Regulation of public sector facility time 





Union facility time has been under consistent attack since 2010, especially in the public sector. By the second quarter of 2014, there were only 13 reps left on full facility time in government departments, compared with 200 in November 2011. This number has since fallen to single figures. The number of general reps has also declined dramatically.





In England, facility time is also under attack in local government, undermining established collective agreements. The Local Government Transparency Code 2015 requires councils to publish detailed annual figures on union reps and trade union facility time, including:



• the number of staff (absolute number and full-time-equivalent (FTE)) who are union reps (including general reps, learning and health and safety reps);





• the number who devote at least 50% of their time to union duties;





• the names of all trade unions represented in the authority;





• a basic estimate of “spending on unions” (the number of FTE days spent on union duties by authority staff that spent the majority of their time on union duties, multiplied by the average salary); and





• a basic estimate of “spending on unions” as a percentage of the total pay bill (the number of FTE days spent on union duties by authority staff who spent the majority of their time on union duties, multiplied by the average salary and divided by the total pay bill).



The Code applies only to local councils in England.




Facility time is also targeted by the Trade Union Act 2016 (TUA 16). This Act empowers ministers to make regulations to require public sector employers and private and voluntary sector employers mainly funded by the taxpayer to publish detailed information about facility time (section 13, TUA 16).



New regulations — the Trade Union (Facility Time Publication Requirements) Regulations 2017 — became law on 1 April 2017. They apply only to public sector bodies (not to private or voluntary sector bodies providing public services). They cover most public bodies but exclude any with a “predominantly commercial focus”. They were enacted without consultation with either the TUC or public sector employers. They apply on top of the Local Government Transparency Code, although local authorities can make one composite return as long as all the information is included. 


These regulations require public sector employers with at least one trade union rep and more than 49 FTE employees in any seven of the 12 months starting on 1 April of each year to publish the following information on their website and in their annual report:


• number of employees who were union officials (reps and shop stewards) during the relevant period (including FTEs). This is the total number of employees who were reps or officials during the relevant period, regardless of who becomes and who ceases to become a rep, not an average number;




• percentage of time spent on facility time (0%, 1%-50%, 51%-99% or 100% of working hours);


• percentage of total pay bill spent on facility time; and




• number of hours spent by relevant union officials on paid trade union activities as a percentage of total paid facility time hours.




The information must be published on a government portal, the Trade Union Facility Time Publication Service, every year by 31 July. 


There is no statutory requirement on employers to separate out this facility time to show what the union rep was doing (for example, acting as a safety rep, or performing representative duties). This is unsurprising because the purpose of this data is to support a political narrative that facility time is a “cost” to the taxpayer. Government guidance promises “savings” of “up to £100 million” through “greater accountability” of facility time. The benefits of facility time are simply not on the radar. (The devolved administrations take a very different view — see box below.) It is therefore vital that unions maintain clear, well monitored internal recording systems that show how facility time is used and train reps to record this information in an accessible way. 


These regulations impose an extra layer of red tape and bureaucracy on public sector employers at a time of limited resources, presumably in the hope of further deterring employer engagement with unions.


The TUA 16 also contains a power to impose a cap on the total amount of paid facility time for any public sector employer, as a percentage of the total pay bill. This power can only be exercised after reviewing three years of data on facility time, following consultation with the relevant employer. Twelve months’ notice must be given before imposing any cap.