Implications for the Public Sector 25/05/2016 The Trade Union Act 2016: Implications for the Public Sector The focus of the talk today is the TU Act. It is important to remember that the TUC and the unions achieved some important concessions during the passage of the Bill to becoming an Act . What is interesting is that After all the debates and the concessions we look at what is now in force and the concessions The Bill has just received Royal Asset on 4 May 2016, completed the report stage in the House of Lords and moves to a third reading on the 25th April 2016. Further amendments can be made at that stage but these are generally tidying up rather than substantial amendments. The Bill has now just been re-printed with the amendments and will be debated in the House of Commons on 27 April 2016 for the ‘ping-pong’ session, where the commons will consider the amendments proposed by the House of Commons and any further amendments. In this session, I will give an overview of the provisions on the Trade Union Bill so far which will hopefully lead to a debate on the legal and industrial issues for us to discuss. I hope to offer an overview on the key proposals and raise discussion points on both legal and industrial issues for us to talk through.

Introduction (1) Received Royal Assent on 4 May 2016. 25/05/2016 Received Royal Assent on 4 May 2016. Amendments to the TULR(C)A 1992, in particular: industrial action ballot requirements – sections 226 to 234; industrial action notice requirements – sections 234A to 235; recognition of peaceful picketing as a lawful activity – sections 219 to 220; political funds – sections 71 to 96; facility time – sections 168 to 173; the role of the Certification Officer is set out in sections 254 to 258 There is no doubt that the introduction of the Trade Union Act is ideologically driven and is a key component in the Governments strategy to weaken and undermine trade unions particularly unions organised in the public sector. Important to remember that although received Royal Assent on 4 May – incidentally as Carolyn Jones at IER reminds us the 90th anniversary of the 1926 general strike – the provisions are not yet in force. The commencement order which will set out dates for implementation are due to be published in two months i.e. by 4 July. Further regulations are also needed to implement other provisions of the act including regulations to define “important public services”; the requirement to provide information on facility time and the Certification Office levy. The devolved administrations in Scotland and Wales have made clear their opposition to the Act and it remains to be seen whether there will be challenges from Wales ( as they have indicated they would consider this). We will look at what we currently have and what is coming into force. Hopefully we can they discuss what the unions response might be.

Trade Union Bill – Areas covered 25/05/2016 Minimum ballot thresholds - Section 2 and 3 Electronic balloting - Section 4 Information requirements for industrial action - Section 5-7 Timing and duration of industrial action - Section 8-9 Supervision of picketing - Section 10 Political funds - Sections 11 and 12 Facility time in the public sector - Section 13 and 14 Check-off in the public sector - Section 15 Reform of Certification Officer - Section 16-21 The provisions cover all aspects of trade union organisation. The main provisions are: Section 2 – a 50% turnout requirement for industrial action ballots, in addition to the requirement for a majority vote in favour of the action. Section 3 – additional 40% support requirement for “important public services”: health services; education for under 17s; fire services; transport services; decommissioning of nuclear installations etc.; or border security. Section 4 – an independent review into electronic balloting including provision for a pilot scheme Section 5-7 – new information requirement for IA voting papers; to members and employer(s) about result; and the CO about IA in the annual return. Section 8 – extends notice of IA period to 2 weeks with provision for this to remain 7 days if agreed by employer. Section 9 – ends ballot mandate after 6 months with provision to extend to a maximum of 9 months if the employer agrees (a move from 4 months originally proposed). Section 10 – supervision of picketing - still required. Section 11 – requirement for new members (not existing members) to opt-in to political fund within 12 months of the Act coming into force amended from a requirement for all TU members to opt-in within 3 months. Section 12 – annual publication of political expenditure details above £2,000. Section 13-14 – public sector employer publication requirement for information on facility time. Section 15 – No outright ban on check-off but can remain where worker has other options to pay (e.g. by direct debit) and the union makes a contribution to the cost of the deduction. Section 16-21 and Schedules 1-3 – reform of the CO’s powers to investigate, enforce, and impose a levy. The Government announced it would remove the ban on agency workers being used to cover the duties of striking workers, but this is not set out in the TUA and would require the repeal of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations.

Industrial Action 1 – Current Position 25/05/2016 A simple majority (Section 226 (2) (a) (iii) TULRCA); Voting paper does not have to contain details of the trade dispute; No requirement for details on the voting paper of the “type” of action short of a strike; Members and employers to be informed of the numbers of votes cast, “Yes” votes, “No” votes and spoiled voting papers (Section 231 TULRCA); Requirement for one week’s notice of industrial action (Section 234A TULRCA); and No time limit on ballot mandate Currently, as you know, a simple majority of those who voted is required. So even if there is a 20% turn out, provided a majority of that 20% vote in favour of industrial action, the trade union is unlikely to face a challenge. (See PLC flowchart on Union Immunity). The current system is not easy and throughout 2009-2011 there were frequent challenges to IA due to vexatious scrutiny of the balloting requirements. The case law turned against employers and a Tory Government now promotes previously unsuccessful arguments to law. The voting paper in the ballot just has to ask which type of IA the members want to take part in such as a strike or action short of a strike. The voting paper does not have to set out in detail the trade dispute, neither is there a requirement for details of action short of a strike to be set out in the voting paper. See the Code of Practice. Although generally we advise that the details are put on the voting paper, as there is no legal requirement to do so, an employer cannot easily challenge an industrial action ballot if the details are not included on the voting paper. As soon as reasonably practicable after the ballot has taken place the union must notify both the members and the employer of: the total votes cast in the ballot; the number who voted in favour of industrial action; the number who voted against; and the number of spoiled papers. There is no time limit on the ballot mandate. So long as industrial action is started within 4 weeks of the ballot, there is nothing to prevent a union from suspending and restarting the industrial action by relying on the original ballot. Provided that it is the same industrial action, there is no time limit on when industrial action can be taken.

(1) Industrial action – Proposed Reform 25/05/2016 All ballots: 50% turnout requirement - s.2 ‘Important public services’ – additional 40% support requirement - s.3 - Health, education of those under 17, fire service, transport services, decommissioning nuclear installations, border security - Applies where the majority of those balloted are ‘normally engaged in’ the provision of important public services’ - Union has a defence if it “reasonably believes” that the workers were not “normally engaged in” important public services Under the Act industrial action will only be lawful if 50% of those who are eligible to vote do so. So if there are 100 in the bargaining unit, 50 must have voted in the ballot and 26 would need to vote in favour of industrial action. If all 100 voted 51 would have to vote in favour of Industrial action. Spoiled papers and invalid ballot papers are included for the purposes of meeting the 50% threshold. However they are treated as “No” votes for the purposes of meeting the majority threshold. This ignores the ILO Committee of Experts which has stated “account is taken only of votes cast.” ILO Committee on Freedom of Association considered Australian legislation recently that has a 50% turnout requirement and found it was likely to be “excessive”. An additional threshold has to be met in those areas which the Government deems to be “important public services” of 40% to vote in favour of IA. So if there are 100 in the bargaining unit 50 would need to vote to meet the requirement for a majority of those eligible to vote in the ballot and 40 (of the 100) would need to vote in favour of IA for the IA to be lawful. “Important public services” are to be defined in Regulations (not yet published). The explanation notes to the Act state these will cover six sectors: health service , education of those under 17, fire services, transport services, decommissioning of nuclear installations and management of radio active waste and spent fuel and border security. The last two were not in the Tory manifesto and have since been added. The ILO’s Committee on Freedom of Association has held that the right to strike may be restricted or prohibited only in essential services and then only “in the strict sense of the term.” ‘Essential services’ are those where interruption would endanger the life, personal safety or health of the whole or part of the population. Cannot be for economic, administrative or convenience reasons. The Unions raised concerns about the separate balloting requirement for ‘Important public services’ as this would create great uncertainty about whether individuals are “normally engaged” or not. This provision has now been amended so that workers whom the Union “reasonably believes” (at the relevant time), are not engaged in important Public Services, will not be covered by the ballot. The effect of the amendment is to provide a defence for a Union where it reasonably believes that the majority of members involved in a ballot do not normally provide an important Public Service. So, for example, ancillary workers such as cleaners, caterers, etc. According to the debate on this amendment, the Union will not be held liable even if their “reasonable belief” turns out to be wrong. The Government will define which roles and functions and how the threshold will apply in regulations. When the provision comes into force it will apply to ballots opened (i.e. when a voting paper is sent to any person entitled to vote in the ballot) on and after the Act comes into force.

E - balloting - Section 4 Section 4 25/05/2016 Section 4 The Secretary of State shall commission an independent review on the delivery of secure methods of electronic balloting for the purposes of industrial action ballots Pilot schemes shall be permitted to inform the design and implementation of electronic balloting before it is rolled out Secretary of State is to commission a review of electronic balloting of all industrial action ballots within 6 months of the Act coming into force. It is clear form the debate that this provision was included on the basis that this would reduce the likelihood of a challenge to the balloting provisions. The Secretary of State must consider the report and publish a response to it (the original proposal by the HoL required that there would be a strategy for the roll out of secure electronic balloting which must be considered by both the House of Lords and the House of Commons. The Gov objected because it would mean that the Government would be committed to introducing electronic balloting and the review was not a true review of the viability of electronic balloting. The provision does not give any guarantees that electronic balloting will be introduced. When preparing a response the Secretary of State must consult “relevant organisations”. The unions may need to remind the Government of one of their own Conservative Peers who during the debate pointed out that the Finance Bill provides for the use of digital returns for people’s entire financial affairs and there was no suggestion by the Government , during that debate, that the Internet was prone to hacking. Its clear the Governments main concern(fear perhaps) is that the unions may be able to use electronic balloting to defeat the imposition of the thresholds. The real reason for the review was made plain by Lord Pannick during the Bill’s passage who commented that “promoting electronic voting will make it much less likely that any legal challenge to the new thresholds would succeed”.

Industrial Action – Sections 5-9 25/05/2016 Summary of the matter or matters in issue in the trade dispute to be included on the voting paper - s.5 Ballot paper to set out types of industrial action that amounts to action short of a strike. Additional information to members (and employers) as how many members were entitled to vote and if the thresholds were met - s.6 Information to be provided to the Certification Officer as to industrial action in the reporting period - s.7 14 days (7 if the employer agrees) notification of industrial action - s.8 No longer a requirement to take action within 4 weeks (or 8 weeks) of the ballot result Ballot mandate to expire after 6 months (9 months if the employer agrees) - s.9 Section 5 amends s.229 of TULR(C)A 1992. The Act has been amended so that only a summary of the dispute needs to be included on the ballot paper. The explanatory notes state this means the information should be sufficient to enable the Union member to understand what issues remain unresolved. This replaces the previous proposal that the ballot paper include a “reasonably detailed” indication of the trade dispute on the voting paper. During consultation a number were concerned that this would invite litigation as employers could argue the ballot paper did not include sufficient information. The debate on the amendment suggested that a summary is a brief statement of the main points in issue e.g. “pay” or “pay for level 3 engineers”. Sections 2(C) and 2(D) provide that where IA is action short of a strike, the voting paper should set out the type of action and the time period the IA is to take place . The explanatory notes give the following examples work to rule October 2016; overtime ban November 2016 and strike action December 2016. Tis effectively means that the unions have to set out their strategy for IA in advance. The requirement to identify the “type” of action is also ripe for challenge by employers. The union will also have to provide additional information as soon as reasonably practicable after the ballot to both members and the employers of all those entitled to vote including : The number of individuals who were entitled to vote; Whether the votes cast reached the 50% turnout requirement; and If the 40% support requirement applied (i.e. for ‘important public services’) and whether that was met. The employer is now entitled to the same information the Union has to provide to members . Namely, those entitled to vote; number of votes cast, number who voted yes, number who voted no and the number of spoiled papers. The union will be required to give the employer 14 days notice of the industrial action after the ballot mandate or 7 days if the Union and employer agree and before action is taken. This is a slight move from just 14 days. During the debate the reason given for approving this amendment was to allow for negotiations where these are proceeding and in response to concerns that a strict 14 day notice may be used by employers to focus on challenging the ballot rather than reaching a negotiated resolution. Further information must also be provided to the CO as part of the trade union’s annual return, including the details above, but also : The nature of the trade dispute to which the IA related; The nature of the IA taken e.g. a strike or action short of a strike; and When the IA was taken. The Act removes the requirement for IA to take place within 4 weeks of the ballot and instead restricts IA to be taken within 6 months from the date of the ballot which can be extended by a further 3 months (so 9 months in total) where the Union and employer agree. A period of 12 months had been discussed during the debate but was regarded as “…too far in favour of the Unions to the detriment of everyone else…”. The new provision means the Union will need to hold another ballot after either 6 or 9 months (depending on whether the employer agreed a further 3 months with the Union).

Picketing – Section 10 25/05/2016 Picketing will not be protected unless the following requirements are met: The appointment of a ‘picket supervisor’; who is familiar with the Code of Practice on picketing A union must issue the supervisor with a letter stating the picket is approved by the union Supervisor to be present or ‘readily contactable’ and able to attend at short notice; and Supervisor to wear “something” to identify them. This section amends s.219 and introduces new s.220A into TULR(C)A 1992. While some of the most obviously ridiculous proposals have been dropped ,such as controlling of the use of social media, the onerous requirement that the Union must appoint a picketing supervisor remains. The picketing supervisor must be an official or other member of the trade union who is ‘familiar with any provisions’ of the Code of Practice on picketing. Although the letter does not need to contain the name of the supervisor the employer, or more worryingly an agent on the employer’s behalf where the picket takes place, can request to see the letter. The picketing Supervisor must be present where the picket is taking place or be readily contactable. The EHRC in its response to the written evidence raised particular concerns that the proposals must correspond to a pressing social need and be supported by relevant and sufficient reasons. For example, the status and responsibilities of the picket supervisor are undefined and it is unclear how a letter of authorisation will influence or improve the behaviour on the picket line. This is all the more serious where the trade union face civil liability in respect of a peaceful and otherwise lawful picket. Additionally, the particular requirements on picketing protests organised by trade unions do not apply on protests organised by other groups, arguably, the (Article 14 ECHR) rights to freedom from discrimination in the engagement of the ECHR rights are engaged. The Tory Government’s ‘Memorandum’ and HRA 1998 impact assessment failed to consider this point.

Picketing – S. 10 (Continued) 25/05/2016 New s. 220A TULR(C)A 1992 The Union or picket supervisor must take reasonable steps to tell the police: - a) The picket supervisor’s name; b) Where the picketing will be taking place; c) How to contact the supervisor The Government proposes to strengthen the Code of Practice which is likely to set out existing legal protection for anyone who feels they have been intimidated on social media. Picket is defined to mean attendance at or near a place of work in contemplation or furtherance of a trade dispute for the purpose of: Obtaining or communicating information; or Persuading any person to work or abstain from working. Where 2 or more Unions encourage members to take part in picketing a new provision, provides that these provisions can be met by just one of the Unions. (new s.220A(10)) The Government proposes to strengthen the Code of Practice which is likely to cover guidance on leverage protests linked to industrial disputes as well as what legal action is available to those who feel intimidated through social media. The Government takes the view that these provisions on picketing are compatible with the right to freedom of assembly and proportionate because they reflect current practice.

Political funds - S.11 25/05/2016 Current system of ‘opt-out’ will remain for current members New members to ‘opt in’ to making contributions to political fund over transition period ‘Opt in’ authority for new members must be in writing including by electronic means Union must inform all members annually of their right to opt-out of the political fund the Union shall send a copy of the notification to inform members of this right to opt out to the Certification Officer CO to monitor union’s compliance S. 84 of TULR(C)A is amended on union political funds. The previous proposal would have required existing union members to actively opt in to the political fund within 3 months of the Act coming into force. And would have led to a significant reduction in payments to the Labour Party. Currently union members automatically contribute to the union’s political fund unless they have expressly opted-out. The Act reverses this provision for new members only (not existing members) by requiring new members to expressly opt-in during a transition period. The transition period will be decided by Regulations but is to be for no less than 12 months from the date the TU Act comes into force. This must be by written authority but can now be by electronic means. Any new members who join a Trade Union which has a political fund after the transition period (12 months from the Act coming into force) must be asked if they wish to opt-in to the political fund. Where a Union does not have a political fund but which votes to introduce such a fund after the Act comes into force, ie it will have to seek an active opt-in by its members. Members can cancel their contributions to the political fund at any time by giving one month’s notice in person, by post, email or electronic form. In addition, the Union will have to inform new members who join after the transition period of their right to opt-out of contributing to the political fund. The information must be sent every year no later than 8 weeks after the annual return to the CO. The notification can be by sending individual copies to members or by other means which is the unions normal practice of informing members of information of general interest eg, publishing in the union’s magazine. Note, members who join the union before these provisions came into force will be automatically opted in. During the debate it was felt that an annual reminder to members of the right to opt-out of the political fund was more “proportionate” than a requirement for members to opt-in every 5 years.

Political Expenditure s.12 25/05/2016 New s.32ZB TULR(C)A 1992 Where union expenditure from the political fund exceeds £2,000 in any calendar year, the union will have to provide the following: Name of political party and total amount given Name of organisation and amount given Name of candidate and amount given Name of campaign and amount given There is currently no requirement on trade unions to publish their political expenditure. The Act requires the union to publish details of its political expenditure which exceeds £2,000 in its annual return to the Certification Officer and a requirement that the Unions set out the following information in relation to expenditure from the political fund: The name of each political party on which money was spent; The total amount spent in relation to the election to a political office including the name of the candidate and their political party; The total amount, where maintenance is paid, the name of the person(s) their political party and/or candidate that people were intended to vote for or not vote for ; and The total amount expended in relation to each cause or campaign including the name of the organisation and the amount paid to each. The requirement to publish political expenditure is a serious and vicious attack on trade unions right to be engaged in political activity for the benefit of its members and is a down right invasion of the rights of unions to use what is after all a political fund on the money as they see fit. This is in stark contracts to the anonymity of Tory donors.

Facility Time/Check Off - Present 25/05/2016 Paid time off for trade union duties (168A) TULRCA Time off during working hours for trade union activities (section 170 TULRCA) Paid time off for health and safety duties Collective Agreements and Contracts of Employment The written evidence from all public sector employers raised the obvious point that there are enormous benefits to achieving change through positive relationships with their trade unions. None supported theses proposals and highlighted the national and local collective agreements in place that would be undermined by interference by central government.

Facility Time S.13 New S. 172A TULR(C)A 25/05/2016 New S. 172A TULR(C)A Minister may make Regulations requiring ‘public sector employers’ to publish information such as: The number of union representatives by type (eg shop stewards, learning reps and health and safety reps); Total amount spent paying for facility time and type of facility time; Percentage of the aggregate amount of facility time taken by union officials in a specified period attributable to certain activities; and The facilities provided S 13 of the TUA introduces new Section 172A into the TULR(C)A 1992 which enables the Minister to introduce Regulations requiring public sector employers who have at least one trade union official to publish certain specified information about the time trade union reps spend on trade union duties and activities. A public sector employer is a public authority which will be defined in the regulations. The explanatory notes state that this will be specified public authorities or bodies that provide functions of a public nature that are wholly or mainly funded by public funds specified in regulations and would include the Civil Service, local government, fire and rescue services, the NHS, Schools (including academies and free schools) and the BBC . The information that the public sector employer will be required to provide includes: The number of union representatives by type ( e.g shop stewards learning reps and health and safety reps); Total amount spent paying for facility time and type of facility time; Percentage of the aggregate amount of facility time taken by union officials in a specified period attributable to certain activities; The facilities provided Regulations will set out the form the information is to be provided and when it is to be provided.

Facility time - s.14 New s.172B TULR(C)A 25/05/2016 New s.172B TULR(C)A Allows a Minister ‘reserve powers’ to make regulations 3 years after the publication requirements under s 172A come into force to cap the percentage of the employer’s total pay bill spent on paying union officials for facility time Where the Minister considers it appropriate having regard to the information published under s 172A, the cost to public funds of facility time, the undertaking itself and anything else the Minster thinks relevant; The Minister must give the employer notice in writing and allow the employer a reasonable period to respond and take any action that may be appropriate and cannot exercise the reserve powers until after 12 months notice to the employer has been given. The regulations may: require employers to publish further information ; and modify certain contractual or statutory rights to time off These provisions leave open the ability of Gov to introduce a cap on facility time in 3 years time and to modify statutory and contractual provisions on facility time(except in relation to unions reps time off for collective consultation under S. 188) Unions need to ensure good collective agreements now in place and incorporated into the contract to cover facility time.

Check Off – s. 15 25/05/2016 Public Sector employers can continue check off provided: Workers have the option to pay subscriptions by other means; and The union pays the employer for the service The amended provisions allow for check off by public sector employers where there is an arrangement in place whereby the union makes “reasonable payments to the employer for the cost of check off and workers have the option to pay trade union subscriptions by other means. “Reasonable payments” is to be defined as meaning where the employer is satisfied that the total payment covers the cost to public funds of check off.

CO’s Increase in Powers 25/05/2016 To appoint an inspector to investigate a union where the CO has ‘reasonable grounds’ to suspect the Trade Union has failed to comply with the relevant obligation; Inspectors may require people to assist with the investigation and produce documents that the inspector considers may be relevant in connection with an investigation (eg register of names and addresses of members); Enforce the new annual reporting requirements concerning industrial action and political expenditure; Make an enforcement order where the CO is satisfied that the trade union has failed to produce documents where it was reasonably practicable for them to do so; Impose fines of between £200 and £20,000; and Power to impose levy on trade unions by Secretary of State. Currently the so-called regulator the CO can make “such enquiries as he sees fit” act on a complaint from a trade union member about a range of alleged breaches of statutory provisions. The CO does have some investigatory powers in relation to financial affairs or breaches of duty in relation to the register of members without the need for a complaint. The Act provides that the CO will be independent and not subject to Ministerial direction. With that the Act introduces extensive investigatory powers for CO relating to unions ( an where relevant unincorporated employer associations) where the CO has reasonable grounds to suspect that a union has failed to comply with a ‘a relevant obligation’ such as: union elections; political fund; and union amalgamations. The CO has the power to appoint inspectors where it has “reasonable grounds” to suspect that the union has failed to comply with a relevant obligation e.g regarding unions register of members, compliance with rules as to ballots on political resolutions and requirements relating to political funds. The CO has the power to make a declaration that a trade union has failed to comply with the new annual return requirements in relation to details of industrial action and political expenditure. Before doing so the CO may make enquiries and may give the trade union an opportunity to make oral or written and must specify the reasons for making any declaration in writing. The CO can make an enforcement order which will set out what action the union should take to remedy the failure and impose fines including if there has been a failure to provide an annual report on industrial action or political expenditure or a failure to comply with an investigatory requirement ranging from £200 to £20,000. There is also a power for the Secretary of State to make Regulations setting different amounts depending on the enforcement order There is also a power for the Secretary of State to make Regulations which would impose a levy on trade unions and employer associations to pay a levy to cover the cost of the certification office. The Sec of State must consult relevant organisations and ACAS before making regulations. During the debate at report stage the Government indicated that the regulations would exclude from the levy paid by unions the cost of any inspectors appointed in response to the argument that the trade unions would be the only ones who would have to contribute to the cost of those who would investigate them. However the provisions are not as prescriptive and simply state that the Regulations may provide flexibility by allowing the levy not to be payable or a reduced amount in certain cases. The unions will be able to make their position clear in response to the consultation on proposed regulations.

Points To Note Article 11 ECHR freedom of association 25/05/2016 Article 11 ECHR freedom of association Any restriction on the rights must be “prescribed by law” and “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others” Refer to points made earlier, about Thompsons submissions that Thompsons and others made to the published Written Evidence. In particular, the EHRC published a briefing on 11 January 2016 about its concerns on the Bill, particularly that some specific clauses may not comply with the ECHR, or the UK’s international obligations under the UN and ILO treaties and ESC.

Conclusion 25/05/2016 A wide range of changes that will impact significantly on trade unions’ abilities to organise and campaign Widely publicised concessions from the original provisions due to efforts of trade unions, Labour politicians and common concerns from across the political spectrum Union may need to consider being more strategic in the industrial action they take Care will be needed to protect against challenges when meeting the thresholds and describing IA short of a strike but strategic ballots can be done and win. Employers speculate the increase in leverage campaigns – risks involved Recruitment opportunity – because of the effective campaign to lobby parliament and get through significant changes