20 June 2017

By Gregor Gall, Professor of Industrial Relations, the University of Bradford

The main provisions of the Trade Union Act 2016, concerning new, tougher balloting thresholds, came into force on 01 March 2017. This articles summarises the main findings of the first research (from the Jimmy Reid Foundation) to quantify the impact of the new Act on strikes and industrial action.

In terms of balloting, the Trade Union Act 2016's two key provisions are that a) at least half of eligible union members are required to vote so a minimum turnout is established and b) in a selection of important public services, there will also be the requirement that at least 40% of all those entitled to vote must vote for action (meaning non-voters are treated as 'no' voters). The Trade Union Act 2016's other measures concerning industrial action are reducing mandates' validity from being open ended to six months (unless extended to nine months with the agreement of the affected employer) and increasing the period of notice to employers of action from 7 days to 14 days. A government consultation review of the feasibility of using e-balloting is being conducted and its conclusion and recommendation will be published towards the end of 2017.

Those parts comprising the important public services of health, education, fire, transport, nuclear are now specified as: i) ambulance, accident and emergency, intensive care, psychiatric, obstetric and midwifery services; ii) schools and educational services to those aged under 17; iii) the fire and rescue; iv) border security; v) London bus services, passenger railway services, civil air traffic control services, airport and port security services; and iv) the decommissioning and management of radioactive waste and spent fuel.

So what has happened since 01 March 2017?

Though it is still early days at the moment, the research reports the following:

i) Thresholds reached

Of the ballots conducted since 1 March 2017, for which full figures have been released:

• NUT members in two north London schools voted both by 100% on 86% and 90% turnouts.
• Unite’s British Airways ‘mixed fleet’ cabin crew members voted by 91% on a 69% turnout for strike action.
• EIS FELA members voted by 96% for strike action on a 59% turnout.
• 3,500 Unite BMW members voted 93% for strike action and 97% for industrial action short of strike action on a 72% turnout.
• RMT London Underground Night Tube members - 97% for striking and 98% for IASOS on a 100% turnout.
• RMT London Underground London Bridge members - 92% for striking and 87% for IASOS on a 58% turnout.
• RMT Arriva Traincare members - 96% for striking and 98% for IASOS on a 61% turnout.
• Unite's 1400 Argos members voted 85% voted for strike action on a 73% turnout.

Such few new ballots may reflect less balloting as a result of the choice to limit balloting due to the fear of losing ballots.

ii) Thresholds not reached

Four ballots for strike action and IASOS have been lost:

• RMT London Underground Waterloo - 75% for striking and 94% for IASOS on a 48% turnout.
• RMT Stagecoach South West - 48% for striking and 65% for IASOS on a 48% turnout.
• UNISON’s ballot of Scottish local government workers resulted in a 63% vote in favour of industrial action on a 23% turnout.
• RMT London Underground - 3,743 members were balloted with an 80% vote for strike action and an 87% vote IASOS on a 34% turnout.

In the case of the RMT ballots, a combination of not meeting one or both of the new thresholds took place.

iii) Front loading action

Before and after 01 March 2017, there has been a noticeable tendency for a growing number of cases of unions to call many days of strikes over a much shorter period of time. Examples are EIS (Scottish colleges), Unite (Babcock Marine, DHL Doncaster, BMW, Woolwich Ferry, D B Glass, Newton Abbot Sierra Windows, Paignton, Bostik adhesives), PCS (EHRC, DWP Sheffield Eastern Avenue), and Atomic Weapons Establishment (GMB, Prospect, Unite). In the case of Unite members at Argos distribution centres, they engaged in a two week strike as their stage of first industrial action. There is no reason to suggest that - with the exception of the EIS which has deployed this tactic far in advance of 1 March 2017 in further education colleges - this is not a direct response to i) the longer periods of notice to employers which allow more counter-preparations; and ii) the reduced period of ballot mandates.

iv) Unofficial action

Postal workers (Doncaster, Kilmarnock, Bedforshire/Buckinghamshire, Scarborough), lecturers (SOAS), nuclear power workers (Sellafield), electricians (Crossrail in London) and hospital workers (Royal London) undertook unofficial (unballoted, unsanctioned by their unions) strike action but it was unclear whether the nature of their action was influenced by the Trade Union Act or pre-existing regulation.

v) Ambiguity and caution

Some reports about how unions are acting suggest both ambiguity in understanding and caution amongst unions about when the provisions of the Trade Union Act came into effect and how these relate to pre-existing regulations. Clearly, balloting processes (notification, balloting, ballot result notification) begun after the 01 March 2017 must adhere to the regulations of the Trade Union Act in order to retain immunity in tort as would any industrial action subsequently called on the basis of those ballots. However, the situation is not so clear with regard to i) action being called after 1 March 2017 on the basis of ballots conducted before 01 March; and ii) action being called after 01 March 2017 on the basis of ballots conducted before 01 March and which has been preceded by action before 01 March 2017. For example, Socialist Worker (7 March 2017) reported that UNISON social work members in Kirklees Council undertook a one hour strike to 'keep their ballot live' even though the ballot took place well before 01 March 2017. Socialist Worker (21 March 2017) then reported a strike ballot and a strike were delayed due to the new regulations. In the first case, this did appear to be due to the Trade Union Act but in the second case this was not quite so evident. Meanwhile, Unite's BA's mixed fleet members were reballoted (see above), it would appear, to retain a lawful mandate for action.

So what can be done?

Based upon past experience and what has happened since 01 March 2017, the following suggestions are made in order to equip the union movement to best deal with the Act:

• The relative sparseness of information at this point in time and for the foreseeable future reinforces the need for a central body to act as a ‘clearing house’ so that unions know about their own experience as well as that of other unions’ experiences (whether good or bad).
• Innovations in ‘best practice’ need to be shared across the union movement. These would include lessons about structuring balloting, tactics to increase turnout etc. The means for sharing would include seminars and newsletters. Case studies like those of the EIS-FELA dispute would be useful.
• A commitment from each union is needed to share both the successes and failures regarding balloting as well as the reasons for why balloting has been sanctioned and why balloting has not been sanctioned.
• This role of being a ‘clearing house’ for information and disseminator could be undertaken by the TUC as it did with sharing knowledge and ‘best practice’ when the new union recognition law came into force on 6 June 2000.
• One of the examples of ‘best practice’ to test the water and to raise awareness is for unions to use consultative ballots on industrial action prior to moving to statutory ballots on industrial action.
• Contrasting the fortunes of the EIS (4,606 members across 20 colleges) and UNISON (67,728 members across 32 authorities in thousands of workplace) in Scotland provides some initial support for the suggestion that keeping the number of unions members in the bargaining group to relatively small numbers in relatively few number of locations is helpful.

But, ultimately, the repeal of the Trade Union Act is required along with the establishment of positive rights in law with regard to workers’ rights (especially concerning strikes and industrial action).

This article was originally published in the Huffington Post