Trade Union Act impact "less draconian" than anticipated
Author: Darren Newman
Consultant editor Darren Newman compares the provisions in the Trade Union Act 2016 with those in the original Bill. He also explains why the timescale for a review of electronic balloting set out in the Act may be more fluid than it first appears.
The Trade Union Bill was given Royal Assent on 4 May and is now the Trade Union Act 2016. When it comes into force - and more on that later - it will make it harder for unions to take industrial action. However, a number of significant changes were made as the Bill went through Parliament that mean that its impact will be less draconian than anticipated.
For example, the four-month limit on the validity of an industrial action ballot has been extended to six months, with the possibility of an extension to nine months with the employer's agreement. This is a welcome change that will make it easier for a union to postpone a strike so that negotiations can take place without loss of the ability to resume action if the talks fail. The Bill also originally required the voting paper in an industrial action ballot to give a "reasonably detailed indication" of the matters in dispute. This had the potential to be a major obstacle for unions, as modern pay disputes are often highly complex and involve many different elements. The final version has been watered down somewhat to require just a "summary" of the dispute to be set out. This still has the potential to prompt litigation when the employer thinks the union's summary is not accurate or detailed enough, but the hurdle that the union has to clear is not as high as it was originally intended to be.
Meanwhile, public-sector employers will be pleased that the ban on check off in their sector (deducting the subscriptions of union members directly from their pay packets) will not apply to arrangements where the union pays the employer a reasonable rate for that service. The Government has also scaled back its powers to regulate the granting of paid time off to union officials in the public sector.
As for industrial action ballots, the need for a turnout of 50% remains in place, as does the additional requirement that at least 40% of those entitled to vote should vote "yes" in ballots affecting "important public services". The scope of this latter threshold has been limited, however, to make it clear that it applies only when the majority of those entitled to vote are directly engaged in - rather than ancillary to - the provision of those services. Action involving mainly support or back-office workers will have to meet only the general threshold of a 50% turnout. We still need regulations defining which services are subject to this requirement and this may be a controversial area. The need for regulations will also delay the point at which the new thresholds can come into force.
Potentially the most significant change in the Bill, however, was the acceptance by the Government of an independent review of electronic balloting. Currently all industrial action ballots must be conducted entirely by post with the ballot papers sent out to the homes of individual union members, who then post them to the independent body conducting the ballot. This is time consuming and expensive and tends to discourage a high turnout. Electronic balloting would be quick, cheap and much more likely to hit the turnout thresholds set out in the new Act.
The Government resisted amendments that would allow online ballots to replace the current postal system but was persuaded to amend the Bill to require it to commission an independent review, the report from which will be laid before both Houses of Parliament (s.4 of the Act). The Government's key concern is the security of the ballot, but given how much of our lives are now conducted online - including banking and paying taxes - it would be surprising if a sufficiently secure way of casting an online vote in an industrial action ballot could not be found. It should be remembered that industrial action ballots are conducted independently of the union and are subject to independent scrutiny, so safeguards are already in place to prevent the union from manipulating the outcome.
A cynic might question whether the Government is really committed to the review, or whether the amendment was accepted just to get the Bill passed and it has no intention of acting on it. However, speaking in Parliament, the employee relations minister Nick Boles seemed genuinely enthusiastic about finding a way forward. Indeed s.4 of the Act requires the Government to initiate the review within six months of the Act being passed. On that basis it should be commissioned by the end of the first week in November this year. While the Government is not bound to accept its recommendations, it would be difficult for it to ignore them altogether.
However, it is perhaps worth pointing out a potential loophole. In the passage of the Small Business, Enterprise and Employment Act 2015 the Government accepted an amendment requiring it to make regulations on gender pay gap reporting "no later than 12 months after the passing of this Act" (s.147). Some 15 months later the Government has consulted on the issue but the regulations have still not been formally made. How has the Government been able to disregard s.147 in this way? The answer is by the simple expedient of not bringing that provision into force. The provisions of most Acts of Parliament come into force only when they are brought in by a commencement order. The Small Business, Enterprise and Employment Act has been brought into force through five separate commencement orders - but none of them have included s.147. That provision remains in legislative limbo and the Government is not bound by it. Regulations on gender pay gap reporting are certainly on their way - but not to the timetable Parliament specified.
There is no reason to believe that the Government intends a similar circumvention with respect to a review of electronic balloting. However, it might be worth having a careful look at the commencement orders when they start to come in. Section 4 should be brought into force by the first commencement order. If it is not, the Government's commitment to finding a fair and secure way of conducting online industrial action ballots will be open to question.
