Guide to the Trade Union Bill 2015 --- Nottingham Trade Union Forum

Guide to the Trade Union Bill 2015 Scope This guide draws on the Trade Union Bill 2015-16, as presented to Parliament on 15th July 2015 as first reading, so the detail is likely to change during the progress of its enactment which is likely to be in 2016. The Bill constitutes a revision of existing legislation: Trade Union and Labour Relations (Consolidation) Act 1992. This also draws from three consultation documents: 

Trade Union Bill: Consultation on Tackling Intimidation of Non-Striking Workers, .

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Trade Union Reform: Consultation on Ballot Thresholds in Important Public Services, .

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Hiring Agency Staff During Strike Action: Reforming Regulation

(The Bill, and the consultation documents, are available from http://services.parliament.uk/bills/201516/tradeunion.html)

Balloting The UK has no ‘right to strike’, but since 1906 has allowed trade unions legal exemptions for lawful industrial action. Since the Thatcher

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legislation of the 1980s, in order to avoid the possibility of legal action by an employer the union is required to carry out a ballot of members potentially involved in the industrial action. According to the proposed Bill the union is required to hold a ballot “in which at least 50% of those who were entitled to vote in the ballot did so”. Further for ‘important public services’, the “additional requirement is that at least 40% of those who were entitled to vote in the ballot answered “Yes” to the question.” o “important public services” defined as (a) health services; (b) education of those aged under 17; (c) fire services; (d) transport services; (e) decommissioning of nuclear installations and management of radioactive waste and spent fuel; (f) border security o This is a much wider definition than usual in such legislation internationally, which usually only refers to emergency services. As well as making the balloting process more difficult far more is required on an industrial action ballot than currently. According to the Bill: Information to be included on voting paper o … must include a reasonably detailed indication of the matter or matters in issue in the trade dispute to which the proposed industrial action relates. o Where the voting paper contains a question about taking part in industrial action short of a strike, the type or types of industrial action must be specified (either in the question itself or elsewhere on the voting paper). o … must indicate the period or periods within which the industrial action or, as the case may be, each type of industrial action is expected to take place. Having achieved the required votes in the industrial action ballot the union is then required to give two weeks notice to employers of the industrial action. The ballot mandates for industrial action ceases after four months when a new ballot would be required for any further industrial action.

Guide to the Trade Union Bill 2015 --- Nottingham Trade Union Forum

Picketing According to the Bill, picketing means “attendance at or near a place of work, in contemplation or furtherance of a trade dispute, for the purpose of— o obtaining or communicating information, or o persuading any person to work or abstain from working.” This will only be legal when it is in association with industrial action where there has been a ballot in accordance with the Bill. The Bill introduces strict additions to the current Code of Practice on Picketing, which already excludes ‘secondary picketing’ and limits the number of pickets at any site to six. The new provisions are:  The union must appoint a person to supervise the picketing.  That person (“the picket supervisor") must be an official or other member of the union who is familiar with any provisions of a Code of Practice … that deal with picketing.  The union or picket supervisor must take reasonable steps to tell the police — o the picket supervisor’s name; o where the picketing will be taking place; o how to contact the picket supervisor.  The union must provide the picket supervisor with a letter stating that: he or she is authorised by the union to act as such.  The picket supervisor must show the letter of authorisation— o to any constable who asks to see it; o to any other person who reasonably asks to see it. 

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While the picketing is taking place, the picket supervisor must— o be present where it is taking place, or o be readily contactable by the union and the police, and able to attend at short notice. While present where the picketing is taking place, the picket supervisor must -2-

wear a badge, armband or other item that readily identifies the picket supervisor as such. The Bill is likely to place considerably more limits on the union engaged in industrial action where it will be required to:  Specifying when (it) is intending to hold a protest or picket  Where it will be  How many people it will involve  Confirmation that people have been informed of the strategy  Whether there will be loudspeakers, props, banners etc.  Whether it will be using social media, specifically Facebook, Twitter, blogs, setting up websites and what those blogs and websites will set out  Whether other unions are involved and the steps to liaise closely with those unions  That the union has informed members of the relevant laws One of the purposes of the picketing regulations contained is the challenge to what has been called ‘leverage’ tactics: Any form of demonstration in relation to an industrial dispute that takes place away from the workplace, is classified as a protest regardless of its size or whether or not it is intended to encourage workers to go on strike (and therefore breach their contract). (Trade Union Bill: Consultation on Tackling Intimidation of NonStriking Workers) These were the subject of the Carr Report (The Report of the Independent Review of the Law Governing Industrial Disputes: A Report From Bruce Carr Qc to Government) which – as in fact the consultation notes – could not substantiate the accusation of the use of such intimidation during industrial disputes. However there is a strong threat in the consultation paper to the protests which have become common in recent disputes usually involving agency workers in low

Guide to the Trade Union Bill 2015 --- Nottingham Trade Union Forum

paid insecure employment. It equates this to ‘anti-social behaviour’ and suggests potential criminal sanctions against pickets and protestors during industrial action. Potentially relevant are new powers for the police and local authorities in relation to anti-social behaviour. As part of the Anti-Social Behaviour, Crime and Policing Act 2014, the police were provided with a new dispersal power. This allows an officer (or in some cases, a Police Community Support Officer) to disperse any individual acting in a way that is causing or is likely to cause harassment, alarm or distress. This can be used in any area designated by a senior officer and is intended to be preventative as it allows an officer to deal instantly with someone's behaviour and nip the problem in the bud before it escalates.

Use of agency workers during strikes In their election manifesto the Conservatives promised that they would “… repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”. The repeal of the regulation does not appear explicitly in the Bill but is the topic of one of the consultation documents where this is presented as a means of substantially ameliorating the impact of strikes, particularly drawing on the example of education. strikes in important public services such as education will mean that some parents of school age children will need to -3-

look after their children rather than go to work because some schools would not be able to fulfil their duty of care for their pupils during the strike. This would also have a negative impact on some employers of the parents affected, whose workforce and productivity would be affected. The consultation is an impact assessment, designed to indicate how much this measure will allow continued working rather than challenge the very efficacy of such a move. The consultation estimates that: a quarter of the pool of temporary agency workers would be available for a placement at short-notice to provide cover for workers taking industrial action. … (assuming) … between 17% and 27% of working days lost due to industrial action will potentially be covered by temporary agency workers, based on the limit of availability of suitable temporary agency workers, and the fact that some stoppages involve a large number of workers on a particular day. Facilities time While there is no direct challenge to time for union duties the Minister ‘may require publication’ of the time allocated to trade union officials (which includes learning and safety reps within the notion of ‘officer’) within any public authority. In circumstances which can be defined by the Minister the time at any public authority may be limited. (a) how many of an employer’s employees are relevant union officials, or relevant union officials within specified categories; (b) the total amount spent by an employer in a specified period on paying relevant union officials for facility time, or for specified categories of facility time; (c) the percentage of an employer’s total pay bill for a specified period spent on paying relevant union officials for facility time, or for specified categories of facility time; (d) the percentage of the aggregate amount of facility time taken by an employer’s

Guide to the Trade Union Bill 2015 --- Nottingham Trade Union Forum

relevant union officials in a specified period that was attributable to specified categories of duties or activities; (e) information relating to facilities provided by an employer for use by relevant union officials in connection with facility time.

(b) relieve members who are not contributors from the payment of the appropriate portion of any periodical contribution required from members towards the expenses of the union. This does not just impact on Labour Party membership but all campaigning activity of the union. The Bill requires the union to report to the Certification Officer, in its annual returns, details of all political expenditure above £2,000. This can be expenditure for any political purposes, which is likely to cover the range of union campaigning activity and donations to or membership of other organisations.

Political Fund As in the past a trade union is been required to ballot its members to establish a political fund, although this is now required to be at five year intervals rather than the current ten years. However the establishment of a political fund does not mean funds can automatically be transferred. The Bill makes it illegal to make member deductions for a political fund if “the member has not given to the union notice in writing of the member’s willingness to contribute to that fund (an “optin notice”)”. A union that has a political fund must either— (a) make a separate levy of contributions to that fund from the members who are contributors, or

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Certification Officer The main role of the Certification Officer has been the registration of trade unions and employers associations. Trade unions have been allowed certain immunities in ‘lawful’ industrial action. However this Bill expands dramatically the amount of information required of a trade union in its annual report to the Certification Officer – covering industrial action and political funds – and also expands its powers. While in the past it received complaints concerning the activities of unions, the aim of the Bill is to turn the Certification Officer into a proactive enforcer of their activities. Drawn up by Alan Tuckman, for the Nottingham Trade Union Forum, July 2015

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