A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The provisions ought to make it harder for unions to take industrial action. On the back of recent and high-profile disruption to services through strike action, this is likely to be welcome news to employers. However, we anticipate that the new ballot thresholds will simply focus the minds of union officials and potentially result in more strategic balloting, particularly where unions lack confidence in voter turnout or the anticipated level of support. Unions have certainly warned of a resulting rise in alternative protests. We anticipate an increased rise in employees ‘working to rule’ or agreeing to bans on overtime or call-out work.
In addition to this, recent case law now makes it harder for employers to approach employees directly to ‘strike a deal’ where it does not get the anticipated outcome from collective bargaining with the unions.
The case of Dunkley and others v Kostal UK Ltd found that where an employer bypassed the unions and approached employees directly with a view to negotiation, this was in breach of trade union laws and amounted to an unlawful inducement. Previously, where an employer was proposing changes or other measures that could prompt strike action, early discussion with unions and employees directly to avoid disruption to services had always been key. The case, although only an EAT decision, will make it harder for an employer to do this and will need to carefully consider whether it is offering an ‘inducement’ by approaching employees directly.
So how does the Trade Union Act (the Act) assist employers and help to prevent strike action in the first place? Below, we set out some of the key changes:
- A strike ballot will now require more than a simple majority of those who actually vote. The Act introduces a new minimum voter turnout (i.e. at least 50% of the people entitled to vote must turn out to vote).
So if 100 members are balloted, at least 50% must take part in the vote. However, simple majority still applies for the vote to be valid. So if 50 vote, 26 must vote in favour of action. If all 100 vote, 51 would need to vote in favour.
- Where the vote also relates to “important public services” (specified as health, education for those under 17, transport, border security and fire-fighting) at least 40% of those entitled to vote must vote in favour of action (in addition to the 50% turnout threshold).
So, if 100 members who deliver important public services are balloted, a minimum of 50 must turn out to vote and at least 40 must vote yes for there to be a valid mandate. However, a simple majority is still required - so if all 100 members had voted, then 51 votes in favour would be required to enable action.
- Notice of industrial action to the employer has increased from 7 to 14 days (unless the employer agrees to 7 days’ notice).
- Currently, industrial action must take place within four to eight weeks of the ballot and action can be taken indefinitely, provided the dispute remains live. This is repealed and the Act provides that a ballot mandate expires after six months, or up to nine months if both sides agree.
- Ballot papers must now include more detail, including a summary of the matters in dispute and the periods within which action is expected to take place.
Picketing, facility time and check-off
- Public sector employers, and some in the private sector (i.e. those with functions of a public nature and mainly public funded) with at least one union official, will be required to publish facility time information i.e. the amount of paid time off for trade union officials to take part in trade union activities. It is anticipated that the obligation to publish data will help to achieve efficiency savings by focusing on value for money when it comes to facility time
- Public sector employers and, as above, some in the private sector will now only be able to make check-off deductions (i.e. the deduction of trade union membership via payroll) if the worker can pay subscriptions by other means (such as direct debit) and the union makes reasonable payments towards the employers’ administration costs. This will perhaps make it harder for unions to identify those employees they are able to ballot in the first place.
These provisions will certainly require some organisations, particularly housing associations, to consider whether they are captured by the ‘public functions’ test. This is not defined, but where an organisation is delivering functions of a public nature, or is publicly funded, we expect that the check-off and facility time changes will apply.
The Certification Officer has new powers under the Act to investigation and take enforcement action, including imposing financial penalties, against trade unions for breaches of their statutory duties.
One thing that the Act did not remove, but was expected to was the prohibition on the use of agency (or temporary) workers to cover periods of strike action. Until further consultation is published it will, therefore, continue to be unlawful to engage an agency worker to cover work outstanding by those staff on strike.
For now, it remains to be seen whether the changes of the Act will have a real impact and who will really benefit. Our view is that strike action will become harder for unions, but could prompt alternative action. Communication with unions and employees at the outset will still be key to achieving successful negotiations, but careful consideration will need to be given where this may involve inducements to the employees.
For more help
For further information, please get in touch with your usual contact at Anthony Collins Solicitors or speak to Kate Watkins.
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