UPDATE: Proposed amendments to the Trade Union Bill

20 January 2016

The latest raft of amendments to the Trade Union Bill have been published, largely by Liberal Democrat peers Lord Stoneham of Droxford and Baroness Burt of Solihull. They have proposed the following changes to rebalance the Bill to reduce the burden and injustice on trade unions:

1) Removing the 40% ballot support requirement in “important” public services

The Tories wish to legislate that 40% of all eligible voters would need to support a strike in the public sector, which in conjunction with the 50% threshold on turnout could mean trade unions would need a very high majority of ‘yes’ votes for strikes to go ahead.

Lord Stoneham and Baroness Burt propose to scrap this proposal altogether, and if this should fail they wish to limit the statutory instrument that would allow the Secretary of State to decide what constitutes an “important” public service. In the current version of the Bill, the Minister would be able to change this definition according to the circumstances presented, but the amendment would mean he would have only one opportunity to define an “important” public service and this could not be changed after it has met with the approval of both houses of parliament.

Previous amendments from Lords Mendelsohn and Collins of Highbury proposed that the 40% threshold only apply to workers who are “solely” engaged in “essential” public services, as well as taking the power away from the Secretary of State to define what an “essential” service is, replacing it with the more commonly accepted definition: “Those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.”

2) Introducing electronic balloting and in-work balloting

Currently, trade unions are limited to a postal balloting system, which is inconvenient and archaic, thus making it difficult for unions to improve the turnout to votes. Several MPs and Lords have called for electronic balloting to be made available to unions so that they may make it easier for workers to have their say, but the Tories have rebutted that this technology is vulnerable to fraud….despite the fact the Conservative candidate for the London mayoral elections was voted in this way…

A new Clause has been proposed by Lord Stoneham and Baroness Burt that would allow unions to use both electronic balloting and balloting at the workplace to improve the ease with which members can vote. The Clause includes additional subsections to ward-off surveillance by employers if balloting were to take place in the workplace.

3) Making the proposed picketing rules a “Voluntary Code”

The Bill proposes that pickets be made illegal unless a picket supervisor is selected, who then makes themselves known to and contactable by the police, wears an armband or badge to identify themselves on the picket line, and can provide a letter from the union recognising them as the official supervisor if asked to by the police or a representative of the employer.

Lord Stoneham and Baroness Burt have proposed an amendment that would make each of these “rules” voluntary, thereby protecting the lawfulness of pickets where they are not followed. They suggest the proposed “rules” are referred to as a Voluntary Code.

Last week, Lords Mendelsohn and Collins of Highbury gave notice of their intention to oppose the government’s proposed picketing rules altogether.

4) Removing the responsibility of unions to pay for the Certification Officer

The Tories wish to introduce a levy of unions to pay for their regulator the Certification Officer (CO). Lord Stoneham and Baroness Burt have proposed that this levy is removed from the Bill.

5) Removal of inspection without cause

The Bill currently states that the powers of the CO will be widened so that unions may be investigated without any complaint being made to instigate such an investigation. The CO would then have the power to come to judgements based on this investigation, and fine unions for anything they deem to be an infraction. As above, the unions would then be forced to pay for the entire process!

Lord Stoneham and Baroness Burt have proposed the power of the CO to investigate in the absence of any complaint or report against a union should be removed.

They have also proposed that should the CO call on a third party to carry out an inspection, consideration must be made as to this inspector’s impartiality and cost.

6) Exempting local services from a statutory instrument to limit Facility Time

The Bill includes “Reserve Powers”, which allow the Secretary of State to create new regulations with reference to facility time, should they wish to limit this in the public sector.

Lord Mendelsohn, a Labour peer, has proposed an amendment to exempt services provided by local authorities or the London mayor’s office from these Reserve Powers.

Other amendments have already been made to exempt services provided by local authorities, the London Mayor’s office and public services either partially or wholly devolved to the Scottish Government, Welsh Assembly or Northern Ireland executive from other powers within the Bill.

Previous amendments

Previous amendments to the Bill have included:

Reporting of savings made to employer as a result of facility time: Lords Mendelsohn and Collins of Highbury propose to remove the Bill’s requirement for public sector employer’s to report what proportion of their total pay bill went towards facility time, the percentage of employees’ time used for union matters, and any facilities provided by the employer to support trade union work.

They also propose the addition of a requirement for public sector employers to report a “reasonable estimate” of what cost savings have been incurred by facility time arrangements and a statement agreed by both employer and union of the value of these arrangements.

We argued that obliging public sector employers to report only on the cost of facility time and not the savings made through trade union activities provided biased information that an anti-union media may take advantage of. The proposed amendments go some way to balancing this score.

Increasing the validity period of strike ballots to 12 rather than four months: The Bill currently states that the outcome of ballots is valid for only four months, after which time unions would need to hold a costly re-ballot to continue with plans for industrial action. The Institute of Employment Rights argues that this may encourage unscrupulous employers to hold out on negotiations, knowing that unions have a time-limit and that the expense of a re-ballot will put pressure on unions to settle for less than desired.

Lords Mendelsohn and Collins of Highbury have put forth amendments to increase this time limit to one year.

Removing right of Minister to remove check-off arrangements outside of the public sector: Lord Monks has proposed an amendment to the Trade Union Bill to remove a dangerous statutory instrument, which would allow the Secretary of State to treat any organisation or worker funded wholly or partly from public funds and which performs functions that could be considered to be “of a public nature” to be treated as a “public service” with the regard to the Bill’s restrictions on the check-off system.

This statutory instrument would mean that Ministers could force through changes to the way that trade unions collect their subs from private industries, such as rail and utilities, even if both employees and employers in these industries are happy with the check-off system.

Committee Stage

The next step of the Bill’s movement through parliament is the Committee Stage in the Lords, when these amendments will be debated and put to the vote. The date has now been set for this stage for 08 February 2016.

Get in-depth analysis of the Trade Union Bill

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The Conservative Government’s proposed strike ballot thresholds: The challenge to trade unions – just £6!