Reforming Trade Union law: what you told us

The Trade Union Bill will introduce new requirements for protected industrial action. The Government recently consulted on the details of the proposed…

The controversial Trade Union Bill, which is currently passing through the committee stage in the House of Commons, will introduce significant new requirements for protected industrial action. The Government recently consulted on the details of the proposed new measures. 

Some of the key measures proposed are: 

  • imposing a new threshold for ballots involving employees engaged in ‘important public services’;
  • tackling Intimidation of non-striking workers; and
  • lifting the ban on employers hiring agency workers to provide cover for employees taking part in industrial action. 

We would like to thank all who responded to our client surveys on the detail of these proposals. Your input was fascinating and enabled us to submit a detailed response to the Government which may shape future policy decisions. The issues at stake clearly elicit strong views within the HR community. Here’s what you told us. 

Important public services 

Under current law, a strike or other industrial action will be unlawful unless the union has carried out a postal ballot and a ‘simple’ majority (more than half) of the votes cast are in favour. It does not matter what proportion of those eligible to vote actually participate. 

The Government proposes that two additional thresholds must be met: 

  • in all cases at least 50% of those eligible to vote must do so (with more than half of the votes cast in favour); and 
  • as well as achieving 50% turnout, in cases where the majority of those eligible to vote work in ‘important public services’, at least 40% of those eligible to vote must vote in favour. 

For the purposes of this Bill the Government has defined ‘important public services’ as including fire, health, education, transport, border security and nuclear decommissioning. Respondents to our survey broadly felt that these categories were sensible and captured those services of most critical importance to public life. You overwhelmingly identified ‘protection against loss of life and serious injury’ and ‘maintenance of public safety and national security’ as the most important factors in deciding whether a service was of public importance and should be subject to more stringent ballot thresholds. 

You also made some helpful suggestions regarding additional sectors or occupations that might be added to the Government’s list. For example, respondents to our survey suggested that some road haulage workers, airport ground staff and employees involved in providing refuse and recycling services should also face tougher strike ballot requirements. 

Ancillary workers 

The Government intends to extend the 40% threshold to a wide variety of ancillary staff that support front-line employees to deliver important public services. 59% of respondent’s to our survey agreed with that approach (with a significant minority of 35% taking the opposing view). Those who agreed made the point that ancillary staff such as cleaners and caterers are often essential to service delivery and continuity and that their absence might in some cases pose serious risk (for example administrative and call-handling roles within the emergency services). 

Industrial action in the private sector 

The Government intends to apply the 40% threshold equally to both public and private sector staff that deliver important public services. 70% of respondents to our survey agreed that this was the correct approach. You felt strongly that no distinction should be made between public and private sector delivery in this context where the service being provided is deemed to be of public importance. Preserving continuity is the priority regardless of where and by whom work is undertaken.

Tackling intimidation of non-striking workers

The Government is keen to ‘clamp-down’ on the use of intimidating tactics during strike action. Thankfully, only a small number of respondents to our survey had directly experienced within their organisations intimidation of non-strikers by workers taking part in industrial action. However, those that had were able to provide valuable insight into the forms such intimidation might take. Specific examples given included intimidating ‘banter’ directed at employees attending work and dogs being brought onto the picket line. 

68% of respondents to our survey supported Government plans to approve transparency and accountability by requiring Trade Unions to publish their plans in relation to picketing and protests each time industrial action is called (for example where a protest will be held, how many employees will be involved and whether a social media campaign is planned). You also suggested that Unions should be obliged to provide details of how they anticipate the issue might be resolved to give employers every possible opportunity to resolve matters before industrial action takes place. 

Hiring agency staff during strike action 

The recruitment sector in the UK is regulated by the Conduct of Employment Agencies and Employment Businesses Regulations 2003. 

Currently Regulation 7 prohibits employment agencies from providing agency workers to cover the duties normally performed by an employee who is taking part in a strike or other industrial action (or the duties of any employee providing cover for a striking worker). However, the Government intends to remove Regulation 7 and allow employers to hire agency workers to cover industrial action. 

The vast majority of respondents to our survey felt that the removal of this restriction would have a positive impact both for ‘employment businesses’ (supplying staff for hire) and for employers facing industrial action in the workforce. 

76% of you agreed that ‘employment businesses’ would be positively impacted, citing an overall increase in demand for agency workers. The current barrier to supply would be removed allowing agencies to respond to a new type of demand. 

Similarly, 73% of respondents to our survey felt that hirers would benefit from the proposed changes, citing an ability to maintain production and service delivery during strike periods. You said that the removal of the ban on hiring agency workers during industrial action would enable more flexible and effective contingency planning to cover periods of disruption.

81% of respondents to our survey indicated that their organisations made use of agency workers during the normal course of business (as opposed to periods of strike action). 48% of respondents indicated that it was ‘very likely’ that they would take advantage of any relaxation of the rules in this area and engage agency workers during strike periods. A further 24% stated that they were ‘likely’ to do this.

However, some of you had real reservations about bringing in agency staff to provide cover. 27% of respondents to our survey stated that they were either ‘unlikely’ or ‘very unlikely’ to do this. Some of you feared that to do so might have an adverse impact on industrial relations and damage established relationships between employers and Trade Unions.

From a practical point of view many of you stated that the significant cost and management time involved in recruiting agency workers for short periods of industrial action might outweigh the benefits of sustained productivity. Others were worried that sourcing appropriately trained or skilled agency workers might prove an insurmountable barrier. 

You overwhelmingly agreed that the proposed change would impact negatively on employees taking part in industrial action, as the bargaining power of Trade Unions may be reduced and there might theoretically be a reduced incentive for employers to avoid industrial action. You also feared that employees might feel vulnerable if their roles were covered by temporary labour, leading to deterioration in employment relations. 

We will keep you updated on the progress of the Trade Union Bill and will let you know when and how any changes will come into effect.

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