The government has issued a consultation document on the proposals to update legislation relating to trade unions incorporated in Make Work Pay and the current Employment Rights Bill, IPA Director Nita Clarke writes.
These far-reaching proposals represent a sea change in the legislative approach to industrial relations, reaffirming the primacy of collective bargaining in reflecting and representing employee voice, and improving trade union rights of access to workplaces and in organising industrial action.
Following years when the skills of industrial relations have atrophied across large sections of the economy, they will prove challenging for employers faced with union recognition claims, and for trade unions needing to demonstrate that they have an ‘offer’ which resonates with a twenty-first century workforce.
It is therefore right that there follows a national debate involving all the relevant stakeholders, not only on the specific proposals, but on the wider question of reforming industrial relations practice on the ground, in workplaces, to ensure ‘a new partnership approach of cooperation and collaboration’ which the government says it wants to see.
‘We want to create a positive and modern framework for trade union legislation that delivers productive, constructive engagement, respects the democratic mandate of unions, and works to reset our industrial relations.’
The IPA welcomes contributions to the debate on how to take this ‘reset’ forward. The formal consultation on the document runs until 2 December.
Key proposals in the consultation document
The consultation document states: ‘Our existing framework for industrial relations and collective bargaining is full of inefficiencies and anachronisms that work against cooperation, compromise and collaboration.
‘Therefore we will update trade union legislation, so it is fit for a modern economy, removing unnecessary restrictions on trade union activity and ensuring industrial relations are based around collaboration, proportionality, accountability and balancing the interests of workers, businesses and the wider public.
- The document reaffirms the commitment to repealing ‘ideological, ineffective anti-union legislation’ including the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023.
- It proposes changes to the trade union recognition process to end ‘unfair practices’ by employers during the balloting process, including mass recruitment of employees into the bargaining unit, and strengthening the role of the CAC.
- Political funds: remove the ten-year requirement for unions to ballot members on membership of a political fund; unions would simply have to remind members after ten years that they can opt out.
- Industrial action ballots: a simple majority of union members who respond to the ballot will be required to vote in favour – there will be no threshold.
- Simplify industrial action ballots and notice to employers, including use of email rather than post whenever possible.
- modern secure electronic balloting for union ballots.
- Simplify the amount of information that unions are required to provide to employers in the notice of ballot.
- Following the repeal of the 2016 Act, unions will no longer be required to state the number of individuals entitled to vote in the ballot; whether the votes cast are at least 50% of the number of individuals entitled to vote; or in important public services, whether the responses stating ‘yes’ account for at least 40% of eligible voters.
- Unions will only need to take such steps as are reasonably necessary to ensure that an employer receives no less than 14 days (or seven days if agreed by the union and the employer) written notice specifying: the numbers of affected workers who work at the listed workplaces; a list of the categories of worker to which the relevant affected workers belong; a list of the workplaces at which said workers work; the total number of affected workers.
- Ballot results should be provided to those entitled to vote and employers ‘as soon as reasonably practicable’.
- The document asks for views on expanding the timeframe for a mandate for industrial action to take place from six to 12 months.
- The consultation suggests that the existing specific requirements on unions to repudiate unofficial ‘wild cat’ actions are also reduced.
In addition, there will be further consultation on strengthening the rights of union access to workplaces and gives them greater rights and protection against detriment, following Royal Assent of the Employment Rights Bill, including:
- The lowering of the admissibility requirements for the statutory trade union recognition ballot process as set out in section 47 of the Employment Rights Bill.
- Secondary legislation that delivers the commitment to ensure that union members and workers can access a union at work through a regulated and responsible route and develop through consultation a code of practice.
- Secondary legislation that delivers greater rights and protections for trade union representatives to undertake their work, strengthening protections against detriment and union members from intimidation, harassment, threats and blacklisting.
The Employment Rights Bill provides a framework for how a listed union may provide an employer with a request for access to a workplace. This request will need to include details as to the terms on which access is requested and be provided in a prescribed format. Once an employer receives the notice of access from a union, the employer can respond to the notice to either agree access, or object to the access and provide alternatives.
If both parties can align on an access agreement, they would then notify the Central Arbitration Committee (CAC) to record the terms of the access agreement and proceed with the access as agreed.
If no agreement can be reached within a set timeframe (to be consulted on) the union or employer can refer the case to the CAC for adjudication and determination on whether access should be granted under the terms requested.
The CAC would have the power to enforce rights of access agreements and levy penalty fines.
Other proposals would require employers to inform new employees of their right to join a union and regularly remind them of this right and provide for reasonable facility time for union reps