Trade Union Bill receives Royal Assent: A breakdown for employers

The Trade Union Bill received Royal Assent yesterday and has now become the Trade Union Act! Its passage through parliament was a turbulent one with the Bill receiving significant criticism from opposing MPs and Peers. As a result, the Government was forced to make a number of concessions. One of these concessions was to abandon proposals to abolish the check-off system (the practice of collecting union subscriptions via employees’ pay). The check-off system has survived with the compromise being that the administrative and financial burden of the check off system will belong to the unions.

In response to pressure from the unions to introduce an e-balloting system, the Government has pledged to commission an independent review and pilot scheme on e-balloting, with a stipulation that the review will be conducted within 6 months of passing the Act. As a result, e-balloting provisions do not feature in the Act.

The key provisions of the Act to be aware of are:

• Strike ballots will require a turnout of 50% of those entitled to vote in order for a strike to go ahead. This is change from the current position in which a strike ballot must have the support of a simple majority of those voting but with no minimum voter turnout.
• For important public services (e.g. health, fire, borders and education), 40% of those entitled to vote must actually vote in favour of strike action. The minimum 50% voter turnout also applies.
• The amount of notice to be given to an employer before taking strike action has doubled from 7 to 14 days.
• Ballot mandates for strike action will automatically expire after six months, or 9 months if the parties agree. This replaces the current rules which stipulate that strike action must be taken within 4-6 weeks of the ballot and members may participate in further indefinite strike action providing that the initial dispute remains live.
• Ballot papers must be more detailed.  Ballot papers must now give details as to when the proposed strike action is to take place and summarise the matters in dispute.
• Picket supervisors must be appointed and must be clearly identifiable at picketing locations.
• Employers in the public sector (and some private sector employers who carry out public functions) will be required to publish information on facility time (e.g. amount of time off for union duties and activities).  Secondary legislation will provide more detail on this.The changes introduced by the Act will inevitably make it more difficult to take strike action. The unions have warned that, in response to the changes, members may resort to increased protests to get their message across. Whether the Act will have a significant impact on the number of strikes remains to be seen but it may be that unions will have to be more strategic when balloting members for strike action, particularly where there is uncertainty surrounding voter turnout or the levels of support.
• Unfortunately, there are still a number of questions left unanswered for employers. For example, the Act is silent on whether employers may use agency workers to provide cover during strikes. The Government has already announced a plan to repeal an earlier Act to allow for this but it is unclear when this will come into effect. Similarly, it is unclear when the Act will be implemented but a staggered implementation is expected as some provisions are likely to take longer to implement than others.
• The Act will introduce  increased powers for Certification Officers enabling them to investigate unions and take action such as issuing penalties for failure to comply with statutory duties.

The changes introduced by the Act will inevitably make it more difficult to take strike action. The unions have warned that, in response to the changes, members may resort to increased protests to get their message across. Whether the Act will have a significant impact on the number of strikes remains to be seen but it may be that unions will have to be more strategic when balloting members for strike action, particularly where there is uncertainty surrounding voter turnout or the levels of support.

Unfortunately, there are still a number of questions left unanswered for employers. For example, the Act is silent on whether employers may use agency workers to provide cover during strikes. The Government has already announced a plan to repeal an earlier Act to allow for this but it is unclear when this will come into effect. Similarly, it is unclear when the Act will be implemented but a staggered implementation is expected as some provisions are likely to take longer to implement than others.

Watch this space for further updates.