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The Trade Union Act 2016: coming to an industry near you on 1 March 2017

Following our post on 22 December 2016, “2016: A year of discontent?” the Trade Union Act 2016 (Commencement No. 3 and Transitional) Regulations 2017 SI 2017/139 have been confirmed and the main provisions of the Trade Union Act 2016 are set to come into force on 1 March 2017.

The key provisions coming into force on 1 March 2017 include:

  • a 50 per cent turnout requirement for all ballots;
  • the requirement that 40 per cent of those entitled to vote must do so in favour of industrial action in “important public service” ballots (including the health, education, transport and border security sectors);
  • new rules on information requirements, including the requirement for a clear description of the trade dispute and the planned industrial action on the ballot paper;
  • an extension of the notice required for strike action from seven to 14 days; and
  • restrictions on “check-off” arrangements which require unions to make a reasonable contribution to the costs of administration.

You can find the full regulations here.

The Trade Union Act 2016: coming to an industry near you on 1 March 2017

2016: A year of discontent?

2016 has been a turbulent year and it seems to be going out with a bang, in what some have dubbed a “winter of discontent”. According to recent BBC analysis, in the first 10 months of the year 218,300 working days were lost to industrial action. We’ve seen a week of industrial action from rail workers and postal workers, and airlines are also anticipating disruption over the festive period. It’s been reported that Weetabix employees have voted to strike in the new year, so it doesn’t look things are going to slow down.

This is in a year where the Government amended trade union legislation to increase ballot thresholds, introduce new information and timing requirements in relation to industrial action, and impose legal requirements on unions for the supervision of picketing. However, the key provisions of the Trade Union Act 2016 have not come into force as yet and the Government has not set out any specific timetable for implementation.

Current legislation in force provides that industrial action will be unlawful unless at least 50% of trade union members who responded to the ballot voted in favour of the action. When the relevant provision of the new Act is brought into force, in addition to a majority being in favour of the action, unions will be required to show that at least 50% of all eligible members have voted.

Notwithstanding the new legislation, transport minister, Chris Grayling, and a number of other Tory backbenchers, have called for additional anti-strike laws. It’s not clear what such new laws would actually entail but Downing Street has been quick to distance itself from the calls, instead putting its faith in the power of negotiation and stressing that Parliament has already passed legislation to provide people with better protection from undemocratic industrial action. It looks like ACAS, the organisation devoted to preventing and resolving employment disputes, is going to be having a very merry Christmas.

2016: A year of discontent?

Electronic balloting: are trade unions about to leap into the digital age?

Back in the spring, when the Trade Union Act was in its bill stage, the House of Lords proposed an amendment for an electronic balloting review and piloting scheme. The amendment was incorporated into Section 4 of the Trade Union Act (which became law on 4 May 2016). This provision gave the Secretary of State six months to commission an independent review on the delivery of methods of electronic balloting (for ballots before action by a trade union). The fact that the review was announced on the last day available to the Secretary of State (3 November 2016) perhaps suggests that the government currently has bigger fish to fry. However, the former Chief Fire and Rescue Adviser for England, Sir Ken Knight, has now been tasked with looking at:

  1. risks of interception, impersonation, hacking, fraud, or misleading or irregular practices associated with electronic balloting;
  2. whether systems can be safeguarded to reduce risk of intimidation of union members and protect anonymity of voters;
  3. security and resilience of existing practices of balloting union members; and
  4. the aims of the Trade Union Act to ensure that strikes and related disruption to the public only occur as a result of the clear, positive decisions of those entitled to vote.

Sir Ken Knight now has until December 2017 at the latest to prepare his report. Once the report is presented to the Secretary of State, she will need to consider the report and publish her response to it. If there have not already been pilot schemes put in place by that time, it is likely that they will follow. Further, the Act requires the Secretary of State to consult relevant organisations, including professionals from expert associations, to seek their advice and recommendations. All this means that change is unlikely to happen quickly.

So will the trade unions be forced into the digital age by electronic balloting? Perhaps. It seems likely that there will be workable solutions to many of the issues highlighted above. However, by the time electronic balloting is effective, trade unions are likely to have been forced to modernise significantly in light of other challenges (including the increased use of agile and flexible working). Therefore, it is unlikely to be much of a leap for them.

Electronic balloting: are trade unions about to leap into the digital age?

We’re all going on a…strike!

Cabin crew at Thomas Cook have voted by a three to one majority in favour of strike action following the travel group’s change to rest breaks. More than half of the 1,000 staff members voted and three-quarters of those supported industrial action.

Unite, the union representing the staff, is in dispute with Thomas Cook after it reduced its cabin crew’s breaks from one 20-minute break every six hours to one 20-minute break every 12 hours worked. Unite says the cabin crew should have at least two 20-minute breaks every 12 hours.

Under the Working Time Regulations 1998, workers have the right to an uninterrupted 20-minute rest break away from their workstation if their day’s working time exceeds six hours. Statute limits this right to one 20-minute break per day if the shift is at least six hours. Therefore, even if the shift is 12 hours or more, an employer only needs to offer one break. However, this is subject to the employer’s general duty to prevent risks to health and safety. Employers may also use a collective agreement to determine the duration of any rest break and the terms on which it is granted. Thomas Cook states that the union agreed to the change in rest breaks two years ago.

The change to the rest breaks introduced by Thomas Cook accords with the Working Time Regulations as well as the minimum limits set by the Civil Aviation Authority. However, the cabin crew are advancing an argument that this change will affect the health and safety of both the crew and the passengers.

For the proposed strike to go ahead, Unite must give Thomas Cook seven days’ notice. As Unite has not yet served this notice, Thomas Cook hopes that the dispute will not affect half-term holidays. However, it may be that the strike action will disrupt summer holidays instead.

We’re all going on a…strike!