Law of unintended consequences
The battle lines are drawn over proposed changes to union legislation. But what will they mean? Alan Delaney offers some answers
WITH consultation on the Government’s proposed changes to trade union legislation now closed, how might they affect employers and trade unions?
What are the main changes in the proposed trade union legislation? The biggest is undoubtedly the proposal that a ballot for industrial action must achieve over 50 per cent turnout of those eligible to vote in order to be valid. If that measure is satisfied, a simple majority of those voting will be sufficient to authorise industrial action providing it does not involve an “important public service”. For those working in an “important public service”, a further hurdle is proposed: over 40 per cent of those eligible to vote in the ballot must also vote in favour.
What will constitute an “important public service”? This is defined very widely and includes those working in health, transport, education of those under 17, fire, border security and nuclear decommissioning. It extends beyond the public sector to private sector companies providing such services, although as it stands, this requires further clarification.
Are any other changes proposed? There are also changes proposed to the ballot paper requiring trade unions to specify the type of industrial action to be taken, when and for how long it would take place and giving details as to the nature of the dispute. Other key aspects of the proposals include lifting the current ban on using agency staff to cover for striking workers and also tackling intimidation of non-striking workers. What notice will employers receive of industrial action? At the moment trade unions must give at least seven days’ notice of industrial action. Under the proposals, this requirement will move to a minimum 14 days. In addition, the action would then have to be taken within four months of the ballot.
Will the proposals have a significant impact? If introduced, yes. At the moment, all that is required to authorise industrial action is a simple majority of those voting. The new requirements may well set the bar so high that in practice, lawful industrial action will rarely be seen, unless it has overwhelming support.
Have the proposals been welcomed? The battle lines have been drawn across predictable lines. The CBI has welcomed the proposals as modernising industrial relations and ensuring industrial action has the support of the workforce. The TUC is firmly opposed to the measures, which it says will make it far more difficult for millions of workers to collectively organise to defend their jobs and working lives. However, the Government may well be surprised at the criticism of the proposals from some quarters. The Chartered Institute of Personnel and Development called the proposals an “outdated response” to “yesterday’s problems” given the reduction in the number of days lost to strike action – down 90 per cent over the last 20 years – and said the measures could prove “counter-productive”.
How might trade unions and employers be impacted? For trade unions, it would be important to pick and choose their battles carefully, given the need to mobilise support and encourage a strong turnout from its members impacted by a dispute. One approach might be to increasingly look at selective
local disputes within smaller pockets of workers (rather than national level campaigns), where unions would be more confident of satisfying the requirements. If that were to take place, the number of disputes overall could well rise and generate more rather than less issues for employers. It also seems highly possible that if the bar is set too high to take lawful action, that we will see more instances of unofficial or unprotected industrial action being taken, which at the moment tends to be exceptional. This surely would not be in the interests of unions, employers or the general public. On a separate but related point, given the demonstrated effectiveness of social media campaigning, we can expect to see an increasing focus by both sides of a dispute in using such platforms to get their messages across. What happens next? The consultation on these proposals ended on 9 September 2015. We can expect the Government to consider the responses they have received and bring forward legislation shortly, which despite the Government’s majority, is sure to generate a bumpy and controversial ride through Westminster and may well lead to further calls for such issues to be devolved to the Scottish Parliament.
Alan Delaney, a director in the Employment and Pensions team at Maclay Murray & Spens LLP
If the bar is set too high to take lawful action, it seems likely we will see more unofficial industrial action