The Trade Union Act 2016

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What is the Trade Union Act 2016?

The Trade Union Bill  received Royal Assent on 4th May 2016  to become the Trade Union Act 2016 (the Act).  It commenced on 1st March 2017.  The Act amends the Trade Union and Labour Relations (Consolidation Act) Act 1992 (TULRCA 1992)as follows:

  1. Sections 2 and 3 set out the requirements for minimum ballot thresholds – a 50% turnout in all industrial action ballots, and a 40% support requirement in favour of industrial action for specified important public services in six sectors.
  2. Section 4 requires an independent review on the delivery of secure methods of electronic balloting in relation to industrial action ballots and for the Secretary of State to publish a response to the review. It also provides for a piloting scheme. Section 4 does not amend legislation but introduces a provision which requires the Secretary of State to commission an independent review into industrial action ballots.
  3. Sections 5, 6 and 7 set out information requirements relating to industrial action: the information that must be included in the ballot paper; and information to be given to union members and to the Certification Officer following a ballot.
  4. Sections 8 and 9 specify the arrangements for the timing and duration of industrial action. Section 8 requires two weeks’ notice of any action to be given to an employer unless the union and the employer mutually agree to 7 days’ notice. Section 9 provides that a ballot mandate for industrial action expires after six months or after nine months where there is a mutual agreement between the employer and the union.
  5. Section 10 sets out requirements on unions for the supervision of picketing.
  6. Sections 11 and 12 concern political funds. Section 11 provides that persons who join a trade union after commencement shall be required to make an active choice before contributing to a union’s political fund. Section 12 places requirements on unions to include details of expenditure from political funds in the union’s annual return to the Certification Officer;
  7. Sections 13 and 14 create regulation-making powers in respect of paid time off for trade union duties and activities in the public sector;
  8. Section 15 restricts the deduction of union subscriptions (“check off”) from wages by relevant public sector employers where:-
  • workers do not have the option to pay subscriptions through other means and;
  • arrangements have not been made for a union to make reasonable payments to the employer for the making of those deductions.
  • there is a regulation making power to specify who is a relevant public sector employer;

 

See Trade Unions and Staff Associations

Ballots

The Act amends industrial action ballot requirements in sections 226 to 234 TULRCA 1992 . Currently, section 226 of the 1992 Act requires a simple majority for a ballot conducted by a trade union for industrial action to be successful. There are no requirements for any level of turnout. This section introduces a new requirement that in all ballots for industrial action, at least 50% of the trade union members entitled to vote must do so in order for the ballot to be valid. Whether or not the ballot is successful and creates a mandate for industrial action is unaffected: a simple majority (i.e. more than half) of the votes cast must be in favour of industrial action in order for action to go ahead.

The Act now imposes  a 50% turnout requirement in all ballots for industrial action. In addition, industrial action in ‘important public services’ will require the support of at least 40% of all those eligible to vote. Six sectors are identified as ‘important public services’ – health, education of those under 17, fire, transport, nuclear decommissioning and border security. Detailed provisions will be supplied in secondary legislation.

The Act regulates the balloting process by requiring more detailed descriptions of the trade dispute and proposed action on the ballot paper, and imposing a six-month time limit on the validity of each ballot, although this can be increased to nine months with the employer’s agreement. It also requires the Government to commission an independent review of possible methods of electronic balloting, although it does not include any concrete commitment to its introduction.

Notice of strike action

The Act amends industrial action notice requirements in sections 234A to 235 TULRCA 1992;Unions will be required to provide 14 days’ notice of any strike action (or seven days’ notice, if the employer agrees to this).

 

Ban on use of Agency Workers during strikes

Provisions to repeal the ban on the use of agency workers to fill in for striking workers are not  in the Act; they were due to be introduced in secondary legislation, but there has been no update on when this will be.

Union subscriptions & Political Funds

The Act amends political funds requirements in sections 71 to 96 TULRCA 1992;

The process for payment of trade union subscriptions will be amended, with the Act introducing a requirement for new union members to be offered an active choice of whether to pay into a union’s political fund and provided with information on opting out from such contributions on an annual basis.

For Employers in the public sector (and some private sector Employers that provide public services), ‘check-off’ (i.e. the deduction of trade union membership subscriptions via payroll) will only be permitted if the union contributes to the cost of administering the system.

Facility Time

The Act amends facility time requirements in sections 168 to 173 TULRCA 1992;

A  requirement has been introduced for Employers in the public sector (and some private sector Employers that provide public services) to publish information on ‘facility time’, such as the amount spent on paid time off for union duties and activities and the amount of time taken up by those duties and activities. Secondary legislation will identify which Employers fall into this requirement and what information they will be required to publish. The Act also provides for the possibility of further regulations that would allow Ministers to impose caps on facility time at a particular Employer if the amount and cost of facility time is a cause for concern.

 

Picketing

The Act amends the provisions relating to the recognition of peaceful picketing as a lawful activity in sections 219 to 220 TULRCA;

The Act gives statutory force to certain parts of the current Code of Practice on Picketing , such as the requirement to appoint a picket supervisor . It also  introduces new powers for the Certification Officer to investigate and take enforcement action where a union breaches its statutory duties.

 

 

Relevant Documents

 

Consultation Documents

Ballot thresholds in important public services

Hiring agency staff during industrial action

Tackling intimidation of non-striking workers

 

Resources Available

Employee Representative Guide for non-union workplaces

DOCUMENTS, FORMS AND LETTER TEMPLATES

Disciplinary action and capability

Discrimination at work

 

Best of the web

Legislation – Trade Union Act 2016

Practical Law Article – Trade Union Act 2016: oppressive measures or neutralised reform?

 

Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.  Further specialist advice should be taken before relying on the contents of this publication.

You can send an e-mail to;  thelawyers@employeerescue.co.uk for such specialist advice if required.

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