The Trade Union Act 2016: what is changing?

UPDATE

Since this blog was written, regulations have been published defining what is meant by 'important public services'. These come into force on 1 March 2017 or, if later, 21 days after they are approved by Parliament.

An independent review, commissioned by the government, is taking place into electronic balloting for industrial action ballots - to report to Parliament no later than December 2017.

The Trade Union Act 2016 was passed on 4 May 2016. A key element of the reform is that industrial action will be lawful only when there has been a ballot turnout of at least 50%.

We don't yet know but expect the majority of the provisions to come into force later this year, with some delayed into the start of 2017.

The main changes are:

• In all industrial action ballots, at least 50% of those entitled to vote must do so and a simple majority must be in favour of action. So, if 100 members are balloted, at least 50 must vote. If 50 vote, at least 26 must vote yes for there to be a valid mandate. If all 100 vote, 51 would need to vote in favour.
• If the majority of those entitled to vote are 'normally engaged' in the provision of 'important public services' (specified health, education, transport, border security and fire-fighting services) at least 40% of those entitled to vote must vote in favour of action (in addition to the 50% turnout threshold). So, if 100 members are balloted, a minimum of 50 must vote and at least 40 must vote yes for there to be a valid mandate. A simple majority is still required in all ballots, so if all 100 members had voted, then 51 votes in favour would be required to enable action.
• Unions will have to include additional information in ballot papers, including a clearer description of the trade dispute and the planned industrial action, so that workers know exactly what they are voting for.
• Unions will have to give 14 days' notice of any industrial action (unless the employer agrees that 7 days' notice is enough). The current requirement is to give 7 days' notice.
• Currently, industrial action must take place within 4 weeks of the date the ballot closed, unless the union and employer agree to extend it to up to 8 weeks. The Act provides instead that ballot mandates will expire after 6 months (or 9 months if the employer agrees). After this time, the union will need to seek a new ballot for any proposed industrial action.
• For employers in the public sector (and some private sector employers that provide public services), 'check-off' (i.e. the deduction of trade union membership subscriptions via payroll) will only be permitted if the worker can pay its subscriptions by other means (such as direct debit) and the union contributes to the cost of administering the system.
• Some of the current Code of Practice on picketing has been given statutory force e.g. the requirement to appoint a picket supervisor.
• A new transparent process for trade union subscriptions is being introduced that allows new members to make an active choice about whether to pay into political funds. Information on opting out from such contributions will need to be provided on an annual basis.
• Employers in the public sector (and some private sector employers that provide public services) will have to publish information on 'facility time' such as the amount of paid time off for union duties and activities. The Act also allows the government to issue regulations restricting facility time at particular employers.
• The government must commission an independent review of possible methods of electronic balloting, although the Act does not include any commitment to its introduction.
• There will be new powers for the Certification Officer to investigate and take enforcement action against trade unions for breaches of their statutory duties.

The proposal to repeal the ban on using agency workers to replace striking workers is not contained in the Act. There has been no update on whether and when this change might happen.

The devolved governments in Scotland and Wales previously made it clear that they were strongly opposed to the Act. However, trade union law is not devolved and the Act is set to apply equally in Scotland, England and Wales.

Users of Workbox, the employment team's online HR site,can access detailed information about trade unions in the Employee Relations section of the site. There are answers to a host of practical questions on union recognition, collective bargaining and industrial action. Contact us or speak to your usual Brodies' contact to discuss a free trial or subscription options.