The changes to trade union rights proposed in the ERB are wide-ranging and we cannot cover all of them here, but some of the key changes are set out below.
The tone of the changes is set by a new statutory right for workers to a written statement setting out that they have the right to join a trade union. This is a clear message of intent that employers will be required to be open about (and open to) union membership among their workers.
Right to access the workplace
Perhaps the most significant new change is an independent right for trade unions to access workplaces. The purpose of this is to enable unions to enter workplaces (including a workplace where they may have no current members and where they are not currently recognised) to recruit, represent and organise members and ultimately to obtain union recognition and facilitate collective bargaining.
This will be supported by an enforcement framework – where employers refuse access initially, unions will be able to apply to the Central Arbitration Committee (CAC) to determine whether access should be granted. Where the employer breaches an access agreement, the CAC will have the power to order employers to comply and issue fines for non-compliance. Although we do not yet know the bases on which the CAC will make such determinations or the terms on which access might be granted, this is clearly an immensely powerful new right for unions which will most likely increase union membership.
Lower requirements for union recognition
Once unions have members in a workplace, the next step is to move for recognition from the employer. Current rules require unions to show that at least 10% of the workers in the proposed bargaining unit they represent are members and a majority of voters in a ballot are likely to support recognition. Where a recognition ballot takes place, the union must obtain a majority and support of at least 40% of the proposed bargaining unit.
The ERB proposes watering down the requirements down by:
- removing the requirement for at least 40% of the proposed bargaining unit to vote in favour of recognition, meaning that the union would only need a simple majority of voters;
- removing the requirement for the union to demonstrate they are likely to win a recognition ballot in order for their application to be accepted by the CAC. Instead, the union will only need to demonstrate 10% membership of the proposed bargaining unit;
- providing the power for Ministers to pass secondary legislation to reduce the 10% membership requirement to as low as 2%.
In short, this would make it much easier for unions to achieve recognition, at which point the employer will be required to engage with them in collective bargaining. In theory, if Ministers make use of the power to pass secondary legislation, the position could be that a union is able to achieve formal recognition where only 2% of the workforce are members and there is a simple majority of votes in favour of membership in a ballot. There will therefore be more onus on employers to ensure that workers actively vote against union membership (rather than relying on apathy/low turnout) if they wish to prevent union recognition.
Lower thresholds for industrial action
To hold industrial action lawfully, at least 50% of those entitled to vote must do so and, in important public services, at least 40% of those entitled to vote must vote in favour.
The Government proposes reducing these requirements so that unions only need to achieve a bare majority in a ballot (without reference to the proportion of workers entitled to vote), including for six important public services (being fire, health, transport, education, border security and nuclear decommissioning). This would effectively remove the need for unions to ensure a good turnout in the ballot and puts the onus on the employer to ensure that those who oppose industrial action (or are apathetic) engage with the ballot and vote against industrial action.
Removal of employers' ability to impose detriments for industrial action
Currently, most employers are permitted by law to impose detriments short of dismissal on workers who take part in industrial action. Following the Supreme Court's decision in Mercer earlier this year which found that current legislation is not compatible with the human rights of workers, it is unsurprising that the Government has chosen to close this gap. The ERB will therefore make it unlawful for employers to subject workers to detriment for taking part in industrial action.
The Government is now consulting on some of the proposed changes.
What can employers do to prepare?
The proposed changes are likely to have an impact on both unionised and non-unionised employers.
For unionised employers, the changes may be less significant but nonetheless consideration should be given to whether any industrial relations arrangements, including any collective bargaining and facilities time agreements, need to be updated.
For non-unionised employers, now is an opportunity to reinforce or put in place internal arrangements to manage industrial relations to mitigate any perceived need among employees for trade union representation. The key will be effective employee engagement programmes, which could include setting up employee representative bodies such as staff forums or works councils and ensuring that key stakeholders engage with them to demonstrate employees have a voice and influence.
While some may view the changes with alarm, and there is some support for that view, it is also an opportunity for employers to engage more closely with their workforce and to build positive industrial relations, which in turn can help growth.
