The Trade Union Act received Royal Assent on 4 May 2016 and is expected to be brought in force in during the summer, with implementing regulations being made over the following few months. The headline changes are well known: tougher thresholds for ballots, particularly for important public services, a time limit on a ballot's mandate for industrial action, and a doubling of the notice of action that employers must receive (to 14 days). The Act will also introduce more detailed rules on voting papers, picketing and various union rules. So what are the likely ramifications for HR practices in the UK?
The expressed purpose of the Act is to end ‘disruptive and undemocratic strike action’, so certainly the government is hoping that the immediate impact will be a reduction in strikes. The new ballot thresholds require that 50% of members entitled to vote in the industrial action ballot must vote, and, in certain important public services, 40% of members entitled to vote must support the industrial action. (These requirements are in addition to the current need for a majority of those voting to vote in favour of action.) According to research in 2015, just over half of strike ballots in the UK held between 1997 and 2015 would have met the 50% turnout threshold.
HR practices in unionised workplaces in the UK are likely to encounter changes in union/workforce behaviour:
- Unions may be more strategic when balloting their members, perhaps restricting ballots to specific locations or key job categories, where these would be more likely to meet the thresholds. HR may need to review their contingency plans in light of this.
- Unions may need to divert their resources to bolstering turnout and support rather than seeking settlement of disputes. If successful, they may have a stronger mandate to demand changes, so HR may need to anticipate and prepare for more entrenched disputes. This may be particularly relevant if the government's commitment in the Act to commission an independent review into e-balloting actually leads to its introduction: this should be cheaper for unions and may make it easier to ensure the required level of turnout and support.
- If unions are unable to garner sufficient support for strikes, they may resort to alternative action, such as leverage and media campaigns. For example, a mass refusal to work voluntary overtime could hit some businesses hard. It may also be an appropriate time to review employee policies in areas such as use of social media (given that this may provide the platform for alternative action). HR should assess the likely impact of this type of pressure on their business and ensure appropriate contingency plans are in place.
HR will also need to be aware of the possible impact of the time-limited ballot mandate on negotiation strategies. There will be less pressure on the union to start industrial action promptly. However, as the 6-month deadline approaches, the prospect of having to re-ballot may cause unions to prioritise action over negotiation, while employers may be reticent to engage in order to force a re-ballot.
A new requirement for a union to appoint a picket supervisor with specific responsibilities may provide additional opportunities for HR to consider challenging picketing as unlawful. HR should also review the promised update to the statutory Code of Practice, which will include guidance on the ‘responsible use of social media during industrial disputes’.
There will be a few administrative changes for HR practices in public sector businesses, as check-off deductions of union membership fees will only be permitted where arrangements have been made for the union to make reasonable payments to the employer for making the deductions (and the worker has the option to pay his/her subscriptions by other means). Regulations may also impose requirements on employers to publish information on, and potentially cap, facility time.
In terms of contingency planning for industrial action, there remains one area of uncertainty. Although not actually part of the Act, the government originally proposed repealing the ban on the use of agency workers during industrial disputes but has since gone quiet on the issue. Whether this will have significant implications for the effectiveness of strike action may depend on the nature of the business; for some employers it is likely to be difficult to source agency workers who are willing and have sufficient skills to perform key roles at short notice.
As a minimum, HR should now ensure that senior management is aware of the impending changes in the industrial relations landscape and consequent risks. These include the risk of being caught up in legal challenges to the rules; some unions have announced their intention to challenge them on the basis that their cumulative effect infringes the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights. It may be that the Act is short-lived even if it survives legal challenge, given that Jeremy Corbyn has pledged that Labour will repeal the Act should it form the next government in 2020.