Attacks on check-off and facility time

Jo Seery looks at the government’s efforts to reduce trade union membership by banning check-off and reducing facility time

WHEN THE Trade Union Bill (now enacted) was first published in July 2015, the government included a provision to ban check-off across the public sector. Check-off is when workers’ union subscriptions are deducted from their pay by their employer who then transfers the money to the union.

Thanks to some effective trade union lobbying, including evidence that removal of check-off would have the biggest impact on the poorest paid workers and employers would lose the financial benefits of check-off, the government was forced to abandon its plan. The fact that many public sector employers also opposed the change serves to show that it was nothing other than an ideological manoeuvre to reduce trade union membership.

Two conditions

The Trade Union Act now provides that relevant public sector employers can deduct union subscriptions from workers’ pay, subject to two conditions:

  • That workers have the option to pay union subscriptions by some other means, such as direct debit
  • That the union makes reasonable payments to the employer to cover the cost of making the deductions, something that many of them already do.

The provision applies to public authorities and bodies that provide functions of a public nature that are wholly or mainly funded from the public purse. The details are to be specified in regulations.

Further proposals

Further regulations will also amend existing legal entitlements containing contracts of employment.

Until then, it is notable that in two recent cases – Hickey -v- Secretary of State for Communities and Local Government; Cavanagh and anor -v- Secretary of State for Work and Pensions – the High Court held that the provision for check-off was incorporated into workers’ contracts of employment and by unilaterally withdrawing it, the departments acted in breach of contract.

Importantly for unions, the High Court held in Cavanagh that the PCS union could thereby enforce check-off arrangements against the department. Whether the same applies in other cases will depend on the terms of individual workers’ contracts of employment.

A cap on facility time

Union representatives have a statutory right to reasonable paid time off to carry out trade union duties, a right that is supplemented by the Acas Code of Practice “Time off for Trade Union Duties and Activities”.

The provisions of the Trade Union Act were precipitated by attacks on trade union facility time from both the Taxpayers Alliance and Conservative MPs. In particular, the Trade Union Bill allowed the government to place a cap on facility time for public sector employers where this was deemed to be “necessary”.

The Act contains two enabling provisions that will allow the government to make regulations to:

  • require public sector employers to publish information about time off taken by trade union representatives to undertake trade union duties and activities
  • limit the amount of paid time off (even if that means overriding statutory and contractual rights).

Information required to be published

The Act sets out the information that public sector employers would be required to publish including:

  • the number of representatives by type (such as shop stewards, union learning reps, health and safety reps etc)
  • the amount employers spend on trade union duties and activities
  • the percentage aggregate amount of facility time taken by union representatives within a specified period broken down by categories of duties or activities.

Provision limiting the amount of paid time off

This provision gives a minister “reserve powers” to make further regulations three years after the regulations relating to information on facility time come into force.

The powers include the ability to introduce a cap on facility time either as a percentage of trade union representatives’ working time or as a percentage of the employer’s pay bill, which represents facility time.

Application of provisions

The provisions will apply to a relevant public sector employer, defined as a public authority as specified in regulations, who has at least one employee who is a relevant union official.

The Act defines the relevant union official as a trade union official, a learning representative and a health and safety representative.

Conclusion

Given the new priorities for the government post Brexit, it is hoped that it will be some time before we see these provisions come into force.