



The result of the ballot to be given to the employer (and members) will need to include the number who were entitled to vote and whether or not it met the new thresholds (this could cause additional scope for the employer to challenge the validity of the ballot notice).



The validity of a ballot will be time limited. Originally the Bill said it would be 4 months from the date of the ballot, but it is now to be 6 months, with a further option of an additional three months by agreement.

It is the thresholds that have been the focus in the press coverage, but many of the other changes could be just as damaging. Taken as a whole, with the existing extremely restrictive rules on balloting, it is feared that these new provisions will significantly limit the ability of unions to take lawful action and create unnecessary additional burdens.

Ballot thresholds in public services Prospect responded to the Government consultation on ballot thresholds in important public services in September 2015. We argued strongly that the thresholds were wholly unnecessary and an attack on the right to strike. See our response at https://library.prospect.org.uk//download/2015/01075 The Government issued their reply to the consultation, including draft regulations, in January 2016. The regulations provide that the new 40% rule will apply to fire-fighting services, critical health care, education (for 5-16 year olds), transport (railways, tubes, and trams, London bus services, air traffic control, airport and port security services) and border security. The draft regulations do not at this stage include nuclear decommissioning. Originally it was intended that the 40% rule would apply to ‘ancillary workers’ within these services, but the consultation outcome document stated that this will not be taken forward. The Government has instead declared that the 40% rule will apply where 'a majority of workers' are in the public service definition and goes on to say the rule will only apply where 'the main focus of proposed strike action will take place in important public service'. So there is a real degree of uncertainty as to how the rule will apply, which will create a lack of clarity and potentially additional scope for employers to challenge the lawfulness of ballots. 4

E-Ballots Prospect, along with other unions, always seeks to ensure that ballots are conducted fairly and that there is as great as possible participation by members. For this reason we have supported the TUC’s calls for electronic balloting to be allowed in addition to the existing postal voting. The Government have been resisting this call and it is not included in the Act. The House of Lords voted, by a majority of 139, on 16 March to allow an independent review of electronic balloting on industrial action. On 27 April the Government agreed to the review.

Agency workers & industrial action Currently it is unlawful for employers to recruit agency workers to cover the jobs of striking workers, but in addition to the other restrictions on the right to strike in the Bill, the Government was originally intending to repeal these provisions. This would allow employers to recruit short term agency cover to replace jobs of striking workers. In Prospect’s response to the Government consultation on the potential repeal we stated the proposal could lead to significant health and safety risks, undermine industrial relations and may lead to escalation and prolonging of legitimate action. See our response at https://library.prospect.org.uk//download/2015/01074 The Government has not issued a reply to the consultation exercise, so it is not clear whether the provisions will be repealed. But the issue is not included in the Act.

Picketing & protests The Act contains statutory provisions on the union supervision of picketing. These partly mirror the existing code of practice. However they go further by making these provisions mandatory. A failure to comply with these new statutory procedures could lead to the union and members’ loss of protection against legal proceedings for inducing breach of contract. Particularly the Act requires a picket supervisor, who would need a letter of authorisation from the union, which would have to be provided to the employer on request. The Bill had proposed that it would be necessary for the picket supervisor to be identified by having to wear an armband or badge. There has been a lot of criticism of this and this has been dropped by the Government. But there is still a requirement that they must wear something that readily identifies them as the picket superviser. The Bill also intended that unions would need to publish their plans for pickets and protests in advance. There was particularly strong opposition to these proposals, and the Government’s response to the consultation (published in November) states this will not be required under the Act. However they will be ‘updating’ the Code of Practice on picketing to deal with the use of social media.

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In our response to the consultation on this issue we stated there is absolutely no need to create further restrictions on picketing or protests. We do not consider there is any evidence for the need for tougher enforcement provisions. Our consultation response is here https://library.prospect.org.uk//download/2015/01076

Ban on check off Check off, deduction of union subscriptions from wages, has already been removed from much of the civil service, but following an amendment in October 2015, the Act would have banned check off in the whole of the public sector. It defines a ‘relevant public sector employer’ as those specified in the regulations, which would include the civil service, local authorities and education authorities. But it also states that the Minister may include a body, which is not a public authority, but “has functions of a public nature and is funded wholly or partly from public funds.” This could encompass a large number of private sector employers who provide a public service following privatisation or outsourcing. However following amendments from the Lords and much pressure from unions the Government has accepted that there will not be a blanket ban. Check-off will still be available where the employer agrees to it and where the union is prepared to pay the administration costs. This will make an enormous difference in local authorities, the health service and education sectors, so it is extremely welcome news. It is clear that banning check off was a further wholly unjustified attack on unions. The Government had not produced any evidence that it is the costly burden they claim. In fact the costs of administering check off are minimal and many employers, in the public and private sector, would be happy to continue existing arrangements. This has eventually been recognised by the Government. In the civil service and central government functions where the ban on check off has already been imposed, the new concession arrives too late to make a difference. However Prospect will be arguing vigorously that employers across the sector who have not yet stopped checkoff should not now do so. It is though still extremely important that all Prospect members in the public sector switch from check off to direct debit. See the Prospect video or go to www.prospect.org.uk/dd for more information on making the switch.

Facility time in the public sector The Act provides for regulations to be made to require ‘relevant public sector employers’ to publish information relating to the number of employees who are union officials, the amount of facility time and the cost of the facility time. This could include not only core departments and agencies in the civil service, but also non-departmental public bodies, local government, emergency services and Transport for London. 6

There are also new reserve powers in the Act (i.e. that can be introduced by regulations at a later date) enabling a Minister, having regard to the information published, to limit the amount of facility time to a percentage of the union official’s working time. Or alternatively for the regulations to cap the cost of facility time to a percentage of the overall pay bill. This was rejected by the Lords on 16 March, when they voted with a majority of 88 to remove the power to cap facility time through regulations. The Government on 27 April, while not agreeing to remove the powers, did accept that this would not be introduced within the six months originally planned, but instead it would not happen for at least three years, following further research and negotiation. The Lords accepted this position on 3 May, so the powers to limit facility time remain in the Act but will not be introduced for three years.

Political Fund In an attack on union funding, the Bill introduced new rules on members being required to opt in to payment of the political fund part of their subscriptions, rather than the existing requirement in Great Britain of giving members the opportunity to opt out if they wish. (The position in Northern Ireland is already that members must expressly opt in). The ‘opt in’ would need to be renewed every five years. This has been presented very much as a limitation on unions’ ability to fund party political activities and donate to parties. However the political fund is also used to fund other activities that may be held to be ‘political’. For example, in Prospect, a campaign against a Government decision to privatise a part of the public sector, where Prospect members work, may need to be funded from the political fund. The Lords in debate argued that this provision should not be agreed, because it would be an undemocratic attack on funding of a political party which is wholly one sided. They voted on 16 March (by 320 to 172) to significantly limit the proposed opt in provisions by only applying it to new members and not existing members. This amendment was accepted by the Government. These provisions will not apply for twelve months after the provision comes into force following further consultation and regulations. The Act provides that unions must inform members of their right to opt out of the political fund every year, although earlier plans to require members to renew their opt in every five years have been dropped.

Annual returns and powers of the Certification Officer There will be new requirements placed on the union’s annual return to the certification officer. In addition to the existing provisions unions will need to report on: 

Political fund expenditure of over £2,000 in total, and

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Details of any industrial action taken during the reporting period (including the nature of the dispute, the type of action, when action was taken, and confirmation that the new thresholds have been met).

The Certification Officer is to be given new investigatory powers into unions and the ability to fine unions up to £20,000 for a breach of the new reporting procedures. However the Government has conceded safeguards to the independence of the CO. Additionally the Act allows for regulations to require unions (and employers’ associations) to pay a levy to the Certification Officer, however the detail of this is not wholly clear yet, but the Government has stepped back from some of the earlier proposals on this. Under the new rules, not only are the unions under greater scrutiny from the Certification Officer, but would also have to pay for these additional burdens. It should be noted that already unions are highly regulated.

Scotland, Wales & Northern Ireland The Act makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992. This means that the provisions would apply in England, Wales & Scotland, but not to Northern Ireland. The Minister for Employment and Learning in Northern Ireland has said “I do not believe that there is a case for winding back the clock in terms of trade union reform or that such regression would also be supported by the Executive and the Assembly. Instead, the way forward in Northern Ireland lies in building stronger and more constructive relationships between government, business and trade unions.” The Government originally intended that the Bill should apply in its entirety to Wales and Scotland however this is no longer at all clear. The Welsh Assembly has formally voted that the Bill should not be given legislative consent and the Scottish Parliament has also come out against the Bill. In the letter from Nick Boles (referred to above) it is clear that the Government has had legal advice which states that they would have a ‘very weak’ case for trying to implement several provisions of the Bill in Wales, and whilst the legal position is less clear cut in Scotland, they recognise the difficulty of making exceptions only for Wales. The position since then has changed with several general concessions made before the final Act received royal assent. The Government had announced that there will be further consultation in Scotland and Wales on a number of the potentially devolved issues, these include; ballot thresholds, facility time and check off in the public sector. So it is not totally clear what the position is in these areas. This update only provides a short summary of the provisions of the Act, which can be seen in full at http://bit.ly/1HuqyyF Marion Scovell 13 May 2016 8