01 March 2017

The Trade Union Act is implemented today, but what does that mean for workers and trade unions?

Find below our easy to read guide to the new legislation and what it will mean for industrial relations.

In our Manifesto for Labour Law - 25 recommendations for reform, the principles of which have been adopted by the Labour Party - we call for the full repeal of the Trade Union Act 2016.

Click here to read more about the Manifesto for Labour Law

Ballots:

50% Turnout requirement

From March 01 2017, industrial ballots must attract a 50% turnout in order for their results to be legally valid. For instance, if 100 workers are eligible to vote, and only 49 turnout for the vote, workers cannot take industrial action even if all 49 vote in favour.

40% Support Requirement

From March 01 2017, workers whose role mostly concerns the delivery of "important" public services (including some workers outsourced to private companies) will have to reach a 40% support threshold among all workers eligible to vote, as well as the 50% turnout threshold. This means that if 100 workers are eligible to vote, at least 50 have to vote, and at least 40 of them has to vote in favour. If 50 voted and 39 voted in support, it would still not be legal to take industrial action even thought the vast majority of voters elected for it.

Expected impact of the new laws

Currently, trade unions are restricted to holding postal ballots and are not permitted to ballot their members in the workplace or online. Because it is difficult to gain a high turnout through this particularly cumbersome method of collecting votes, it may be more difficult for unions to take industrial action.

The government is currently awaiting the results of an Independent Review into e-balloting for trade unions, which they agreed to after pressure from opposition parties and the labour movement. The review will look at whether there are any legitimate security issues around e-balloting methods (which are already used for internal elections within the Conservative Party). Even if the review finds that e-balloting is appropriate for trade unions, however, the government has no legal responsibility to allow unions to use it.

Strike action is at an historic low with only 800,000 work days lost per year, compared - for example - to days lost due to work-related accidents and injuries (28.2 million days lost per year). Now, it will be even harder for workers to strike and we can expect these numbers to fall even further.

Strike action is normally employed by unions as a last resort with employers who refuse to provide fair pay and conditions for workers. In the employment relationship, most of the power sits with the employer, as there are more workers able to take jobs than jobs to go around. This means that if there were no laws in the employer's way, there would be nothing to stop them from pitting workers against each other in a race to the bottom on wages and conditions. Unions have the power to take industrial action as part of a collection of laws that seek to redress this power imbalance and thus prevent the exploitation of workers. Strikes act as a bargaining chip at the negotiating table, giving unions the leverage they need to get a fair deal for workers. Because this law makes it more difficult to take strike action, workers may see a lowering of wages and conditions and problems with exploitation - which the government is already investigating through the Taylor Review - could get worse.

Two weeks’ notice to be given to employers of industrial action

Unions must now give employers double the amount of notice of industrial action - two weeks instead of one - except for in cases where the employer agrees to stick to one week's notice.

Expected impact

This provides additional time for employers to prepare to resist the strike or to plan a media campaign against it, thereby potentially protecting itself against the disruptive nature of the action and reducing the leverage unions have at the negotiating table.

No other organisation has to give advance notice of demonstration and there are concerns this sets a dangerous precedent for the restriction of civil protest.

Expiry of mandate for industrial action

Votes in support of industrial action will now become invalid after six months if no action has been taken, or after nine months with the agreement of the employer.

Expected impact

It is suspected this law will lead to longer and messier disputes. It is now in the employer's favour to string unions along until the expiry date of their ballot, preventing them from reaching a point in the negotiations where strike action is deemed necessary, but also failing to reach any resolution. This means that when the ballot becomes invalid, the unions will then have to spend yet more money and resources recasting the ballot and the negotiations may drag on for much longer than in today's disputes.

Union supervision of picketing

Unions must now elect an official supervisor for its pickets, who must give the police their name, contact details and the location of the picket. On the picket itself they must be easily identifiable (such as through wearing an armband), and must carry a letter of authorisation from the union to be shown employers by request.

Expected impact

This law was passed despite the fact Chief Police Officers had been consulted by government and said current legislation is fit for purpose. Without a good justification for this law, it is surmisable that the law was put in place to add additional pressure on unions when they go on strike. There was already a code of conduct in place for picketing, which was well adhered to by unions and had caused no police concern. Now that these are matters of the law, a picket could be declared illegal if any picket supervisor slips up, even in such a small way as forgetting or losing a letter of authorisation.

Public sector organisation must now publish facility time details

Public sector organisations are now required to publish details of the amount of time trade union representatives take on union matters and how much this "cost" to the public sector. However, this "cost" will be described by the union rep's time only and the savings made as a result of a trade union presence will not be deducted. The government also reserves the power to cut facility time for public sector workers.

Expected impact

The information that is published will be imbalanced because there will be no mention of the significant savings made to the public sector through having an organised workforce in which disputes can be more easily resolved through trade union processes. This biased information can then be seized upon by those areas of the press that spread misinformation about the trade union movement in order to reduce public support for unions.

Through the government's reserved powers, it is also possible that trade union presence will be restricted in the public sector.

Restriction on check-off systems

The government originally wanted to ban "check-off": the system through which workers have their union subscriptions deducted from their wages. These systems are particularly preferred among public sector organisations. After wide opposition, the government agreed check-off could stay but it is now restricted so that unions must also provide workers with other means through which to pay their subscriptions (such as direct debit) and unions must pay for the check-off systems themselves.

Opting in by union members to contribute to political funds

Unions must now ensure that new members "opt in", rather than out, of its political fund.

Expected impact

It is expected this will lead to lower funding available for the Labour Party in particular - and therefore greater political leverage to the Conservative Party - but also to other campaigns, such as those against racism and other political concerns that affect the community.

Extra information to be included on the voting paper

Trade unions must now provide additional details of what workers are voting for on the ballot - at the moment some unions give workers the choice between "strike action", "action short of a strike" and "no action". Now, trade unions will have to provide details of what each option entails, including what types of action are "short of a strike", how long the action will take and when, and a summary of the terms negotiated for.

Expected impact of the new laws

There have been concerns around not only the additional cost and resources that must go towards strike ballot papers, but also the potential for this law to perpetuate disputes and unnecessary litigation. During a debate on this matter in the House of Lords, Liberal Democrat peer Lord Oates described this new law as "a lawyers' paradise". Trade unions will need to detail every possible course of action to ensure that whatever action they decide to take goes by the book. Lord Oates went on to say that such action "will ensure that disputes are drawn as widely as possible and that they are as hard to resolve as imaginable".

Information to members about results of the ballot

Unions must now provide information to members about the results of every ballot including: the number of individuals who were entitled to vote in the ballot; the number of votes cast in the ballot; the number of individuals answering “Yes” to the question, or as the case may be, to each question; the number of individuals answering “No” to the question, or as the case may be, to each question; the number of spoiled or otherwise invalid voting papers returned; whether or not the number of votes cast in the ballot is at least 50% of the number of individuals who were entitled to vote in the ballot; and in "important public services" whether or not the number of individuals answering “Yes” to the question (or each question) is at least 40% of the number of individuals who were entitled to vote in the ballot.

Expected impact

This is further red tape that trade unions must comply with, taking up the time and resources of unions. There is no indication of what mandate there was for requiring this level of detail in unions' communications with their members.

Increased requirement for information to Certification Officer

Trade unions must now provide additional information pertaining to industrial action and political expenditure in their annual report to the labour movement regulator the Certification Officer.

Expected impact

Once again this is additional red tape that takes up the resources of unions and there appears to be no firm justification for its necessity.

The Act also includes a clause to allow the Certification Officer the power to investigate any report of rules breached by unions and then fine the union up to £20,000 for any breaches found. This applies even if the complaint comes from a member of the public with no affiliation to the union, even if they have a political or otherwise vexatious reason to complain about a union. The trade unions will have to pay for their own investigation. This could lead to people with anti-union beliefs to deliberately suck unions dry of resources by making vexatious complaints.