United Kingdom: Tighter statutory regulation of trade union activities approved by Parliament
The Conservative government’s Trade Union Act was passed in May 2016, introducing more stringent rules for strike ballots and industrial action. It also changes the regulations on union political funds, which could reduce the opposition Labour Party’s income. Opposition from unions and the House of Lords forced significant changes to the government’s original proposals.
The Conservative government came into office in May 2015 committed to legislating against ‘undemocratic strike action’, particularly in essential services, and to ensuring that trade unions use a ‘transparent opt-in process’ for contributions to political campaigns and parties funded by members’ subscriptions. The resulting Trade Union Act (PDF) completed its passage through Parliament in May 2016 and is expected to take effect in July.
Key provisions of the legislation
Prior to the Act, the lawfulness of industrial action organised by unions depended on, among other things, gaining majority support in a postal ballot of the members concerned and giving due notice to the employer of the ballot and the commencement of the action. The new legislation toughens these requirements.
- It introduces a new requirement that, in all ballots for industrial action, at least 50% of the trade union members entitled to vote must do so for the ballot to be valid.
- In most situations, it remains the case that a simple majority (more than half) of the votes cast must be in favour of industrial action in order for the action to be lawful. But in disputes where most of the members concerned are engaged in the provision of ‘important public services’, the Act specifies that any industrial action must be supported by at least 40% of all those entitled to vote in a ballot, regardless of how many actually vote. This will affect sectors including health, education, fire services, transport, border security and nuclear energy.
- The legislation sets out new requirements for the level of detail about proposed industrial action that unions must provide in the ballot paper. This must include a summary of the issues that are in dispute and specify the type of any proposed industrial action short of a strike and the periods during which industrial action is to take place.
- The legislation extends, from 7 to 14 days, the period of notice that unions must give to employers of impending industrial action, unless the employer and union(s) agree to seven days’ notice. It provides that a ballot mandate for industrial action expires after six months, though it is extendable up to nine months where agreed between the employer and union(s).
A late amendment to the legislation, reflecting pressure from unions and the House of Lords, provides for an independent review and pilot schemes to develop secure methods of electronic balloting by unions. The government minister responsible must publish a response to the report, having sought advice and recommendations from relevant organisations and experts.
The Act provides that where picketing of a workplace takes place during a dispute, unions must:
- appoint an official or member as the ‘picket supervisor’;
- inform the police of the picket supervisor’s name, where the picketing will be taking place and how to contact the picket supervisor;
- provide the picket supervisor with a letter of approval from the union.
Picket supervisors must be present during picketing and wear something that readily identifies them, or be readily contactable and able to attend at short notice.
Union political funds
The Act makes significant changes to the law governing union political funds. These are separate funds that unions wishing to spend money on party political activities must, by law, set up to finance such expenditure. Unions that are affiliated to a political party (as some are to the Labour Party) draw on their political funds to pay affiliation fees to the party.
Traditionally, union members have automatically contributed to unions’ political funds unless they formally opted out of doing so. But the new legislation will mean that unions will now be able to collect political contributions only from members who submit an ‘opt-in notice’. Crucially, as a result of amendments insisted upon by the House of Lords, this change will apply only after a transition period of at least 12 months and then only to new members who join a union that has a political fund after that date.
The legislation also places requirements on unions to include details of items of political fund expenditure that exceed GBP 2,000 (€2,538 as at 17 May 2016) in their annual returns to the Certification Officer (see below).
Trade union activities in the public sector
The Act enables government ministers to make regulations requiring public sector employers to publish detailed information about paid time off work taken by union representatives. Reserve powers will be available to ministers after a three-year period to make further regulations limiting the extent of such ‘facility time’.
The Act specifies that public sector employers may deduct union subscriptions from employees’ wages (a practice known as ‘check-off’) only if:
- employees have the option to pay union subscriptions by other means;
- the unions concerned cover the costs of check-off to public funds.
The government’s original intention had been to ban check-off in public sector organisations, but the House of Lords opposed this.
The Act establishes new investigatory powers and sanctions available to the Certification Officer, the official body responsible for overseeing compliance by unions and employer associations with statutory administrative responsibilities. It also enables the government to make regulations to finance the Certification Officer through a levy on trade unions and employer associations rather than from public funds.
Social partner and wider reaction
The Confederation of British Industry (CBI) welcomed the legislation, stating: ‘We’re glad the government has brought forward this bill, as the CBI has long called for modernisation of our outdated industrial relations laws to better reflect today’s workforce and current workplace practices. The introduction of thresholds is an important, but fair, step to ensure that strikes have the clear support of the workforce.’
The Trades Union Congress (TUC) strongly opposed the new legislation and campaigned against it throughout its passage through Parliament. TUC General Secretary Frances O’Grady described the legislation as 'an unnecessary attack on workers’ rights and civil liberties that will shift the balance of power in the workplace'. She added that it would also impose heavy bureaucratic and financial demands on unions.
In a joint statement, human rights groups Liberty, Amnesty International and the British Institute of Human Rights said the legislation would ‘hamper people’s basic rights to protest and shift even more power from the employee to the employer'. The Labour Party said it would repeal the Act if it returned to power; other political parties, including the Scottish Nationalist Party and the Liberal Democrats, were also highly critical of the legislation, as were a number of prominent Conservative politicians and non-party members of the House of Lords.
The Act represents a renewed tightening of the statutory regulation of union activities that was a central focus of Conservative governments in the 1980s and 1990s. Key elements of the legislation target trade unions in the public sector, where union membership remains relatively resilient.
Concerns about the fairness of the legislation have not been restricted to the labour movement. The emergence of a cross-party coalition of critics in the House of Lords, alongside effective lobbying by the TUC, resulted in significant defeats for the government’s proposals in the House of Lords and led to crucial changes in the final legislation.
Limiting political-fund rule changes to future new members was a key outcome, since it mitigated the impact in the short term on the funding of the Labour Party. Other important amendments preserve the collection of union subscriptions in the public sector by employers and the use of online balloting methods for union proposals of industrial action, despite the government’s initial insistence on postal ballots only.
How far the final version of the Act will affect public sector trade unionism and union tactics during disputes remains to be seen. But the TUC continues to regard the legislation as unfair and unjustified, despite the substantial concessions the government has been forced to make.