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The Trade Union Act 2016

Stuart Chamberlain, employment law author, looks in detail at the upcoming provisions of the Trade Union Act 2016.

Introduction

The Trade Union Act 2016 (2016 Act) received Royal Assent on 4 May 2016. Its intention is to give effect to commitments made in the 2015 Conservative Party general election manifesto. The Queen’s Speech on 25 May 2015 announced that the Government would introduce legislation “to reform trade unions and to protect essential public services against strikes.”

As a result of criticism in both the Lords and the Commons, a number of amendments and withdrawals were made to the legislation in order to secure its passage through Parliament.

The provisions of the 2016 Act have yet to be implemented. The legislation is likely to be introduced in stages in 2017. At the time of writing this bulletin the Government has published a number of draft regulations — specifically a list of the “important public services” covered by special requirements in industrial balloting and arrangements for political funds and laid them before Parliament. They will come into force on 1 March 2017 or, if Parliament has not approved them by that date, 21 days after approval. The content of these draft regulations has been incorporated into the bulletin. The key proposals in the 2016 Act are set out in the next section.

This bulletin is an updated version of the one produced in December 2015 on the Trade Union Bill. Each section of this bulletin considers the current legal position for the particular topic and the changes introduced by the relevant provisions of the 2016 Act — and accompanying regulations, where they have been issued. It ends with a discussion of their possible impact in the workplace.

Appendix 1 considers the issue of the right to strike in European law.

Trade Union Act 2016: Summary of Main Provisions

The key provisions are set out below. Section 1 of the 2016 Act states that appropriate amendments will be made to the Trade Union and Labour Relations (Consolidation) Act 1992 (1992 Act). References to the provisions (sections) in the 2016 Act are given in brackets.

  • A 50% turnout of those entitled to vote will be required for an industrial action ballot. The current requirement for a majority vote in favour of action is retained (Section 2).

  • Industrial action in “important public services” (such as health, education, fire, transport, border security and the nuclear decommissioning services) will require a further positive vote of at least 40% of those entitled to vote in the ballot (Section 3).

  • Trade unions will be required to include new types of information on industrial action ballots; and information to be given to union members and to the Certification Officer (CO) following a ballot (Sections 5–7).

  • The trade unions are required to give two weeks notice of any action to an employer, unless the employer and trade union mutually agree to seven days’ notice (Section 8).

  • Industrial action ballot mandates will expire after six months or after nine months where there is mutual agreement between the employer and the union; industrial action after this point will require a fresh ballot (Section 9).

  • Section 10 sets out requirements on unions for the supervision of picketing.

  • Changes to political funds: Section 11 provides that persons who join a trade union shall be required to make an active choice before contributing to the union’s political fund. Section 12 places requirements on unions to include details of expenditure from political funds in their annual returns to the CO.

  • Sections 13 and 14 create regulation-making powers in respect of paid time off for trade union duties and activities in the public sector (known as facility time).

  • Section 15 restricts the deduction of union subscriptions (the check off) from wages by relevant public sector employers. There is a regulation-making power to specify who is a relevant public sector employer.

  • Sections 16–21 set out new investigatory powers and sanctions available to the CO; and new arrangements for funding the CO.

  • In addition, s. 4 of the 2016 Act does not amend existing legislation but introduces a provision which requires the Secretary of State to commission an independent review into industrial action ballots.

  • The original proposal for employers to be able to use agency staff to cover for striking employees never appeared in the final legislation.

Changes along the way

The Trade Union Bill was not universally popular. It was opposed by the Labour Party, the Scottish National Party, the Liberal Democrats and even by the CBI. It was criticised by the International Labour Organisation (ILO) (of which the UK was a founding member) and by the Regulatory Policy Committee, an independent body appointed by the Government to review the costs and savings of proposed legislative changes, found it “not fit for purpose”.

The Bill had a somewhat stormy passage through Parliament, particularly in the House of Lords, where it suffered a number of defeats. Some proposals were consequently abandoned: for example, the proposal to ban “check-off” completely was withdrawn — check-off remained in the public sector, provided the employer agreed and the trade union paid the costs of processing the payments; measures to restrict protests by trade unions supplying plans for pickets and social media campaigns two weeks in advance of the industrial action were withdrawn; as was the requirement for everyone on a picket line to show their personal data to police, employers or anyone who asked.

Other measures were watered down.

As a result, the provisions of the Trade Union Act 2016 were somewhat different from the clauses of the original bill when that was set out in 2015 although the main features of the legislation survived. Trade unions are expected to mount legal challenges to provisions of the 2016 Act and to continue to campaign against it once it comes into effect, with its accompanying regulations in stages in 2017.

Industrial Action Ballots

Summary

  • A 50% minimum turnout requirement for all ballots.

  • A 40% minimum support requirement for industrial action is defined “important public services”.

The current law

The current arrangements on balloting are governed by the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act). There is no right to strike in the UK (see Appendix 1) but trade unions have statutory immunity against the consequences of organised industrial action provided, among other things, that the action is authorised (by a simple majority of those voting) in a postal ballot and that the union has conducted the ballot in accordance with statutory procedural requirements. There is no requirement for any level of turnout by the voters.

This legislative framework is supplemented by the 2005 Code of Practice on Industrial Action Ballots and Notices, which sets out many of these procedural requirements.

There are two major criticisms of the current arrangements.

  1. That it is overly complex and prescriptive.

  2. That strikes can be authorised on the basis of a low voter turnout.

The Government conducted a consultation on ballot thresholds in important public services in September 2015 and responded with draft regulations in January 2016.

The Trade Union Act 2016

The 2016 Act makes the following two major amendments to the 1992 Act.

  1. Section 2 of the 2016 Act requires a 50% turnout along with the majority of those voting in favour: industrial action will only be authorised by a ballot if at least 50% of those trade union members entitled to vote do so. Whether or not the vote is successful and creates a mandate for action is unaffected: a simple majority of the votes cast must be in favour of industrial action for such action to go ahead.

    Note:

    Where 1000 union members constitute the bargaining unit affected by the dispute, this clause means that at least 500 of those members would need to vote in order for the ballot to be valid. If 500 had voted, then a simple majority of them would need to vote in favour in order for the ballot to lead to industrial action: that would be 251 members. If all 1000 had voted, 501 would need to vote in favour.

  2. Section 3 inserts section 226B into the 1992 Act and requires 40% support in important public services in favour of the action. This requirement is in addition to the 50% introduced by section 2 above. The 40% threshold applies unless the trade union reasonably believes that a majority balloted are workers who are not normally engaged in the provision of public services.

    The Government has stated that the 40% rule will only apply where “a majority or workers are in the public sector” and where “the main focus of proposed strike action will take place in an important public service”.

    The reform will be introduced through regulations, which specify the category of “important public services” — see below.

    Note:

    Where 1000 union members make up the bargaining unit affected by the dispute, as per clause 2 the 50% participation threshold would need to be met: so at least 500 members would need to vote. The next test would be to determine whether the dispute was within an important public service and subject to the 40% threshold. If it was, then at least 40% of the 1000 members entitled to vote would need to vote in favour to enable industrial action. That means at least 400 members would need to vote in favour to enable action. A simple majority is still required in all ballots, so if all 1000 members had voted, then 501 votes in favour would be required to enable action.

Important public services

During 2015, the Government consulted on the types of occupations and functions in the public sector that would be subject to the 40% threshold. At the beginning of December 2016, it published draft regulations specifying, for the purposes of s.226 of the 1992 Act, the important public services covered by this threshold. They are:

  • some hospital health services: A&E, high-dependency units and intensive care units, psychiatric services, and obstetric and midwifery services for conditions which require immediate attention in order to prevent serious injury, serious illness or loss of life, emergency ambulance services (which are further defined). Where these services are provided in a private hospital or by a private ambulance service, they are not an IPS

  • teaching and other services provided by teachers and Heads for children of compulsory school age at a school, a 16–19 academy or a further education institution. Fee-paying schools and further education institutions, where the majority of compulsory school age pupils are funded by individuals, are excluded

  • fire-fighting services, specifically, extinguishing fires, protecting life and property in the event of fires and services provided by fire and rescue authority personnel in dealing with, and organising a response to, requests for such services

  • some transport services including London local bus services, national passenger rail and tramway services including maintenance and some network and station services, civil air traffic control, airport and port security services (which are further defined). Services starting and ending outside Great Britain are excluded

  • certain border control services in respect of the entry and exit of people and goods to and from the UK, sea patrols and the collection and dissemination of related intelligence by a Border Force Officer.

The regulations do not specify services in the decommissioning of nuclear installations and management of radioactive waste and spent fuel sector (following a decision to delay, pending investigation of the issues involved) meaning that there are no immediate plans to require them to apply the 40% threshold.

Comment

The employers’ groups — the CBI, the British Chambers of Commerce and the Institute of Directors — have welcomed the threshold provisions. Unsurprisingly, the trade unions have been less than enthusiastic, some even warning that the introduction of these thresholds will lead to unofficial strike action.

Research carried out on the potential impact of the 50% and the 40% thresholds by the Salford Business School in 2015 appears to show that some major national strikes would have been deprived of their legal immunity if the proposed legislation had been in force, especially that relating to strike action in the public sector. The research also showed that the impact of the proposed reforms varied from sector to sector: the strike action in the fire service cleared both thresholds; the majority of industrial action in the health sector would have failed to clear both thresholds; while under half of action in the transport sector would meet the thresholds.

It is interesting to compare the requirements of these ballot thresholds with the results of the most recent general election in 2015; the turnout was 66%; the Government was elected by 36.9% of those who voted with 63.1 voting against, which represented 24.4% of the total electorate. Indeed, not since Stanley Baldwin’s National Government in 1931 has a party secured 40% of the eligible votes at a general election — and the circumstances of that election were unusual.

The Government has stated that one of the major aims of this legislation is to ensure that “strike action only takes place on the basis of clear and representative mandates”. Nevertheless, determining whether or not the 40% threshold applies is a likely source of legal argument. Note that the threshold does not apply to ancillary workers.

A feature of recent industrial relations has been the readiness of employers to seek a court injunction to prevent a strike action on the basis of a technical error in the present balloting regime, even where the action has the overwhelming support of the union’s members. The introduction of the new balloting thresholds is not likely to see any diminution in the use of the courts to stop industrial action.

Overall, it could mean that some unions will find it increasingly difficult to mount officially-sanctioned strikes as a means of challenging employers’ demands, especially those unions involved in national collective bargaining in the public sector. In response, some unions, notably Unite, have stated that, as a result, they could use “leverage” (ie use of protests, social media and other campaigning tools) to exert additional pressure on the employer in such situations.

Conversely, unions that can meet the thresholds may find that their negotiating position is consequently stronger.

Information on Industrial Action Ballots

Summary

Trade unions will be required to provide more information on the ballot paper and to union members and employers following the vote. The unions will also be required to supply details of industrial action in their annual reports.

The current law

The information that a trade union must include on a ballot paper is set out in s.229(2) of the 1992 Act. A trade union has to ask its members on the ballot paper which type of industrial action they want to take part in — strike action or action short of a strike. Only the type of action that a majority of members vote for will then be protected and immune from legal action.

The Trade Union Act 2016

  1. Section 5 of the 2016 Act makes changes to the information that must be included in a ballot paper.

    • The trade union must state in the ballot paper the detailed nature of the issues that are in dispute (s.2B of the 1992 Act).

    • The type of industrial action must be specified (s.2C of the 1992 Act).

    • Provide an indication of the time period during which it is proposed that these specific types of industrial action take place (s.2D of the 1992 Act).

    All this detailed information is to enable the union member who is voting to make an informed decision when deciding how to vote.

  2. Section 6 requires the union to provide the following additional information to members and relevant employers about the result of the ballot.

    • The number of individuals who were entitled to vote in the ballot.

    • Whether or not the number of votes cast reached the 50% turnout requirement.

    • If the 40% support requirement applies and, if so, whether it was met.

    This new requirement for information under s.231A of the 1992 Act is in addition to which the trade union already has to provide under s.231 of the same Act: number of votes cast, number of those who voted “yes” and “no”, etc.

  3. Section 7 requires a trade union to include details of any industrial action taken in the reporting period in its annual return to the CO. It would include the additional information set out above.

Comment

To date, the provisions in the 1992 Act to extend the information on industrial action ballots seems to have generated very little debate or excitement.

Timing and Duration of Industrial Action

Summary

The 2016 Act extends the period of notice that trade unions must give prior to industrial action from the current 7 days to 14 days. It also sets a six-month expiry date on ballot mandates; after this period industrial action would require a fresh ballot.

The current law

A trade union must provide an employer with notice of industrial action after it has secured a ballot mandate and before any such action is taken. There has to be industrial action within a period of four to eight weeks following the ballot in order that the mandate remains valid.

The Trade Union Act 2016

  1. Section 8 of the 2016 Act extends the period of notice of industrial action from the present 7 days to 14 days, except where the trade union and employer agree to seven days’ notice.

  2. Section 9 provides that the members’ agreement to a union’s proposed industrial action (the mandate) will automatically expire six months after the date of the ballot; or up to nine months after the date of the ballot where the longer period is agreed by union and employer.

Comment

Again, these particular provisions in the 2016 Act have received little attention.

Picketing

Summary

The 2016 Act introduces new legal requirements relating to the supervision of picketing. It incorporates into law provisions of the 1992 Code of Practice on Picketing.

The current law

Those who engage in or organise picketing outside a workplace are protected from liability for the tort of inducing a breach of contract by the employees they are attempting to persuade to stop working by s.220 of the 1992 Act. This provides that a peaceful picket occurs where there is a trade dispute and a person attends at or near his or her place of work, to peacefully obtain or communicate information to another, or peacefully to persuade another person not to work.

The provisions of the 1992 Act are supplemented by the 1992 Code of Practice on Picketing, which sets out the organisation of picketing and the requirements of union supervision of pickets.

The Trade Union Act 2016

Section 10 of the 2016 Act introduces into law many of the provisions in section F of the Code of Practice on Picketing. It limits the existing immunity from tortious liability for inducing a breach of contract. In the case of union organised or encouraged picketing, the immunity would only apply to picketing that complies with the requirements of a new s.220A of the 1992 Act. This new section introduces the following requirements.

  • The union must appoint a person to supervise the picketing (the picket supervisor).

  • The picket supervisor must be an official or member of the union familiar with the Code of Practice on Picketing.

  • The supervisor must communicate to the police his or her name, contact details and the picketing location.

  • The picket supervisor must have a letter of authority from the union and where the employer, or the employer’s agent, asks to see the letter, it should be shown, as soon as is reasonably practical.

  • The picket supervisor must be present during picketing and readily contactable by the union and police and be able to attend the picket at short notice.

  • When the picket supervisor is attending the picket, he/she must wear something so that he or she is readily identifiable.

Comment

The provisions of the 2016 Act go further than the present law by making union supervision of picketing mandatory. A failure to comply with the relevant statutory procedures could result in the loss of protection for the trade union and its members against legal proceedings for inducing breach of contract.

In the face of criticism and the results of a consultation on picketing (the Government response was published in November 2015), the Government dropped a number of proposals from the original bill, including: the requirement for a union to reveal details of its social media campaign, an intention to create a new criminal offence for intimidation on the picket line; the requirement for the picket supervisor to show the letter of authority to anyone who requested to see it; and that the picket supervisor should wear an armband.

Opponents of the 2016 Act continue to assert that this level of monitoring is excessive and undermines freedom of speech.

The Government has announced that it intends to update the Code of Practice on Picketing to deal with the increasing use of social media.

Political Funds

Summary

The 2016 Act changes donations to a trade union’s political fund from an automatic “opt-out” procedure to an express opt-in arrangement for new members.

The current position

Currently, in accordance with s.84 of the 1992 Act, members of a union automatically contribute to a union’s political fund, unless they actively take a decision not to contribute — known as “opting-out”. Once trade union members are contributing to a political fund, they continue to do so until they no longer wish to contribute.

The Trade Union Act 2016

Section 11 of the 2016 Act inserts a new section 84 into the 1992 Act whereby new trade union members cannot contribute to a political fund until they have expressly opted-in. Note that this applies only to new members and not to existing members. A person must not suffer any disadvantage in the process.

Having opted-in a member may give notice at any time to cancel his or her contribution. Under a new s.84A of the 1992 Act, the unions must send information to all new members of this right to withdraw. The union is also required to collect a separate amount for the political fund from members or provide a rebate for those who are not contributing (section 85). The 2016 Act also amends s.82 of the 1992 Act (rules as to political fund).

These provisions will not apply for the first 12 months (ie a transition period) after section 11 has come into force.

A transition period

The Government, the Conciliation Officer and all the trade unions that have a political fund have consulted about the length of the transition period before the opt-in arrangements. It has now laid the Trade Union Act 2016 (Political Funds) (Transition Period) draft regulations before Parliament. These provide that the transition period shall be for 12 months, beginning on 1 March 2017.

Comment

The Government believes that the giving of money to a party should be an act of free will. The original proposal in the bill that this “opt-in” has a shelf life and be renewed after five years was dropped.

Such a change to the current system of political donation will obviously deplete a trade union’s political fund and may affect the ability of trade union leaders to campaign more widely on political issues.

Trade unions are also the largest funders of the Labour Party: over the past five years they have contributed more than £50 million, which represents more than half of the Labour Party’s income.

Facility Time

Summary

The 2016 Act creates new reporting requirements in respect of the amount of time off for union duties or activities taken by union representatives in the public sector.

Definition

Facility time is time off from an individual’s job, granted by the employer, to enable a representative (rep) to carry out his or her trade union role. In some cases, this can mean that the rep is fully seconded from his or her regular job, enabling him or her to work full-time on trade union tasks. It can also mean an employer allows a rep to carry out trade union duties and activities, instead of his or her substantive job, for a certain amount of time per week or month.

The current law

In workplaces where the trade union is recognised, the 1992 Act provides a number of statutory rights to time off for union duties and activities or to take part in union training. The right applies to:

  • workplace reps

  • health and safety reps

  • union learning reps

  • information and consultation reps.

Workplace reps are entitled to paid time off to cover the following duties:

  • trade union duties related to collective bargaining, on issues like: terms and conditions of employment; redundancies; job evaluation; family-friendly policies; discipline; trade union facilities; and negotiating machinery

  • individual representation

  • meetings with management and preparation for these meetings

  • keeping members informed about negotiations

  • analysing, and providing learning and training.

The 2010 Acas Code of Practice on Time Off for Trade Union Duties and Activities sets out the background to these facility time rights.

The Trade Union Act 2016

Section 13 of the 2016 Act inserts a new section 172A into the 1992 Act enabling a Minister of the Crown to make regulations requiring all “relevant public sector employers” (this will therefore include not only core departments and agencies in the civil service but also non-departmental public bodies, local government, emergency services and Transport for London) with one or more trade union representatives to publish information relating to time off taken by those individuals for trade union duties and activities (facility time).

Section 14 allows a Minister of the Crown to make regulations to limit the time taken off by trade union representatives to a percentage of the representatives’ working time or, alternatively, to cap the percentage of the employers’ pay bill that is for facility time.

Comment

The Government believes that these provisions will promote transparency and public scrutiny of facility time and encourage public sector employers to moderate the amount of money spent on facility time in the light of that scrutiny.

Critics of the 2016 Act believe that these measures will restrict good relations between public sector employers and their staff and that these public sector employers should have the freedom to decide how they manage employment relations.

Certification Officer

Summary

The 2016 Act strengthens the role of the CO.

Current law

The CO is an independent officer, appointed by the Secretary of State, following consultation with Acas, who has a statutory duty to oversee administrative matters relating to trade unions and employers’ association.

The Trade Union Act 2016

Sections 16–21 of the 2016 Act reform the role of the CO. They introduce:

  • appointment, investigatory, reporting and enforcement powers relating to trade unions and their obligations (reporting procedures) under TULRCA 1992. The CO can act on information from third parties, including employers, the media and others

  • the power to impose financial penalties of between £200 and £20,000 for breaches of the reporting procedures

  • the power to, by regulations, make provision for the CO to require trade unions and employers’ associations to pay a levy, funding the performance of his or her role.

Comment

Under the provisions of the 2016 Act, the CO now has the power: to bring a complaint against a trade union; make a decision on that complaint; and use other powers to impose a fine on that union. Critics argue that the increase in powers places the CO’s independent relationship with trade unions in jeopardy — the complaint is that it effectively “politicises” the role. It will also place significant new costs on trade unions.

Check-off Arrangements

Summary

Check-off is an arrangement whereby union membership payments are deducted from members’ salaries by their employers and paid over to the unions. The 2016 Act does not introduce a blanket ban: check-off will still be available where the employer agrees to it and the trade union bears the administrative costs.

The Trade Union Act 2016

The bill did not originally contain any provisions relating to check-off but s.15 of the 2016 Act permits public sector employers to provide a check-off service if the workers have the option to pay their union subscriptions by other means and arrangements have been made for the union to make reasonable payments to the employer in respect of the making of the deductions.

The provision will come into force after a 12-month transition period — May 2017 at the earliest.

For the purposes of this section, public sector employers are employers that are either public authorities specified, or of a description specified, in regulations, or bodies that provide functions of a public nature that are wholly or mainly funded by public funds and are specified in regulations (subsections 3 and 4 of the new section 116B was inserted by the section).

These would include central government bodies such as civil service departments including non-ministerial departments and their executive agencies, non-departmental public bodies, local government bodies such as councils, fire and rescue authorities and Transport for London. They would also include NHS bodies (including Trusts), state-funded schools (including academies and free schools) and public corporations such as the BBC. A public sector employer may be a body or an office holder.

Comment

Supporters of the measure have consistently argued that it is not the business of public sector employers to be processing union dues. Indeed, the Department for Communities and Local Government attempted to end check-off in the department but were prevented from doing so by a successful legal challenge in 2013 in the High Court (Hickey & Hughes v Secretary of State for Communities and Local Government).

Critics of the legislation regard this measure as an unjustified attack on trade unions but welcome the abandonment of the plans to ban all check-off and the fact that it will remain in the health service, local authorities and education.

A ban on check-off has already been imposed in the civil service and central government functions.

Hiring Agency Workers during Industrial Disputes

Summary

In 2015, the Government announced that it intended to introduce regulations that would repeal the present restriction on hiring agency workers during industrial disputes. In the event, no such provisions relating to this were included in the 2016 Act.

The current legal position

Under regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 an employment business is prohibited from supplying agency workers to cover duties normally performed by workers taking part in a strike or other industrial action, or to cover the work of an employee covering the duties of an employee taking part in a strike or other industrial action.

Consultation

The Trade Union Bill did not contain any measures relating to this issue but the Government consulted on draft regulations that could be introduced to repeal the restriction.

The Government wanted to ensure that strikes should only ever be the result of a clear, democratic decision and commits to tackling the disproportionate impact of strikes in important public services. Removing this regulation from the Conduct Regulations would allow employers facing industrial action to hire temporary agency workers from employment businesses who would then be able to perform some of the functions not being carried out due to the industrial action.

The consultation ended on 9 September 2015 but no provisions on this matter appeared in the 2016 Act.

Comment

The trade unions and other opponents of the legislation claim that such a measure would threaten the basic right to strike — agency workers will be brought in to cover for striking staff. There are also health and safety concerns about young and inexperienced replacement workers taking on some of the roles during a strike.

There has been no further information from the Government on this issue.

Electronic Balloting

As a result of a House of Lords’ amendment, s.4 of the 2016 Act requires the Secretary of State to commission an independent review of electronic balloting (sometimes known as e-balloting) for all industrial ballots within six months of Royal Assent. The Secretary of State will then consider the report of the review and, after consulting with relevant organisations, lay before Parliament a response to the report.

The Trade Union Act (Commencement No. 1) Regulations, which came into force on 3 November 2016, provide for this review of e-balloting and in line with this requirement, the Department for Business Energy and Industrial Strategy announced that the independent review will be chaired by Sir Ken Knight.

The review will address the following issues.

  • The electronic and physical security of e-balloting methods, including risks of interception, impersonation, hacking, fraud or misleading, or irregular practices.

  • If any system can safeguard against the risk of intimidation of union members and protect anonymity of ballot responses.

  • The security and resilience of existing practices of balloting union members.

  • The aims of the Trade Union Act 2016 to ensure strikes and related disruption to the public only happen as a result of a clear, positive decision by those entitled to vote.

The final report is to be laid before Parliament, together with the Secretary of State’s response, by the end of December 2017.

Scotland and Wales

The provisions of the 2016 Act and the consequent amendments to the Trade Union and Labour Relations (Consolidation) Act 199, extend to Great Britain — and not, therefore, to Northern Ireland. In the view of the UK Government, the matters to which the provision of the legislation relates are not within the legislative competence of the Scottish Parliament or the National Assembly for Wales.

In the face of opposition to the legislation from the Scottish and Welsh Assemblies, the UK Government announced that there would be consultation in Scotland and Wales on a number of potentially devolved issues, including ballot thresholds, facility time and check-off. The situation remains unclear.

Conclusions

The legislation must be seen against the background of declining trade union membership. Only a minority of private sector companies now have a unionised workforce; the strength of trade unions now appears to lie in the public sector.

A number of trade unions have been vociferous opponents of the 2016 Act. Unison has indicated that it will challenge the reforms in the courts, alleging a restriction on the right to strike as contrary to the European Convention on Human Rights (ECHR) — see Appendix 1. Members of Britain’s largest trade union, Unite, have already voted in favour of removing a clause in the union’s rules to stay within the law when staging protests.

The provisions of the 2016 Act are expected to come into force in stages in 2017. As outlined above, some have been published but no firm dates for implementation have yet been given.

The effects of the 2016 Act, when its provisions finally come into force, are likely to be significant. The legislation will circumscribe unions’ limited freedom to take industrial action. It will certainly lead to more caution about the use of such official action.

Appendix 1: Compatibility with the European Convention on Human Rights

The Human Rights Act 1998 requires that legislation must be read and given effect in a way that is compatible with rights contained in the ECHR. The Court of Human Rights in Strasbourg has held consistently that the right to strike is implied by Article 11 of the ECHR — the right to freedom of assembly and association.

In National Union of Rail, Maritime and Transport Workers v UK [2014] IRLR 467 the Court, after rejecting the union’s challenge to aspects of industrial action in the UK (and particularly the ban on secondary action) repeated previous case law that the right to strike is protected by Article 11 but went on to say that it is a qualified right. Proportional restrictions on its exercise may be justified. Such restrictions are to be judged by whether or not it is necessary in a democratic society and national legislation should be allowed “a wide margin of appreciation” in this respect.

The Government believes that the further requirements of the Trade Union Act 2016 (eg the requirement for threshold ballots and the more stringent conditions set for the public sector) are justified and proportionate and compatible with Article 11. The Secretary of State for Business, Innovation and Skills made the following statement: “In my view, the provisions of the Trade Union Bill are compatible with the Convention rights.” The Government has published a separate memorandum on ECHR issues with an assessment of compatibility of the bill’s provisions with the convention rights.

The opponents of the legislation do not accept this. They argue that limitations on the validity of the ballot and the restriction on the right to strike are disproportionate and represent an attack on the fundamental right to strike. It has to be said that it is highly doubtful if there is any “right to strike” under British law. A strike is a breach of contract. What does exist in UK law is protection, or statutory immunities, for the union and individuals from being sued for inciting breach of contract by calling a strike.

The differences between the Government and the opponents of the 2016 Act may result in legal challenges to the legislation.

Last updated 19 January 2017

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