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The Trade Union Act 2016

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19 October 2016

The Trade Union Act 2016

The Trade Union Act 2016 (2016 Act) was completed on 4 May 2016 and amends the Trade Union and Labour Relations (Consolidation) Act 1992. Broadly, the main changes made to the 1992 legislation were:

  • minimum ballot turnout and new ballot threshold criteria in public services
  • additional requirements for information on ballot papers and returned information to union members of ballot results
  • expiry of mandate for industrial action
  • criteria for union picketing
  • contributions to political funds

Ballot turnout and threshold in public services

The 2016 Act now requires for a 50% voter turnout from members who are eligible to vote. For industrial action to take place, the Union must then receive a majority of votes in favour of action. The rules prior to this allowed for industrial action to take place as long as a majority of those who voted were in favour.

The change looks to address the balance of apathy i.e. that if you take the time to vote you are more likely to vote in favour of industrial action. This new requirement could mean that the voting members could vote 100% in favour of action, but if this is only 49% of the eligible memberships then the statutory hurdle would not be overcome.

For public services the threshold is even higher. In addition to the 50% turnout requirement, at least 40% of those who were entitled to vote in the ballot would need to have voted in favour of the industrial action (for non-public services this would only be 25% of the eligible members as long as 50% vote overall). The ‘public services’ requirement applies to health services, education of those under 17, fire services, transport services, decommissioning of nuclear installations (management of radioactive waste and spent fuel) and border security.

The increase of threshold in both the private and public sector for industrial action had the stated aim of making the mandate more democratic. Requiring a minimum turnout in ballot voting reflects a more accurate representation of employee opinion. It is no surprise that this will make it more difficult for the unions to organise strike action.

Information on ballot papers

Under the 1992 Act, trade unions were required to specify whether the member voted a majority yes or no to industrial action. The 2016 Act requires further information on the ballot paper, including information of the nature of the issues disputed between the employee and employer, the expected time period in which the strike will take place and a specification of the type of industrial action.

There is now a requirement for the trade union to inform the members the result of the ballot. Such information required is the number of individuals who turned out to vote, if the vote received majority in support of the industrial action and when applicable, whether the public services minimum requirement was met.

Expiry of mandate for industrial action

The mandate for industrial action will now automatically expire 6 months after the date of the ballot. However, this time period can be extended to 9 months with the employer’s consent.

The introduction of a 6-month expiry on a mandate for industrial action allows for an up to date representation of members views and helps to ensure that those who voted for the strike are still current employees of the employer in question.

The extension of notice to the employer by the trade union allows for negotiations to take place to hopefully resolve the dispute before industrial action has to take place.

Employer notification of industrial action

The trade union must now give a minimum 14-day notice of industrial action, from the point in which the ballot mandate is secured and before the start of any action.

In practice these 14 days should be used for final negotiations to see if the action can be averted.

Criteria for union picketing

There is a new requirement for organised picketing of trade members. The union must appoint a “supervisor” who is familiar with the Code of Practice on Picketing. The police must be informed of who the supervisor is, where the picketing is scheduled to take place and how to contact the supervisor. The supervisor must either be present at the picket or be available at short notice to attend if required. This requirement is designed to exert greater control over the picket and to pass ultimate responsibility for any disorder to the union.

Contribution to political funds

Members of trade unions, following the 2016 Act, now have to opt in to contributing to political funds. Members who choose to opt in can withdraw their agreement to contribute by sending a withdrawal notice to the union. The agreement to make contributions lapses after 5 years, and members will have to renew their agreement if they wish to continue to make contributions.

Trade Unions heavily support political parties which align with their overall aims. The payments would have been made automatically before this change but the opt in is designed to prevent these contributions being made without express agreement.

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