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6. Industrial action
[ch 6: pages 183-185]Strike laws in the United Kingdom are among the most restrictive in the developed world. On 1 March 2017, those laws became even more draconian, in what the TUC describes as “the most serious attack on the rights of trade unions and their members in a generation”.
For all industrial action ballots opened on or after 1 March 2017, new hurdles in the Trade Union Act 2016 (TUA 16) must be overcome for industrial action to be lawful. This Chapter summarises the law on industrial action and explains how it has been changed by the TUA 16.
The Trade Union Act 2016
Here is a summary of the key changes to strike law in the Trade Union Act 2016 (TUA 16):
For all industrial action ballots opened on or after 1 March 2017:
• at least 50% of those entitled to vote must participate in the strike ballot and a majority of those voting must vote in favour (see page 191). Paradoxically, this change may increase turnout, since “not voting” now counts as a vote against the strike;
• for strikes in “important public services”, at least 50% of those entitled to vote must participate in the ballot, and at least 40% of those entitled to vote must vote in favour (see page 191). The cost and effort needed to secure a high turn-out in a postal ballot in the sectors affected is expected to promote other ways for workers to get their voice heard in place of formal industrial action, and to produce more online consultative ballots;
• period of validity of ballot is limited to six months (or nine months if both sides agree) (see page 199). This change is widely expected to undermine settlement possibilities. Some employers may deliberately delay negotiations to invalidate the ballot. Unions, in turn, may opt to re-ballot while negotiations are still continuing, especially in a large-scale dispute, given the time needed for a lawful postal ballot under the rules (see page 193);
• amount of notice of industrial action the union must give the employer has doubled from seven to 14 days (see page 200), giving employers extra time to prepare for strike action;
• a new requirement to “summarise” the nature of the dispute on the ballot paper (see page 194) is expected to generate more injunction applications, especially in complicated or fast-moving disputes;
• new requirements to specify the types of action short of strike on which the union is balloting, and to indicate the likely lengthof the action (see page 194) are expected to generate more injunction applications, and to undermine the strike’s effectiveness;
• new requirement for unions to appoint a picket supervisor who is willing to give their contact details to the police (see page 202) is expected to have a chilling effect on picketing, and presents several practical challenges for unions;
• new obligation to make an annual report of all industrial action endorsed by the union, to be added to the existing annual return to the Certification Officer (see page 190). A key government aim of this change, when first proposed, was to force unions to disown unofficial protests in which their members participate. In addition, the role of the Certification Officer is to be radically overhauled, with new investigation powers backed up by the threat of large financial penalties (see Chapter 5).
The government is still said to be considering lifting the ban on the use of agency workers during strike action, in place since 1973 (see page 201).
During its passage, the TUA 16 attracted condemnation from across the political spectrum, including bodies representing employers. In a formal complaint to the ILO Committee of Experts, the TUC was explicit in its condemnation:
“The TUC considers the Bill and its accompanying proposals and announcements to be nothing less than a full frontal assault on the industrial and political freedoms of the British trade union movement — a strategic part of the government’s austerity policy. They demonstrate the government’s contempt for the civil liberties of trade unions and their rights under international law.”The Welsh and Scottish governments both oppose the TUA16 and a judicial battle is looming over the power of the Westminster government to legislate on these issues in Wales and Scotland. The Act will not apply to Northern Ireland.
In Wales, the Welsh Assembly has launched its own Trade Union (Wales) Bill, which it regards as vital to support the social partnership agenda in Wales for the secure delivery of public services. The Bill, once passed, will dis-apply the following provisions of the TUA 16 as they apply to devolved Welsh authorities:
• the 40% ballot threshold for strikes in important public services (see below);
• new regulations on public sector facility time (see Chapter 5); and
• restrictions on check off (see Chapter 5).
Any move to impose the TUA 16 on public services in Wales is likely to result in legal challenge.
In Scotland, the Scottish First Minister has said that the vast majority of MPs in the Scottish Parliament would never have agreed to the TUA 16, had they been given the chance to vote on it.