With the new government rolling back key sections of the 1992 and 2016 Trade Union acts, some employers may be nervous about a potential power shift towards employees. But, finds Adam McCulloch, the newly launched consultation on the proposals puts the focus more on modernisation and streamlining processes than on absolute rights.
With the UK losing more days to strike action in 2022 and 2023 than in any year since 1989, and the Strikes (Minimum Service Levels) Act 2023 failing to prevent a single day of industrial action, many would agree with the government that a reset is needed in industrial relations.
To address the pressing need for better arrangements between unions and employers, ministers, until 3 December 2024, are consulting on changes to be introduced under the Employment Rights Bill.
The new industrial relations framework is based on four principles: collaboration, proportionality, accountability and balancing the interests of workers, employers and the public.
Whereas collaboration and balancing interests may be self-explanatory, the use of the word “proportionality” signifies that industrial action must be the last resort while employers must allow membership of unions unhindered.
“Accountability” implies that unions must remain accountable to their members, while employers must be accountable to their workers.
Among more specific measures the consultation is asking for views on are:
- a simplification in the amount of information unions are required to provide in industrial action notices
- the strengthening of provisions to prevent unfair practices during the trade union recognition process
- and a reduction of the industrial action notice period.
The Employment Rights Bill is repealing certain laws brought in by previous Conservative governments, for example, the requirement for 50% of eligible union members to cast a vote in ballots will be removed, having been introduced in the Trade Union Act 2016.
Although this measure may make it seem more likely to allow strikes, the government states: “We recognise that reverting to legislation which is nearly 30 years old may not reflect the requirements of a modern economy. Industrial action is expensive, disruptive, and always a last resort.”
Meaningful mandate
In terms of changes to the law, the government wants the consultation to fully inform it on “how we can ensure that trade unions have a meaningful mandate to support negotiations with employers and deliver effective dispute resolution”.
The 2016 Act also made the process of holding a ballot more complex. The Employment Rights Act will “significantly reduce the amount of information required to be contained in the voting paper and the amount of information required to be provided to the employer about the ballot result,” says the consultation.
The repeal of the 2016 measures is designed to help ensure that “both employer and union resources are devoted to resolving disputes, reduce pressure on the court system and reduce the scope for employers to challenge on a technicality industrial action that has democratic workplace support, more evenly distribute power in an industrial dispute and protect individual union members from identification.”
Simplification of process
However, views are sought by the consultation on the level of simplification and on the notice period for industrial action. As well as simplifying the information provided by unions to employers when preparing the ground for industrial action, there will be a modernisation of balloting, with email replacing the expensive process of postal ballots.
The government is also consulting on amending section 234 of the 1992 Act to extend the expiry of mandate for industrial action from six to 12 months. Negotiations between trade unions and employers can sometimes last longer than the existing six months expiration date, resulting in trade unions having to re-ballot their members which can be costly and time-consuming. Ministers believe a 12-month mandate expiry date would strike the correct balance between ensuring industrial action is based on a recent vote, while reducing the need for re-ballots.
Further changes are set to be made around the rules over unofficial strike action (“prior call”) and repudiation of industrial action (employers’ right to sue unions for damages over action), with the government asking for views on several proposed options.
Union recognition
On union recognition, the government is leaning towards preventing employers using unfair practices to influence the result of a ballot. It says it would like the scope of the Code of Practice on unfair practices in recognition ballots to be extended to include the entire recognition process from the point when the Central Arbitration Committee accepts the union’s application for statutory recognition. The consultation asks for views on this.
For Luke Bowery, partner at Burges Salmon, the “bulk of the changes we have detailed here are structural and procedural changes.” However, he adds, there is no doubting the new government’s vision is to give workers a stronger collective voice.
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