Here Comes the Trade Union Act 2016 (but is time running out for the union movement?)

DSCN0519So, the Trade Union Act slunk onto the Statute Book on 5th May. We now know what it says, but do we know what it means?

The short answer is “sort of”, but it’s very close to “not really”…

What we do know is that among other things:

  • any industrial action needs to follow a ballot with a minimum 50% turnout
  • ballot papers must make clear the dispute and the action proposed
  • 14 days notice of specific action must be given to employers
  • in “important public services” ballots must also be supported by at least 40% of eligible voters

We don’t actually know as yet when the provisions will come into force, but there are several other uncertainties at this stage as well.  For example, it has yet to be defined which public services are deemed “important”, though we can probably predict that it will include Health and Education.  Furthermore, as with all laws, the final impact will be shaped by cases that go through the courts so, with questions remaining on the impact of this legislation on workers’ human rights, there may be uncertainty for some time.

What is clear is that the impact in the devolved administrations will, for the foreseeable future, be minimal as the Governments in Scotland, Northern Ireland and Wales have all said that they won’t be implementing the provisions of the Act. So what can we expect to see in England?

Well, the intention behind the Act is clearly stated as making it more difficult for trade unions to take legal industrial action, particularly in what are being called “important public services”. This seems to have been a response to disputes in recent years where some unions have proceeded to industrial action with significantly lower turnout than is now being demanded.  A collective breath of relief will have been taken amongst all unions that the threat to allow employers to hire agency staff to complete strikers’ work was dropped from the final legislation.

The Government has recently taken a bloody nose in relation to it’s plan to do away with “check-off”, the mechanism by which union subscriptions are paid direct from people’s salaries, in spite of that system having little or no cost for employers.  Having now established through the courts that DWP’s implementation of that approach was unlawful, the Government now risks claims for compensation from the unions that have been affected.

The unions had responded through consultation on the Trade Union Bill that it was unreasonable to dictate the levels of turnout while the Government insisted that they continue to conduct ballots by paper and post.  In that context, it’s interesting to note the concession that there will now be an independent review of electronic balloting.  In spite of that, it is also worth highlighting that there have been many troublesome disputes, notably the ongoing one with Junior Doctors in England, where the turnout has significantly exceeded those imposed by the new strictures.

Given that, it remains the best approach for employers, especially those who are not bound by Government instruction, to work with their staff, including the unions where they are present, to make sure they avoid the dispute in the first place.

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