Some have called it an "attack on workers' rights", others have defended the plans - either way, the government's proposals to impose a minimum turnout of 50 per cent has left employers scratching their heads. Here's everything you need to know about the Trade Union Bill.
Explain the new threshold rules
Under the existing rules, if 100 members are balloted and only five vote and three vote yes and two vote no, there is a valid mandate for strike action.
Under the new rules, if 100 members are balloted then at least 50 must vote, of which 26 must have voted yes and a smaller number voted no, for there to be a valid mandate.
However, if the employer is providing a specified key public service, such as transport or education, then in addition to the requirement that at least 50 of the 100 members balloted must vote, at least 40 must vote yes, and fewer than 40 vote no, for there to be a valid mandate.
The definition of what constitutes a "key service" is potentially trickier - you need to define:
- What is an "essential service", eg. which types of transport are included – presumably rail, bus, tram and tube; but what about river boats; airlines; or passenger ferries?
- Whether the 40 per cent threshold only applies to front line operational workers in those sectors, or also to support workers such as engineers or human resources
- What happens if there is an aggregated ballot across different employers or different types of worker
What impact will these rules have?
Many recent strikes would have met the proposed new threshold and so would have remained lawful under the proposed law. One recent exception would have been the January 2015 London bus strikes.
It is possible the changes will encourage more union members to vote, and therefore if there is a “yes” vote for industrial action then the union’s mandate will be stronger.
It is also possible unions will in future be more careful about defining the constituency for the ballot – they may be tempted to hold more localised ballots or to ballot only members working in key grades.
Other consequences might include unions using more “soft power” in the form of organising protests or corporate campaigns, which is increasingly prevalent following the development of social media – a good example is Unite’s Leverage strategy.
Why are these rules being introduced?
It appears the government’s concern is that the rights of people to access essential public services in order to lead their lives should not be disrupted unless there is a reasonable turnout and support for the action.
Under the current law the union can secure a mandate on a low turnout and, having secured that mandate, it can then deploy pickets to persuade those who didn’t vote or who voted “no” to industrial action not to cross the picket line, and so in effect a small minority can exert their will over the majority of the workforce.
Can the new rules be challenged?
It is possible unions might challenge the new rules by arguing they comprise an unjustifiable interference with the right to freedom of association, as guaranteed by Article 11 of the European Convention on Human Rights.
It's possible also unions will sidestep the rules by pursing other tactics.
What about the rules allowing the use of agency workers?
Currently it is a criminal offence for an agency to supply agency staff to do the work of a striker. However, it is already lawful for the employer to use directly employed temporary staff.
Query if this change will have much impact – employers of specialist workers cannot easily replace them with agency staff, as those workers (such as train drivers) take months to train; and employers of unskilled workers can’t usually access sufficient numbers in a short space of time to cover the strikers.
What about the four-month limit to the ballot mandate?
Currently there is no limit to the mandate – it lasts as long as the dispute remains live.
However, most disputes are resolved within four months, and if they aren't, often it's because the dispute has morphed into a dispute over something else, such as the sanctions applied by the employer.
Unions often want to re-ballot anyway after 12 weeks to retain the protection against unfair dismissal.
What about the need to describe the dispute clearly on the voting paper?
Currently (and perhaps surprisingly) there's no need for a union to describe the dispute on the voting paper, which can cause uncertainty in the minds of members about the nature and extent of the dispute on which they're voting.
It remains to be seen whether “catch all” wording can be added to the defined dispute to allow unions some wriggle room to preserve their mandate if the dispute develops.
Restrictions on pickets?
This is an emotive area. The law governing pickets is complex. Picketing is already governed by a code of practice.
Historically the police and the courts have been very slow to intervene to restrain picketing, even when the numbers vastly exceed the limit of six suggested in the code of practice.
In a democratic society people must be allowed freedom of assembly and to protest - but there's a thin line between picketing and protest. If industrial action is lawful then the union is allowed to organise a picket for up to 6 employees to picket their workplace for the purpose of peacefully persuading people not to work.
Anything that takes place elsewhere isn’t a picket – it is a protest.
Pickets are already subject to the law on harassment, and related areas, and are also subject to an employer’s code of conduct.
The law already protects union members from detrimental treatment by their union if they want to work during a strike.
What impact will these changes have on business generally?
They are likely to have little direct impact on most businesses as only a small minority of private sector companies now have a unionised workforce. Further, the incidence of strikes in the private sector (apart from companies providing legacy public sector services such as transport) is very low.
To the extent that the new thresholds reduce the number of mandates for strike action, there is a chance there will be fewer strikes in key public services such as transport. So for the wider economy there may be fewer strikes and so less interruption of people getting to work.
For businesses providing those services the new rules will have a direct impact and may limit strikes to disputes over which the workforce has a deep grievance.