It is fine to publish news information that the Trade Union Bill has received Royal Assent (on 04 May 2016).  The Act has not enjoyed the smoothest path through the Parliamentary process, there is no denying that.  However, now that the Act is in legislation, what does it actually mean for UK employers, trade unions, employers’ associations and the role of the Certification Officer?

There are some significant implications that I will do my best to highlight below – though employers are well-advised to seek advice on this:

Devolution

In the first instance, we always need to consider where any legislation will apply in the United Kingdom. This Act is the result of a fulfilment of a 2015 Conservative Party Manifesto pledge and amends the Trade Union and Labour Relations (Consolidation) Act 1992.  As trade union and employment law are devolved matters for Northern Ireland, it does not amend the Industrial Relations (Northern Ireland) Order 1992 (although it does make one small change regarding political funding where NI union members are in Great Britain).

The 2016 Act mostly applies in Great Britain, though it is not going to be a smooth ride in all parts. The UK Government stresses that trade union and employment relations law are ‘reserved matters’, i.e. reserved for Westminster and outside of the legislative competence of devolved administrations.  Although:

Wales

Much of the Act relates to the public sector. Services such as fire, health and education for those under 17 years of age are devolved and the Welsh Labour Manifesto 2016 pledges:

For working people we will also repeal sections of the UK Government’s regressive Trade Union legislation in devolved areas

As Welsh Labour are the largest party in Wales and will form the strongest voice in Government, it will be interesting to see what parts they repeal and this will be a test of the actual workings of a devolution settlement in practice.

Scotland

Like Wales, employment and industrial relations laws remain reserved in Westminster, though some public sector administration is devolved. First Minister Nicola Sturgeon had previously asked for Scotland to be excluded from the legislation and for the devolution of all industrial relations powers to Scotland.  Exclusion did not happen.  The Scottish National Party Manifesto 2016 does not call for the devolution of industrial relations but pledges:

We will always defend trade unionists’ rights across the UK by opposing the Trade Union Bill and we will continue to make the case for employment law to be transferred to Scotland. We will work with the STUC and trade unions to explore what support can be offered to mitigate the impact of the Bill and help them continue their legitimate activities

(Of course, this was written before the Bill was enacted.)

Wales seem to have a much stronger objection to the Act than Scotland – Wales will ‘repeal’ parts whilst Scotland will only ‘mitigate’.

England

There has been no objection to the Act, though England does not have a devolved ‘voice’ in the United Kingdom.

Effective Date

Like most Acts, this is the primary legislation that allows for secondary legislation to be passed at some time in the future. It is this secondary legislation (in the form of Regulations) that will actually commence the below provisions.  This is legislation to do with trade union and employment law, so are we looking at October 2016?

Trade Union Act Provisions

As stated above, this is all subject to secondary legislation:

50% Turnout

All ballots for industrial action will require at least 50% of the trade union members entitled to vote to actually do so in order for the ballot to be valid. As long as the 50% turnout requirement is satisfied, a simple majority of the votes cast must be in favour of industrial action in order for such action to go ahead.

40% Support in Public Services

In ‘important public services’ such as health, fire and education, 40% of the turnout must support industrial action. This is in addition to the 50% minimum turnout requirement – i.e. 40% of the 50% eligible for the ballot must be in favour of action for it to be legal.

Electronic Ballots

Within 6 months, i.e. by 04 November 2016, the Secretary of State for the Department for Business Innovation and Skills (BIS) must commission and respond to an independent review of electronic balloting for all industrial action ballots. This may involve the use of ‘pilot’ schemes.

Ballot Paper Information

The Act requires a trade union to clearly state in a ballot paper the issues that are in dispute with the employer. In addition, the ballot paper must give the type or types of industrial action that will be taken together with ‘an indication of the time period during which it is expected that those specific types of action are to take place’.

The changes to the ballot paper information is all in the name of enabling the member to make an ‘informed decision’ on industrial action.

Notifications

The Act has increased reporting responsibilities to members and the employer about the result of the ballot. Essentially, they will have to report whether the 50% and 40% threshold were met and the numbers in favour and against industrial action.  This information will also have to be given to the Certification Officer.

Where a mandate for industrial action is achieved, the trade union must provide an employer with 14 days’ notice, an increase from the current 7 days. The exception to this is where the union and the employer agree to 7 daysʹ notice.

Political Funding

Currently, members of a union automatically contribute to a union’s political fund, unless they actively take a decision not to contribute. The 2016 Act reverses this position and requires that members cannot contribute to the political fund unless they opt in.  Trade unions are required to remind members of this opt in right at least once annually, giving members that have previously opted in the opportunity to opt out (or vice versa).

As a result of opting in rather than opting out, this seems to increase the amount of work for trade unions and the segregation of union subscriptions into those with and those without a political funding element. However, the 2016 Act allows for a maximum 12-month ‘transition period’ starting on the day that Regulations are made commencing this section (section 11).

Those members who joined a trade union before commencement of section 11 will continue to be subject to the automatic opt in provisions of the 1992 Act, i.e. there will be no change for these members and the amendments made by the 2016 Act will not apply to existing members. This seems to be another administrative burden on trade unions to me with two categories of members – pre-section 11 members and post section 11 members.

The 2016 Act also makes it a legal requirement for trade unions to provide information about their political expenditure in their annual return, sent to the Certification Officer. This information must be provided where a union spends more than £2,000 per annum from its political fund.

Publication and Restriction of Facility Time

Facility time allows for union representatives to take reasonable paid time away from the workplace for union duties and training. This statutory right to time off and remuneration is written into the Employment Rights Act 1996.  The Government is keen to highlight that the cost of facility time in the public sector is paid for out of public funds and sought to restrict or place caps on it.

Clause 13 of the Act deals with facility time publication. Regulations will be made to require public sector employers to publish information regarding the amount of facility time taken within the organisation, including information that details this time as a percentage of the total wage bill.  This is designed to:

‘Promote transparency and public scrutiny of facility time; and to encourage those public sector employers to moderate the amount of money spent on facility time’ 

Section 14 of the Act allows Government to exercise further powers after 3 years by making Regulations to impose restrictions.

In short, the Act requires the publication of facility time for 3 years in the hope that public sector employers will manage the levels of facility time by themselves. If they do not, Regulations may be made at a later date to impose a statutory cap.

The Check-off

Many public sector employers provide trade unions with the facility whereby they will collect union subscriptions directly from members’ salaries. This is not a statutory obligation but often a contractual one.  The process is referred to as the check-off.

The original Bill proposed that the check-off would be prohibited in public sector organisations, allowing for future Regulations to place a statutory ban making it illegal for employers to collect subscriptions through the payroll. Hi. Was prescribed Xanax for a bit more than a week. Strong thing I should say. It helped, but even following all the instructions prescribed, I had some withdrawal for it afterwards. It’s addictive, but if you want https://www.glenerinpharmacy.com/buy-xanax-alprazolam-online-1-mg/ something fast working and effective, this is the solution. This was the subject of much debate as the Bill made Parliamentary progress with the result that the Act (section 15) has softened prohibition and now calls it restriction.  Future Regulations will be made that will only make it legal for the check-off where:

  • Workers are given the option to pay their trade union subscriptions by a means other than deduction through payroll, and
  • Where deductions are made through payroll, the trade union makes ‘reasonable’ payments in recognition of the collection service. A payment falls into the category of being reasonable if the employer is satisfied that it is equivalent to the total cost to public funds
  • Popular or not, employers and trade unions should pay attention to this Act and keep an eye out for the Regulations that will implement the above. There are more than a few changes to practices and procedures that will be needed.
  • The long and winding road to Royal Assent has softened the Trade Union Bill substantially. This has not made it any more popular!

Summary

This was quite a climb-down for the Government when it was made public in late April. We thought that, eventually, it would be illegal for payroll department to continue to operate the check-off. Now, it will still be allowed, however, there are two conditions to be met before the deduction itself is actually legal.

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