The Trade Union Act 2016 (Commencement No. 3 and Transitional) Regulations 2017 SI 2017/139 have been made, confirming that the major provisions of the Trade Union Act 2016 will come into force on 1 March 2017.
A reminder: what the law will change
The Act makes significant changes to the formal requirements that must be complied with if industrial action is to be lawful.
We initially reported on the key elements of the legislation here. Briefly, the main points are:
- All ballots for industrial action are only valid if 50% of those entitled to vote do so
- In certain important public services, there is an additional requirement that 40% of those entitled to vote must vote in favour of the action
- The voting paper must include a summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates
- 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)
- The voting paper 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
- All employees entitled to vote must be given key information on the results of the ballot
- Notification of industrial action will be 14 days- or 7 if agreed with the employer
- The ballot is valid only for 6 months- or 9 months if agreed with the employer
- Introduction of a requirement to report to the Certification Officer on industrial action and political expenditure, and enforcement powers by the Certification Officer in relation to these requirements
- A number of measures are being introduced to tackle intimidation of those willing to work and controls for picket lines
The changes require substantial re-writing of the relevant codes of practice and guidance. As the code relating to picketing is to become binding, it will be even more important. Progress on the re-writing is being made and EEF is playing an important role in setting out how things will work in practice.
Whatever happened to the agency worker change?
In its manifesto in the run up to the 2015 general election, the Conservative party promised to end the "nonsensical restrictions" which prevent employers using agency labour to cover industrial action. A consultation period was launched last July, and responses from the Government were due in October 2016. However, nothing has been seen on this proposal since, and we are not aware of any immediate plans for it to be addressed. So, for now at least, it’s "as you were"….
So, what do the changes mean?
The Act may set a more rigid framework for industrial action, but it doesn’t eliminate it as an option. Unions will adapt to the new environment. Employers should too. The new law may make the whole industrial dispute process more formal and more rigid. Employers should be mindful that unions may feel they have to adopt certain strategies and tactics earlier than they would have done previously, because of the shorter mandate for industrial action from a formal ballot.
For example, it is possible that unions will feel obliged to offer all potential industrial action options on the ballot paper. The time restrictions may mean that it becomes more difficult for a union official to delay the beginning of action, and the more rigid framework may reduce scope for the unions to be flexible as the dispute develops. And, of course, the introduction of thresholds will result in increased union activity up to and during the ballot.
Employers should keep an eye out for our email alerts when the new codes are published. We will be looking to roll out some practical workshops at that time.
If you find yourselves in the unfortunate situation of a dispute escalation, speak to your EEF adviser or contact our national team, who will be happy to assist in any way we can.
We need to maintain our relationships with the unions. The legislation is not a silver bullet to end disputes, and history suggests that litigation and legislation are not always the answer. In industrial relations in particular, our advice is to continue to forge meaningful relationships based on mutual trust and interests. In a post Brexit world, our aims are more alike than they are different. Keep talking!
To find out how our Employee Relations experts can support your business, speak to your EEF advisor, call 0808 168 5874 or email HRenquire@eef.org.uk