Industrial action reform: the Government's proposals

Author: Darren Newman

Consultant editor Darren Newman examines the newly elected Conservative Government's proposals for reform in relation to industrial action, and balloting thresholds in particular.

One advantage of having a majority government - of whatever persuasion - is that it is easier to predict the policies that it will pursue. Without the horse-trading involved in coalition governments we can look to the relevant party's manifesto as a reasonable guide to what its initial programme for Government will be.

It is clear from the Conservative manifesto that, with regard to employment law, one priority is the reform of the law governing trade unions - and in particular industrial action. The new law will be wide-ranging with further restrictions placed on picketing and the repeal of the current rule preventing use of agency workers as cover for striking employees. We can also expect the introduction of a "shelf life" for industrial action ballots. Currently, once a union has taken industrial action following a successful ballot, it may continue to do so for as long as the dispute continues. We have seen action in the public sector, for example, based on a ballot held many months earlier. It is likely that any new law would require the union to seek periodic reauthorisation for industrial action.

The main focus of the new law, however, will be the introduction of turnout thresholds in industrial action ballots. Under the current law, industrial action will be lawful if it is supported by a majority of those voting in a ballot - irrespective of how many union members actually participate. Under the new law, a ballot will need to achieve at least a 50% turnout - although industrial action will still be authorised if a bare majority of those voting support it. In "essential services" such as education, transport, fire and health, the rules will be stricter still. In these areas industrial action will need to be supported by a majority of those voting and at least 40% of those entitled to vote.

There will be considerable opposition to this move, but that is unlikely to worry the newly elected Government. Indeed a fight with the trade unions may well revive happy memories of the successful battles of yesteryear. However, the difference is that the reforms introduced by the Thatcher Government were addressing a genuine public concern about the prevalence of strike action and the potential intimidation of those union members who did not support it. It is many years since the level of industrial action has been regarded as a serious threat to the economy, and dissenting union members are now well protected by the law. Unions are prevented from subjecting members to any detriment for failing to support or take part in industrial action under pain of punitive damages and individual members are also free to leave a union - or choose not to join in the first place. Mass pickets are no longer tolerated and, in any event, choosing to cross a picket line no longer has the resonance that it once did.

As for the balloting process itself, the law is already quite robust - or draconian, depending on your point of view. Ballots are now conducted entirely by post, the votes are counted independently and the whole process is subject to external scrutiny. Employers must be informed at every stage and the union must give seven days' notice of any industrial action, clearly identifying the groups of workers involved.

In many ways, then, these new reforms are aimed at addressing a problem that was solved 20 years ago. But the fact that the reforms are motivated by politics rather than the need to address a genuine and urgent problem will not stop them happening. Indeed, those few employers that do worry about industrial action will welcome the new rules and the Government is likely to be unmoved when the unions argue that the thresholds will effectively make taking lawful industrial action impossible.

In reality, I suspect that the impact will be less dramatic than a complete absence of lawful industrial action. It is certainly true that, on average, the turnout in industrial action ballots is so low that many recent strikes would have been unlawful under the thresholds being proposed. The simple explanation for this is that the ballots must be conducted entirely by post. Even though those voting do not need a stamp, they still need to make the effort to go to a post box and that naturally suppresses turnout. If the Government's concern was simply the democratic legitimacy of industrial action, a natural reform would be to allow online voting or workplace ballots, in relation to which turnout would be likely to be much higher. The fact that such a reform is unlikely to be considered indicates that the Government's real intention is to throw as many obstacles in the way of lawful industrial action as possible.

Nevertheless, there is no inherent reason why turnout in even a fully postal strike ballot should not be high. Industrial action will be effective only if it has strong support from the majority of those who will be called on to take part. If a union cannot motivate workers to vote, how keen are they likely to be to walk out? In the past, union members who supported action knew that the turnout did not matter, provided that a majority of those who did vote voted "yes". In future, a union will have to campaign not just for a "yes" vote but also for a high turnout, and those who support action will know that they have to make the effort to vote. It is worth noting that the recent ballot conducted by the RMT for a national railway strike achieved a 60% turnout. The 80% support obtained for strike action would mean that this ballot would have met the 40% threshold proposed by the Government.

One consequence of the introduction of strike ballots has been that unions are able to use the results as a bargaining tool in their negotiations with employers. The new rules may make calling lawful industrial action harder, but a union that meets the new thresholds may approach the dispute with increased confidence. Unions will not be able to avoid this change, so they may as well embrace it.

perspective@xperthr.co.uk