Our thoughts on the world of employment law - and beyond.

Trade Union Bill

The Government plans to reform strike law, so that the right to strike is "fairly balanced" with the right of people to be able to go about their daily lives to work.  On certain points there will be public consultation open until 9 September; not a long period during the holiday season. 

The Trade Union Bill, published on Wednesday, proposes the following changes:

  • the turnout in any industrial action ballot must be 50% of those entitled to vote if the industrial action is to be lawful;
  • "important public services" at least 40% of those entitled to vote must be in favour of industrial action;
  • "important public services" will be defined in regulations, but must fall within the categories of health services, education of those under 17, fire services, transport services, nuclear waste/decommissioning and border security;
  • the ballot papers must include a reasonably detailed description of the matters in dispute;
  • the ballot papers must also indicate something of the timing and type of industrial action expected;
  • two weeks' notice (rather than one) must be given of industrial action; and
  • any mandate for industrial action will expire after four months. 

Trade Union opposition to the Bill may focus on the first three of those points in the first place, but the changes relating to the voting papers may prove significant.  In the early days of industrial action ballots, employers were sometimes able to challenge the balloting process because of drafting errors in voting papers.  In consequence voting papers were pared down by unions keen to avoid legal challenges.

The Bill proposes other changes, including some to the rules on picketing.  There will be consultation on various issues connected with the possible intimidation of non-striking workers.  The government is clearly concerned about the impact of the sort of leverage campaigns conducted by Unite and other unions.

There is also consultation about the hiring of agency staff during industrial action.  Currently the rules on employment agencies/businesses prohibit them from providing agency workers to cover work normally done by the employees who are taking part in industrial action.

No doubt arguments against some of these changes will be raised under the Human Rights Act and the European Convention on Human Rights.  The Secretary of State has said in relation to the Bill that, in his view, the provisions are compatible with Convention Rights.  He is in no doubt hoping that the European Court of Human Rights will (as in RMT v UK) allow the Government a considerable margin of appreciation and accept that these changes would have "a reasonable foundation".

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