Essay Prompt:

On 4th May 2016 The Trade Union Bill received royal assent to become the Trade Union Act 2016.
Employment Minister Nick Boles said:
These changes will ensure people are only ever disrupted by industrial action when it is supported by a reasonable proportion of union members. The Trade Union Act means the rights of the public to go about their lives are fairly balanced with members ability to strike.

Unite General Secretary Len McCluskey said:
The bills progress today is a dark day for workers and for those who speak up in their defence when power is misused.
(Adapted from Moss (2016) Trade Union act 2016 becomes law, Personnel Today available at http://www.personneltoday.com/hr/trade-union-act-2016-becomes-law/ )

The Trade Union Act (2016) has been a controversial piece of legislation and did not have a smooth passage through parliament. The draft regulations are set to come into force on 1st March 2017.

Critical Evaluation of the Impact of the Trade Union Act (2016) on Trade Unions and Employers

On the 4th of May 2016, the controversial Trade Union Act 2016 received royal assent, changing the way in which Unions can operate, curtailing many of their powers in a move that has been argued as reducing union power (Ewing and Hendy, 2016). The bill, first introduced in 2015, was watered down from the original more aggressive proposals in the discussion papers (Liberty, 2016). Items excluded from the bill included enhanced requirements increasing the regulations on picketing, such as the requirements for unions to notify police and employers of picket plans two weeks ahead of the action, resections of social media use by unions, and the introduction of a new criminal act of intimidation as pickets (Liberty, 2016). However, the act still has a significant impact on employers and trade unions, with Liberty (2015) stating that this act created

a significant, unnecessary and unjustified intrusion by the State into the freedom of association and assembly of trade union members, undermine the right to private and family life, and jeopardise the UKs important history of supporting peaceful protest (p.3).

This indicates there is a profound effect, this paper examines the impact of the act on employers and the employees.

Brodies (2016) identifies numerous substantive changes contained within the act. These include changes to the way in which balloting takes place and voting is counted, the notice required for industrial action, and the timescale within which industrial action may take place, changes to the check off system which connects union subscriptions direct from payroll, changes to donations to political funds, facility time, and increase statutory powers to the picketing code of conduct, and changes regarding the use of agency workers during industrial action. These different elements can be considered individually.

Changes to Balloting

The changes have impacted the way balloting takes place, these increase the requirements on the union, and make it harder to obtain a vote in favour of taking action. Before the vote takes place the ballots should be prepared with the information on the paper including a clear destitution of the dispute itself, as well as details of the industrial action that is planned (Moss, 2016, Trade Union Act 2016).

In the past there was only a requirement for trade unions to ask union members whether or not they wanted to take action and express delivery should be strike action, or action short of strike action, without being prescriptive. It is argued by the government this will increase transparency, allowing workers to know what they are voting for, but does increase the requirements of the trade union (Liberty, 2015).

There are changes in the way a vote for action is acceptable. Prior to the change, the bar was straightforward; the majority of those voting to vote in favour of action. Now, for the results of any ballot to be actionable, at least 50% of those entitled to vote must have participated and a majority must vote for action to be taken (Trade Union Act 2016).

This may be seen as raising the bar; many unions will have members eligible to vote who may not participate. If the dispute concerns employees normally engaged in important public services, for example education, fire services, health and transport, the bar is raised further, with at least 40% of those eligible to vote, voting in favour of action (Brodies, 2016, Trade Union Act 2016).

This latter requirement may also be argued as a double standard,...
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Under these requirements, the conservative party would not have gained power in the last election; moreover, since the end of the Second World War there has only been one election where the winning party managed to obtain 40% of the popular vote, which was the 1951 election where the Labour Party won (Warwick, 2015). In the last election, out of the 330 Conservative MPs, 274 did not manage to gain the support of 40% of their electorate (Warwick, 2015). Likewise, when Boris Johnson stood as Mayor of London, he failed to obtain 40% of the total electorate (Warwick, 2015). Therefore, it may be argued that this requirement has been incorporated in order to minimise the potential for employees to vote for industrial action. For trade unions, this means the organisations will need to encourage increased participation in boats, with absence effectively being a vote against action.
The implication here is a greater need for unions to reach out and communicate with all eligible voting members, even moving towards marketing campaigns to encourage voting, even before looking at the issues. Theoretically, a 100% vote for action by those participating in a ballot may not to be actionable, if they did not make up 50% of the eligible electorate. This change clearly benefits employers, as they are less likely to face an actionable vote.

Likewise, to avoid a vote in favour of action, employers no longer need to persuade employees to vote against action, they can simply encourage them to abstain. The law now creates a bias, where staying votes are effectively cast against strike action (Ewing and Hendry, 2016).

The requirements regarding the way industrial action is taken have also changed. Prior to the act, unions were obliged to give employers seven days notice of action, this has now increased to a default of 14 days, with the exception of seven days where the employer agrees that this is sufficient notice (Trade Union Act 2016).

Once a vote had taken place, under the old statutes, union action had to take place within four weeks, or eight weeks with the employers permission, but action could then be taken indefinitely at any time based on the ballot results, as long as the dispute is continuing. However, this is no longer the case, with the new act allowing the mandate to expire after six months, with the exception where employers agree allowing it to last up to 9 months, after which time the union will need to seek a new ballot (Trade Union Act 2016). This expiry of the ballot means that unions are unable to take action based on historic ballots, effectively limiting the potential period for future action.

For the trade unions there is a curtailment of their ability to use past mandates, which may be a significant constraint. There are also arguments that historic ballots in favour of action may not always reflect the current views of the members, and there is a potential to abuse historic mandates granted through a ballot.

It is known where action is undertaken a significant period after the initial ballot, there may be less commitment by the employees towards the action as the initial feelings may have subsided (Wrigley, 2012). However this s viewed, it increases the pressure on trade unions, with the expiry of mandates, and may also provide barriers as there are always costs associated with a new ballot taking place.

The act also mandates that the government should commission an independent review to consider the potential for electronic balloting (Trade Union Act 2016). In the past there have been pressures to implement electronic balloting, as a way of increasing the potential vote, and reducing barriers to eligible members. With the requirements for at least 50% of the eligible members to participate in a vote for it to be binding, and 40% to vote in favour of action in essential public service organisations, it may be argued that the ability to restrict or place barriers to members voting benefits the employer.

Therefore, it is notable that while there is a commitment to commission an independent report onto electronic voting, the act does not provide for any commitment to implement this balloting process. This, once again, appears to favour the employer over the trade union.

Payment of subscriptions and deductions

Check-off is a process through which trade union memberships are paid through a deduction administered by a companys payroll (Bowers, Duggan and Reade, 2011). Under the new act, employers that are either in the public sector, or in the private sector providing some public services, union subscription may only be…