Getting into the act
Neil Todd considers the changes brought about by the Trade Union Act with regard to industrial action and picketing
THE TRADE Union Act 2016, which received royal assent on 5 May, represents the most significant changes to the law on industrial action and picketing in a generation. It has received widespread criticism from opposition MPs, unions, civil liberties’ groups, lawyers and academics.
In seeking to implement a number of Conservative manifesto pledges, it constitutes an unwarranted ideological attack on the internationally recognised rights of unions in the UK.
Before the Act was introduced, unions had to carry out a ballot of eligible union members in accordance with section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992. For industrial action to be lawful, a simple majority of those who cast their vote had to be in favour. This was the only threshold requirement but that will now change.
50 per cent turnout requirement
Section 2 of the Act provides that all industrial action ballots will be subject to the requirement that at least 50 per cent of those entitled to vote in the ballot do so.
This provision will apply to all ballots that open on or after the date on which the legislation comes into force, which is not yet known.
The alleged justification is that “undemocratic” industrial action should not be allowed to ensue and cause substantial disruption when it is only supported by a small mandate. However, as has been widely documented, many members of parliament have been elected on a much lower turnout.
Furthermore, the campaign group Liberty correctly pointed out that the turnout threshold “presumes that those who abstain from voting will always vote against a proposal when there is absolutely no basis for thinking that is the case”.
The implications are self-evident. The problem will be particularly acute in large, diverse workforces, especially where the ballot is aggregated across a number of different employers.
The turnout threshold would have prevented the national day of action in the public sector over pensions in November 2011. The problem is likely to be compounded where the subject matter of the trade dispute is not of universal application across the workforce or in workplaces where the workforce is dispersed as, in these situations, the numbers of those who turn out to vote in a ballot for industrial action is traditionally lower.
Additional 40 per cent support requirement
Section 3 of the Act provides that, in addition to the 50 per cent turnout requirement, all ballots for industrial action in “important public services” will be subject to an additional 40 per cent support requirement. This will require at least 40 per cent of those entitled to vote in the ballot to have voted in favour of the industrial action. It will apply to all ballots that open on or after the date on which the provisions come into force.
“Important public services” will be defined in secondary legislation (thus far only draft regulations have been produced), but will be within health services, education of those aged under 17, fire services, transport services, decommissioning of nuclear installations and management of nuclear waste and spent fuel, and border security.
The secondary legislation is also expected to address which roles within “important public services” are to be subject to the additional 40 per cent support threshold and the position of ballot constituencies where some roles are covered by the additional support threshold and some are not. The government had initially proposed to apply the threshold to those normally engaged in activities “ancillary” to the provision of important public services but that proposition was removed by an amendment in the House of Lords and it will now apply to those “normally engaged” in “important public services”.
Most of the employers responsible for delivering these services will be public sector organisations but it will also impact on private sector employers contracted to provide those services.
There is no precedent for the term “important public services” in either international or UK law and the measures proposed do not accord with the UK’s treaty obligations under the International Labour Organisation constitution or conventions. The impact, as with the 50 per cent turnout requirement, is likely to be significant, particularly in large, diverse workforces where the subject matter of the trade dispute is not of universal application.
One way unions could mitigate the consequences of the imposed threshold requirements would be through the introduction of electronic balloting. This was initially fiercely resisted by the government leading Caroline Lucas (Green MP) to ask the Secretary of State “If it really is about democracy and opening things up, why is he not lifting the ban on unions balloting online and in the workplace, which would be precisely the way to make modern democracy work?”
Further criticism of the government’s position ensued in the House of Lords, which has eventually led to the inclusion of section 4 of the Act. This introduces a requirement for the Secretary of State to commission an independent review of electronic balloting for all industrial action ballots within six months of royal assent.
The Secretary of State is then obliged to consider this report and put before both the House of Commons and House of Lords a response to the report. Therefore, while the Act does not introduce electronic balloting, the issue has not gone away and the Secretary of State will be obliged to consult with relevant organisations, including trade unions, before preparing the response.
Additional information to be provided on the voting paper
Additional information will have to be included on the voting paper as follows:
- A “summary of the matter or matters in issue in the trade dispute”.
- Where the voting paper contains a question about taking part in industrial action short of a strike, “the type or types of industrial action” will have to be specified (either in the question, or elsewhere in the voting paper).
- The “period or periods within which the industrial action or, as the case may be, each type of industrial action is expected to take place”.
These requirements will undoubtedly make the procedural requirements for a union to conduct a lawful ballot even more fraught with difficulty than they already are. In addition, as the sample ballot paper has to be provided to the employer before the ballot begins it means the employer will know about the types of action they are likely to face and when that action will take place.
Additional information about the result of the ballot
The information to be provided to members and employers “as soon as reasonably practicable” after the close of the ballot will also have to include information as to:
- The number of individuals who were entitled to vote in the ballot.
- Whether or not the 50 per cent turnout threshold was satisfied in all ballots.
- In ballots involving members normally engaged in the provision of “important public services”, whether or not the additional 40 per cent support threshold was satisfied.
This is in addition to the information already required by section 231 of the current legislation in relation to information on the result of the ballot. In ballots involving “important public services”, this means that unions are going to need to be able to identify whether individual members are “normally engaged” in “important public services”, as defined in regulations to be published.
Furthermore unions will be required to include details of any industrial action in the reporting period in its annual return to the Certification Officer.
This should include the nature of the trade dispute relating to the industrial action, the type of industrial action, when the industrial action was taken, as well as confirmation about the number of individuals who were entitled to vote in the ballot, the number of votes cast, the number of those who voted yes, the number of those who voted no, the number of spoiled ballot papers, confirmation that the 50 per cent threshold was met, and if applicable, confirmation that the 40 per cent threshold was met.
Two weeks’ notice of industrial action
The period of notice of industrial action the union must give is extended from seven to 14 days.
This increases the length of time from the opening of the ballot until the start of the action and will give employers more time to prepare their legal challenges. However unions will no longer be required to take some action within 28 days of the result of the ballot or within 56 days if the maximum extension has been agreed by the union and the employer.
Expiry of the ballot mandate after six months
The ability of unions to rely on the ballot as a mandate for industrial action will expire at the end of the period of six months beginning with the date of the close of the ballot. That period is capable of extension up to a maximum of nine months. After the expiry of this period, the union will need to re-ballot.
The implications are self-evident as to the timeframe within which a successful outcome will need to be achieved unless the union is to re-ballot. It may be possible to negotiate agreement on the extension of the maximum period of nine months in collective agreements, but this should be confirmed in relation to individual disputes.
As well as the changes to provisions governing industrial action, section 10 of the Act also introduces new requirements in relation to picketing. Under this provision, a union must appoint an official or member to be a picket supervisor who has to be familiar with the code of practice on picketing.
The union must take reasonable steps to inform the police of the name and contact details of the supervisor and the location of the picket line. The picket supervisor must also be present at the picket line or be readily contactable and be in possession of a letter from their union stating that the picketing is approved. The employer, or the employer’s agent, is entitled to see this letter as soon as reasonably practicable.
Furthermore, and probably most distastefully of all, the picket supervisor must wear something to make them readily identifiable.
It is highly unlikely any union could meet this demand through its full-time officials. A failure to comply with these requirements will mean that the picketing is unlawful and a union will not be protected from proceedings which claim that they have induced someone to break their contract or interfered with a person’s performance of a contract.
The Act is, at heart, an outright attack on the trade union movement and its right to organise and induce lawful industrial action. The measures proposed appear not only to be ill-considered but also arguably in breach of UK international obligations, including those arising under the European Convention on Human Rights and those incumbent on the UK by virtue of its membership of the International Labour Organisation, which are not directly affected by a potential Brexit.
Once the Act is implemented unions will need to consider their industrial strategy carefully. As a union remains generally permitted to define the balloting constituency, it will need to do so in a way that both maximises the prospects of satisfying the 50 per cent threshold, and the additional 40 per cent requirement if applicable, and enables a dispute to be pursued in the most advantageous away.
This may involve the targeted balloting of specific workplaces or specific categories of employees, rather than balloting the workforce as a whole, or staggering the ballot so different categories of employees or different workplaces take action at different times.