Fair Pay and Trade Union Rights
Introduction
In ‘Making Work Pay’, Labour committed to ‘updating trade union legislation so it is fit for a modern economy, removing unnecessary restrictions on trade union activity….’. Labour said that it would repeal ‘all’ of the anti-trade union legislation) introduced in the last 14 years including the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023).
Labour also said that it would simplify the statutory recognition process, create a new right of access for trade unions, provide new protection for trade union representatives and facility time, and ‘update’ protection against blacklisting. In its ‘New Deal’, Labour said it would introduce electronic and workplace balloting and that UK law industrial action should comply ‘in every respect’ with the international labour obligations ratified by the UK, including those of the International Labour Organisation and the European Social Charter. Labour has already met its commitment to upgrade the remit of the Low Pay Commission to include the cost of living in decision-making on National Minimum wage rates.
What’s included?
The Employment Rights Bill introduces many measures towards these ends. Most of the restrictions on industrial action introduced by the Trade Union Act 2016 – ballot thresholds, additional information to be provided on the ballot paper (issues in dispute, types of action short of a strike and period within which action is expected to take place), extension of action notice from 7 to 14 days – are removed. The Strikes (Minimum Service Levels) Act 2023 will be repealed.
There is new protection against being subjected to a detriment ‘of a prescribed description’ (to be defined in regulations) for participating in protected industrial action. The limit on automatic unfair dismissal protection (in most circumstances) to the first 12 weeks of action is removed – dismissal for participating in protected industrial action will be automatically unfair whenever it occurs. In the statutory union recognition procedure, there will be power to introduce regulations to reduce the 10% admissibility criterion to between 2 and 10%.
Where a majority of workers in the bargaining unit vote in favour of recognition, the CAC will be required to award recognition – the requirement for 40% support in the bargaining unit will be abolished. The collective redundancy threshold of 20 or more employees ‘at one establishment’ will be removed. The requirement to consult will be triggered when the employer proposes to dismiss as redundant 20 or more employees.
Other restrictions introduced by the Trade Union Act 2016 are also removed – the requirement of a picket supervisor, the additional powers of the Certification Officer (including investigatory powers, power to impose a levy and financial penalties), the additional duties in relation to unions’ annual returns (concerning industrial action and political expenditure) and the restriction on collecting union subscriptions by check-off in the public sector. The facility time publication requirements and reserve powers are also abolished. Significantly, the requirement to ‘opt-in’ for political contributions is reversed, and the ‘opt-out’ procedure reinstated.
There is a new procedure for seeking agreements for access to the workplace, with disputes to be adjudicated by the CAC. There is a new right of complaint to the Employment Tribunal for failure to provide reasonable ‘accommodation and other facilities’ for trade union representatives, and a new right to time off for union equality representatives. There is a power to introduce regulations prohibiting the use of any list containing details of trade union members, or those who have taken part in the activities of unions, for the purpose of discrimination.
What’s not included?
Not all of the restrictions on industrial action introduced by the Trade Union Act 2016 are to be repealed. The expiry of the ballot mandate after six months is to be retained. There is no progress on the introduction of electronic balloting – the Bill simply records that the power to provide for electronic ballot contained in section 54 Employment Relations Act 2004 is retained.
Many unnecessary restrictions on industrial action balloting requirements have not been addressed – such as the information as to ‘lists’ and ‘figures’ to be provided in ballot and action notices and a union’s ability to ballot where there is to be a change of employer.
Beyond provision for an Adult Social Care Negotiating Body, there is no further progress on fair pay agreements. The government is separately removing the discriminatory pay bands in the National Minium Wage.
Comment
The Employment Rights Bill's fair pay and trade union rights provisions implement many (though not all) of Labour’s pre-election commitments. Further deliberation will take place on how to implement electronic balloting. In ‘Next Steps’ the government says that it will launch a working group with stakeholders, to include cyber security experts and trade unions, by the end of the year – ‘with full rollout implemented following Royal Assent of the Employment Rights Bill’. This needs to happen fast - trade unions have been waiting almost seven years since Sir Ken Knight's review.
Further consideration should be given to what other ‘unnecessary restrictions’ on trade union rights should also be removed to make trade union laws fit for a modern economy and compliant with the UK’s international obligations, including the balloting and notification requirements that remain, and the outright ban on secondary industrial action.
In ‘Next Steps,’ it is confirmed that there will be consultation on modernising trade union legislation, and the 10-year ballot requirement for political funds is singled out for mention. Labour still needs to deliver on its commitments to reverse the decline in collective bargaining, update trade union laws, and empower workers in the workplace.