Industrial action reform: the Trade Union Bill restrictions

Author: Darren Newman

Consultant editor Darren Newman examines the Trade Union Bill and explains why, as currently drafted, the Bill places more restrictions on the unions and industrial action than he had anticipated.

When, back in May, I wrote about the then forthcoming Trade Union Bill, I focused on the new turnout thresholds that would be imposed on industrial action ballots - and I suggested that there was nothing to prevent unions from meeting those thresholds if support for industrial action was strong enough.

Having now read the Bill, I find it to be much more draconian than I had expected - so much so, that the turnout thresholds may prove to be the least of the union movement's problems. Other measures in the Bill are clearly designed to make calling industrial action as difficult a process as possible. That may seem like a good idea from an employer's point of view, but there is a danger that the changes will be positively harmful to good industrial relations.

Most people accept the need for industrial action to be regulated, and to have the support of a fair and democratic ballot of the union's members. But most would also accept that the law should encourage the settlement of disputes through negotiation and conciliation. A major problem with the Trade Union Bill, however, is that it reduces the scope for industrial action to be postponed while talks aimed at reaching a settlement take place.

Currently, when a union has balloted for industrial action, it must call at least some industrial action within the four-week "period of effectiveness" running from the date of the ballot - although, where the employer agrees, this period can be extended to eight weeks. Once industrial action has taken place, however, the ballot remains valid for as long as the trade dispute is unresolved. The parties can engage in lengthy negotiations aimed at settling the dispute, with the possibility of industrial action resuming if the talks break down.

This is not without its problems. In the public sector, there are examples of industrial action that is still taking place some years after the initial ballot. Prior to the election in May, the Conservative manifesto promised that a Conservative Government would "ensure [that] strikes cannot be called on the basis of ballots conducted years before".

This promise finds expression in clause 8 of the Bill, which replaces the "period of effectiveness" with a regime under which the ballot ceases to be valid just four months after the ballot date. There is no scope for this period to be extended. If a union ballots for industrial action and the dispute remains unresolved four months later, the union must carry out a completely fresh balloting process.

This is a dramatic change in the law, which has the potential to transform the way in which both sides to a dispute behave. In recent years there has been a tendency for unions to ballot their members quite early on in a dispute, using the mandate for industrial action as leverage in their negotiations with the employer. That will no longer be a good strategy. In any negotiations taking place after the ballot, the employer will have one eye on the calendar, counting the days until the union needs to ballot again.

On the union side, the incentive will surely be to seek maximum value from the ballot by hitting the employer as hard as possible with more industrial action than it would otherwise have called. There will be no point in having one day of action followed by weeks of further talks. Further, since a strike ballot must be conducted entirely by post, a union that wants to take some form of continuous industrial action will need to start the re-balloting process within just a few weeks of the initial result. This hardly seems conducive to constructive negotiations.

Added to this is a new requirement for a union to give 14 days' notice of any industrial action - increased from the current requirement of seven days' notice. This will help the employer take steps to limit the impact of the disruption, as will the likely removal of the restriction on employment agencies providing workers to cover for strike action. However, reducing the impact of a one-day strike creates an incentive for unions to call even more action to compensate. Far from helping the parties to resolve disputes, the new rules could simply entrench positions and increase conflict.

Another change, which has so far attracted very little attention, seems designed to encourage litigation rather than negotiation. Clause 4 adds new requirements to the rules already in place for the content of the voting paper in an industrial action ballot. Currently, a union simply has to ask if the member supports strike action or action short of a strike in relation to the dispute with the employer. However, the new requirement would require the voting paper to "include a reasonably detailed indication of the matter or matters in issue".

It is difficult to see how this wording can escape amendment. Whatever "reasonably detailed" may mean, it is clearly too vague a term to use in a provision that determines whether or not the union's action is lawful. However, the Government's intention is clearly to require unions to be specific about the dispute on which a ballot is being called. Suppose the union rejected a pay offer of 1.2% and a ballot supported industrial action. Would the ballot remain valid if the offer were to be increased to 1.3%? The union would want to use a form of words that would give it some flexibility, but there would always be potential for a challenge if the employer felt that the circumstances had changed.

This is the sort of Bill you might expect if the country were facing wave after wave of militant strike action, but the annual days lost to industrial action remain at a historic low. Indeed, in the private sector, industrial action is vanishingly rare. In reality, this Bill is not about solving real-world problems, but about political positioning.

perspective@xperthr.co.uk