An Easy Guide to the Trade Union Act 2016

What it says; what it means

• Higher thresholds for success on industrial action ballots

  50% turnout requirement

  From March 01 2017, industrial ballots must attract a 50% turnout in order for their results to be legally valid. For instance, if 100 workers are eligible to vote, and only 49 turnout for the vote, workers cannot take industrial action even if all 49 vote in favour.

  40% support requirement

  Since March 01 2017, workers whose role mostly concerns the delivery of “important” public services (including some workers outsourced to private companies) have to reach a 40% support threshold among all workers eligible to vote, as well as the 50% turnout threshold, in order to take action. This means that if 100 workers are eligible to vote, at least 50 have to vote, and at least 40 of them has to vote in favour. If 50 voted and 39 voted in support, it would still not be legal to take industrial action, even though the vast majority of voters elected for it.

  Expected impact of the new laws

  Currently, trade unions are restricted to holding postal ballots and are not permitted to ballot their members in the workplace or online. Because it is difficult to gain a high turnout through this particularly cumbersome method of collecting votes, it may be more difficult for unions to take industrial action.

  Although the government conceded to pressure from opposition parties to investigate the feasibility of e-balloting to improve union ballot turnout, a review of the security of such technology for industrial action ballots by Sir Ken Knight recommended against its use. This is despite the fact that e-balloting is already accepted as a secure way to ballot members of the Conservative Party during internal elections.

  Strike action is at an historic low with only 800,000 work days lost per year, compared – for example – to days lost due to work-related accidents and injuries (28.2 million days lost per year). Now that it is even harder for workers to strike, we can expect these numbers to fall even further.

  Strike action is normally employed by unions as a last resort with employers who refuse to provide fair pay and conditions for workers. In the employment relationship, most of the power sits with the employer, as there are more workers able to take jobs than jobs to go around. This means that if there were no laws in the employer’s way, there would be nothing to stop them from pitting workers against each other in a race to the bottom on wages and conditions. Unions have the power to take industrial action as part of a collection of laws that seek to redress this power imbalance and thus prevent the exploitation of workers. Strikes act as a bargaining chip at the negotiating table, giving unions the leverage they need to get a fair deal for workers. Because this law makes it more difficult to take strike action, workers may see a lowering of wages and conditions and modern-day problems with exploitation could get worse.

• Two weeks’ notice to be given to employers of industrial action

  Unions must now give employers double the amount of notice of industrial action – two weeks instead of one – except for in cases where the employer agrees to stick to one week’s notice.

  Expected impact

  This provides additional time for employers to prepare to resist the strike or to plan a media campaign against it, thereby potentially protecting itself against the disruptive nature of the action and reducing the leverage unions have at the negotiating table.

  No other organisation has to give advance notice of demonstration and there are concerns this sets a dangerous precedent for the restriction of civil protest.

• Expiry of mandate for industrial action

  Votes in support of industrial action now become invalid after six months if no action has been taken, or after nine months with the agreement of the employer.

  Expected impact

  It is suspected this law will lead to longer and messier disputes. It is now in the employer’s favour to string unions along until the expiry date of their ballot, preventing them from reaching a point in the negotiations where strike action is deemed necessary, but also failing to reach any resolution. This means that when the ballot becomes invalid, the unions will then have to spend yet more money and resources recasting the ballot and the negotiations may drag on for much longer than in today’s disputes.

• Union supervision of picketing

  Unions must now elect an official supervisor for their pickets, who must give the police their name, contact details and the location of the picket. On the picket itself they must be easily identifiable (such as through wearing an armband), and must carry a letter of authorisation from the union to be shown to employers by request.

  Expected impact

  This law was passed despite the fact Chief Police Officers had been consulted by government and said current legislation is fit for purpose. Without a good justification for this law, it is surmisable that the law was put in place to add additional pressure on unions when they go on strike. There was already a code of conduct in place for picketing, which was well adhered to by unions and had caused no police concern. Now that these are matters of the law, a picket could be declared illegal if any picket supervisor slips up, even in such a small way as forgetting or losing a letter of authorisation.

• Public sector organisations required to publish facility time details

  Public sector organisations are now required to publish details of the amount of time trade union representatives take on union matters and how much this “cost” the public sector. However, this “cost” will be defined only by the number of hours spent on union duties, and the savings made as a result of a trade union presence will not be deducted. The government also reserves the power to cut facility time for public sector workers.

  Expected impact

  The published “expense” to the public purse is doomed to inaccuracy because the significant savings made to the operation of the sector through having an organised workforce in which disputes can be more easily resolved is not costed. This biased information can then be seized upon by those areas of the press that spread misinformation about the trade union movement in order to reduce public support for unions.

  Through the government’s reserved powers, it is also possible that trade union presence will be restricted in the public sector.

• Restrictions on check-off systems

  The government originally wanted to ban “check-off”: the system through which workers have their union subscriptions deducted from their wages. These systems are particularly preferred among public sector organisations. After wide opposition, the government agreed check-off could stay but it is now restricted so that workers must also be provided with other means through which to pay their subscriptions (such as direct debit) and unions must pay for the check-off systems themselves.

• Opting in by union members to contribute to political funds

  Unions must now ensure that new members “opt in”, rather than out, of their political funds – a portion of the money unions receive from members’ subscription fees that is earmarked for spending on political campaigning and supporting political parties.

  Expected impact

  It is expected this will lead to lower funding available for the Labour Party in particular – and therefore greater political leverage to the Conservative Party – but also to other campaigns, such as those against racism and other political concerns that affect the community.

• Extra information to be included on the voting paper

  Trade unions must now provide additional details of what workers are voting for on the ballot. At the moment, some unions give workers the choice between “strike action”, “action short of a strike” and “no action”.

  Now, trade unions will have to provide details of what each option entails, including what types of action are “short of a strike”, how long the action will take and when, and a summary of the terms negotiated for.

  Expected impact of the new laws

  There have been concerns around not only the additional cost and resources that must go towards strike ballot papers, but also the potential for this law to perpetuate disputes and unnecessary litigation. During a debate on this matter in the House of Lords, Liberal Democrat peer Lord Oates described this new law as “a lawyers’ paradise”. Trade unions will need to detail every possible course of action to ensure that whatever action they decide to take goes by the book. Lord Oates went on to say that this requirement “will ensure that disputes are drawn as widely as possible and that they are as hard to resolve as imaginable”.

• Information to members about results of the ballot

  Unions must now provide information to members about the results of every ballot including: the number of individuals who were entitled to vote in the ballot; the number of votes cast in the ballot; the number of individuals answering “Yes” to the question, or as the case may be, to each question; the number of individuals answering “No” to the question, or as the case may be, to each question; the number of spoiled or otherwise invalid voting papers returned; whether or not the number of votes cast in the ballot is at least 50% of the number of individuals who were entitled to vote in the ballot; and in “important public services” whether or not the number of individuals answering “Yes” to the question (or each question) is at least 40% of the number of individuals who were entitled to vote in the ballot.

  Expected impact

  This is further red tape that trade unions must comply with, taking up the time and resources of unions. There is no indication of what mandate there was for requiring this level of detail in unions’ communications with their members.

• Increased requirement for information to Certification Officer

  Trade unions must now provide additional information pertaining to industrial action and political expenditure in their annual report to the labour movement regulator the Certification Officer.

  Expected impact

  Once again this is additional red tape that takes up the resources of unions and there appears to be no firm justification for its necessity.

  The Act also includes a clause to allow the Certification Officer the power to investigate any report of rules breached by unions and then fine the union up to £20,000 for any breaches found. This applies even if the complaint comes from a member of the public with no affiliation to the union, even if they have a political or otherwise vexatious reason to complain about a union. The trade unions will have to pay for their own investigation. This could lead to people with anti-union beliefs to deliberately suck unions dry of resources by making vexatious complaints.