Strikes bill meets tough opposition from the House of Lords

Wales and Scotland reject government’s public sector measures and unions threaten legal action

Industrial action is unlawful unless the trade union organising it complies with certain statutory requirements, including balloting conditions.

The government’s Trade Union Bill proposes to tighten these rules. The legislation passed through the House of Commons last year largely unchanged, despite heated arguments from opposing political parties. In particular, both the Scottish Parliament and the National Assembly for Wales objected to the bill and wanted amendments, such as making it not apply to the public sector in those countries, all of which were resisted by the government. But the bill has now encounteredstrong opposition in the House of Lords, resulting in a number of government amendments to appease opponents.

In its original form the bill introduced:

  • a new 50 per cent threshold for voter turnout
  • an additional 40 per cent support threshold for ‘important public services’ including  some health, education, fire, transport, nuclear and border services.

Other measures include:

  • tighter union supervision of picketing
  • longer advance notice of strikes
  • changing the ballot paper
  • requiring the re-balloting of members with ongoing disputes
  • banning public sector check-off arrangements
  • increasing the transparency of public sector time off for trade union duties (known as facility time)
  • extending the powers of the Certification Officer (responsible for unions’ compliance with their statutory requirements).

The government has also said it will remove the ban on employers hiring agency staff to cover strikers.

The most recent government amendments include the 40 per cent support needed for ‘important public services’ ballots. Initially this covered ballots where the majority of workers are normally engaged in the provision of these services, including ancillary workers such as cleaners. Ancillary activities have now been removed. There is also now a ‘reasonable belief’ defence – if a union mistakenly breaches the 40 per cent requirement it will be protected from legal challenge, even if that belief later proves erroneous.

The bill initially required a ‘reasonably detailed indication’ of what the dispute was about on the ballot paper. This is now just a ‘summary’. The requirement for two weeks’ notice of industrial action may now be reduced to a week if the union and employer agree. The expiry of the ballot mandate after four months has been extended to six months, or up to nine months if both sides agree, to allow more time for a negotiated settlement, and picket supervisors will no longer have to wear a badge or armband to identify themselves – they simply have to wear ‘something’ that makes them readily identifiable.

The Lords made several amendments that were opposed by the government. They have inserted a new provision requiring the government to publish a strategy for the rollout of electronic voting during strike ballots – the government objects to this on security and confidentiality grounds. The Lords also deleted the provision that could be used to restrict public sector facility time.

The bill returns to the Lords on 19 April and more changes are anticipated. It is not clear how the government will respond. It may negotiate an agreement on some changes, for example, on e-voting (a change it has not rejected outright), but stand firm against others. Technically, the Lords should not oppose any government legislation promised in its election manifesto and trade union reforms did feature in the Conservative party’s manifesto. However, given the brevity of references to it and that some Tory peers and MPs disagree with aspects of the bill, it is likely that politics will decide the way forward.

Assuming the government and the Lords can reach agreement, the bill is likely to be become law this year and be phased in during 2016-17.

These ballot changes may result in more strategic balloting. Union leaders have warned of a resulting rise in alternative protests and wildcat action such as demonstrations and boycotts aimed not only at the employer but also its customers and suppliers, to ensure maximum pressure is exerted. Meanwhile, public sector employers are looking to the government for clarity over which roles are subject to the 40 per cent threshold. These employers also want more information on whether they are included in the facility time and check off changes.
The devolution arguments remain unresolved and the First Minister in Wales has threatened litigation. Some unions have also said they will fight the changes, once implemented, in the courts on human rights grounds. The effects of this bill will only become clear over time.

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