Government announces Trade Union Bill

The Trade Union Bill is yet to be published, but today’s government press release puts a little more flesh on the bones.

The government say that the new reforms ensure that “the right to strike is fairly balanced with the right of people to be able to go about their daily lives and work”.  Whether there is a fair balance or not will depend very much on a person’s political outlook. Employment litigation expert Andrew Burns QC reviews the details.

50% turn-out threshold

There is confirmation that the Bill will require a 50% threshold for ballot turn-out for all industrial action in every workplace.  This is unlikely to affect highly unionised industries with a motivated membership where turn-out is normally high, but will make it difficult for workers to exercise their right to strike (said by recent authorities to be a part of the fundamental human freedom of association) in employment where workforces are relatively apathetic towards the industrial dispute.  The unions are likely to challenge the necessity for such a threshold in the UK Courts and ultimately the European Court of Human Rights as being a disproportionate restriction.

40% of workforce support requirement for key sectors

The precise drafting of the additional threshold of at least 40% support in favour of industrial action in the key health, education, fire, transport, border security and energy sectors will be of real interest.  It is likely to make what is already extremely complex and technical legislation even more difficult for employers and unions to find their way through.  It may prove more problematic for unions to mount a human rights challenge against such a threshold in key sectors as the proportionality issue will be more in the government’s favour where essential services are concerned.  Indeed, in a number of other European countries there are already bans upon the right to strike in ‘essential services’ or laws preventing public sector workers from striking.

Additional provisions

The government has announced that the Trade Union Bill will set a 4 month time limit for industrial action so that mandates are always recent, which may not involve a substantial change in practice as many unions already refresh their strike mandate in order to maintain unfair dismissal protection for strikers (which normally expires 12 weeks after the action begins).  The Bill will require a “clear description of the trade dispute and the planned industrial action on the ballot paper, so that all union members are clear what they are voting for”.  This is likely to be an area ripe for disagreements as there are already substantial differences between what the employers say is the ‘real’ dispute (for example, pay) and what the union publicises the strike is about (for example, “safety concerns”).  At the moment the description of the dispute on the ballot paper can be anodyne and uninformative.  But employers may want to challenge a ballot where they suggest the dispute has been misdescribed in the ballot paper and the members misled about what they are voting about.

Agency workers

At present the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevent an employment agency from knowingly supplying agency workers to perform the duties normally performed by a striker.  There is civil and criminal liability for a breach of these regulations and so employers cannot bring in agency workers to cover work during industrial action.   The government proposes to repeal this ban which could render some strikes in some business sectors much less effective if it is straightforward to hire agency workers to cover the work (although such workers may be more expensive and less efficient than the normal workforce).

Trade union facilities

The government also announced “greater scrutiny and controls over taxpayer-funded subsidies to trade unions (‘facility time’) such as full-time trade union representatives” which suggests that they  propose greater restrictions in the public sector upon collective agreements which grant trade union facilities.  Such facilities can provide real benefits for employers if they work well – experienced union representatives can use such time to assist employers in internal proceedings or with health and safety reviews.  The announcement suggests that the government takes the view that this is being abused by unions in the public sector and that scrutiny by the employers themselves whether a collective agreement is being adhered to is insufficient. 

Subscriptions and intimidation

Other reforms include regulating trade union subscriptions where they are partly paid towards political funds and providing extra safeguards to protected strike breakers from intimidation during industrial action.  Providing a practical and workable framework for protection for so called ‘scabs’ is inevitably going to be very difficult to enforce and could be open to interpretation.  One worker’s freedom of expression to try to encourage a colleague not to cross a picket line can very easily be perceived by the other as intimidating and upsetting.  Finding a balance between the two is not going to be an easy task for judges to undertake.

Consultation

The government said that consultations on the proposed introduction of a 40% threshold for important public sectors; reforming and modernising the rules and code of practice on picketing and protests linked to industrial disputes, and for the repeal of a ban on the use of agency workers all open today and will be open until September 2015.

Since this was written, the draft of the Trade Union Bill was published and can be found by clicking here.

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