There is something about the trade union movement that has always engendered strong feelings in this country (both for and against) and you don’t need to read the papers often to see how much interest there inevitably is in strike action (the junior doctors and Southern trains, being two very high profile and recent examples).
Latest figures from the Office for National Statistics show that the overall number of trade union members has increased by 36,000 to 6.49 million people in 2016. The figures also reveal that the number of trade union members in private sector employment has increased for the fifth consecutive year. Particular sectors showing growth in trade union membership are transport, construction, logistics and communication.
The Conservative party made it an election manifesto promise that they would dismantle what it considered to be ‘disruptive and undemocratic strike action’. There probably isn’t much argument that they inherited the most employee/trade union friendly laws we have ever had in this country introduced by the successive Labour governments of the 90’s onwards.
Therefore, to follow up on their manifesto commitment, the government has introduced the Trade Union Act 2016. It actually came into force in a piecemeal fashion but the majority came into effect on 1 March 2017. Depending on whose rhetoric you believe, this is either the ‘biggest shake-up of trade union law for 30 years’ or a ‘hugely reduced version of a supposed flagship piece of legislation.’
Either way, there are changes and if you have a trade union relationship, you will want to be aware of them. These can be summarised as follows:
1. It will now be much harder for a trade union to achieve a legal vote for strike action. Before 1 March 2017, a trade union wanting to take strike action would have to achieve a simple majority from its members who actually voted. A trade union will now have to show that at least 50% of those eligible to vote, did actually vote on the ballot. This is easier to explain with figures. Pre 1 March, say a manufacturing firm has 600 union members. In a ballot on industrial action – if only 100 members actually bothered to vote – then as long 51 voted in favour, there could be lawful strike action. Post 1 March, at least 300 members will now have to vote and in order to get a vote to support strike action, 151 of those would have to vote in favour (a simple majority).
2. It is going to be even harder for a trade union to achieve a legal vote for strike action in certain ‘key’ sectors. These are health, education for those under 17, fire, public transport, border security (and decommissioning of nuclear stations). Here the trade unionwill not only have to show that 50% of those eligible to vote did actually vote, BUT also that 40% of those eligible to vote did actually vote in favour. In my example above, here the trade union will have to show that at least 300 members voted AND that of them, at least 240 voted in favour.
The government’s argument for both changes, which do interfere with human rights around freedom of association, are that to have these minimum figures means that any legal strike action will have democratic support and legitimacy. Either way, there is no doubt that trade unions will have to work harder to ensure that as many members vote in future industrial action ballots and they will surely be hoping that the government’s current consultation on the use of ‘e-balloting’, will make it much easier to engage a social media friendly workforce rather than the current old-fashioned postal vote system.
3. It will be harder for a trade union to hold the threat of strike action over an employer. Previously, provided that industrial action was started within four weeks of the ballot (or a longer period agreed by the union and employer which did not exceed eight weeks) there was nothing to prevent a union from suspending and restarting action in reliance on the original ballot, provided that it was the same industrial action.There was no fixed end point by which action ceased to be supported by the original ballot. The government has put an end to this and provided that the maximum amount of time during which a ballot stays ‘valid’, will now be 6 months. Once that has passed, if there is a still a dispute between the employer and employees, the trade union will have to ballot again (which as you can imagine is a time-consuming process and the employees might not be so willing to support further strike action six months down the line).
4. The Trade Union Act 2016 contains further provisions concerning the identification of picket leaders during strike action, stricter information requirements for the ballot paper, and alterations to the checking off system for the collection of trade union dues.
In addition…the government promised that it would abolish what it described as the ‘nonsensical restriction’ law that currently says an employer is not allowed to use agency workers to replace staff who are on strike. As you can imagine, this does severely hamper what service an employer can provide if they are subject to strike action and does give more power to the trade union as it makes the strike that bit more effective. The government is still consulting on this point. The Trades Union Congress claims that this has been quietly kicked into the long grass. I am not so sure – so watch this space.
Come and hear from the experts
We think that that any business who works with a trade union can benefit from a positive working relationship and that the best way to do this is to fully understand the law that relates to trade unions, its effects and limitations. Our specialist team of trade union experts here at Menzies Law regularly advise organisations on trade union issues. We’re here to help give you the benefit of our experience. If you fancy a chat over a coffee please contact Luke Menzies (call 0117 325 0921 or email Luke).
With this in mind, Menzies Law will be launching an invitation-only event, to take place on 8 June, for senior HR professionals, at which we will explore these areas in detail. To register your interest in receiving an invitation to our exclusive event, please email Vikki Smith on firstname.lastname@example.org.