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The Trade Union Act 2016: what is changing?

Commuters crossing a busy streetThe Trade Union Act 2016 was passed on 4 May 2016. A key element of the reform is that industrial action will be lawful only when there has been a ballot turnout of at least 50%.

We don’t yet know but expect the majority of the provisions to come into force later this year, with some delayed into the start of 2017.

The main changes are:

• A strike ballot must currently have the support of a simple majority of those voting. In addition to this, the Act requires at least 50% of all eligible members to have voted, or 40% in certain ‘important public services’ including health, education of those under 17, fire, transport, nuclear decommissioning and border security. The full list of what sectors fall under ‘important public services’ has not yet been published. The 40% requirement will be triggered where the majority of workers are normally engaged in the provision of ‘important public services’.

• Unions will have to include additional information in ballot papers, including a clearer description of the trade dispute and the planned industrial action, so that workers know exactly what they are voting for.

• Unions will have to give 14 days’ notice of any industrial action (unless the employer agrees that 7 days’ notice is enough). The current requirement is to give 7 days’ notice.

• Currently, industrial action must take place within 4 weeks of the date the ballot closed, unless the union and employer agree to extend it to up to 8 weeks. The Act provides instead that ballot mandates will expire after 6 months (or 9 months if the employer agrees). After this time, the union will need to seek a new ballot for any proposed industrial action.

• 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 worker can pay its subscriptions by other means (such as direct debit) and the union contributes to the cost of administering the system. This change will come into force next year to allow time for arrangements to be put in place.

• Some of the current Code of Practice on picketing has been given statutory force e.g. the requirement to appoint a picket supervisor.

• A new transparent process for trade union subscriptions is being introduced that allows new members to make an active choice about whether to pay into political funds. Information on opting out from such contributions will need to be provided on an annual basis.

• Employers in the public sector (and some private sector employers that provide public services) will have to publish information on ‘facility time’ such as the amount of paid time off for union duties and activities. The Act also allows the government to issue regulations restricting facility time at particular employers.

• The government must commission an independent review of possible methods of electronic balloting, although the Act does not include any commitment to its introduction.

• There will be new powers for the Certification Officer to investigate and take enforcement action against trade unions for breaches of their statutory duties.

The proposal to repeal the ban on using agency workers to replace striking workers is not contained in the Act. There has been no update on whether and when this change might happen.

The devolved governments in Scotland and Wales previously made it clear that they were strongly opposed to the Act. However, trade union law is not devolved and the Act is set to apply equally in Scotland, England and Wales.

Please get in touch if you would like to discuss the likely impact of any of the changes.

Julie Keir Brodies

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