Making Work Pay: creating a modern framework for industrial relations

The Government is consulting on a new framework for industrial relations. This follows the publication of the Employment Rights Bill (see Advisory Bulletin 728), which contains many provisions that will change industrial relations law, including on industrial action ballots, the rights of trade unions to access workplaces and the rights of union officials and representatives. Therefore, some of the consultation relates to the detail of those changes, but it also covers other issues. 

The consultation closes on 2 December 2024 and details of how to respond are on the Government’s consultation website. Local authorities will have varying views on the issues and so we encourage them to respond direct to the consultation. If you do respond direct, please send a copy to us at [email protected]

The LGA will also be responding to parts of the consultation, particularly on the proposals around simplifying industrial action ballots, and in order to assist us with that we should be grateful if authorities would email us their responses to the following questions:

1) In your view, what should the ballot turnout threshold for strike action be following the repeal of the ballot turnout requirement rules set out in the Trade Union Act 2016? (The current turnout requirement threshold is generally 50 per cent and it is assumed any new threshold would be below that).

Although the Employment Rights Bill retains the current six-month (or nine-months if agreed) validity period of a strike ballot mandate, the Government is consulting on whether to extend this period to twelve months. 

2) In relation to that, please let us know how long do typical industrial relations disputes last in your council?

3) Do you agree or disagree with the proposal to extend the standard expiration date of a trade union’s legal mandate for industrial action from 6 to 12 months?

4) What time period for notice of industrial action is appropriate, keeping in mind that longer notice enables the employer to better prepare? (The position under the Bill means the minimum period for that will be reduced from 14 to seven days before the action is due to start). 

Responses should be sent to [email protected] by 15 November, and to assist local authorities with their responses to the above questions and those in the wider consultation we summarise below the main points in it.

This is the most important part of the consultation for local authorities, one of the questions concerning what industrial action ballot threshold requirements should be. At present, the Trade Union Act 2016 (the 2016 Act) requirements are that for a ballot to be valid, at least 50 per cent of those eligible to vote must have voted and, in the case of important public services, which includes fire and education services, at least 40 per cent of those eligible to vote have to vote in favour of taking action. The Employment Rights Bill will repeal those requirements and therefore the consultation is seeking views on how a “meaningful mandate” for industrial action is best provided (see question 17 in the consultation), implicit in which is the extent to which there should still be ballot threshold requirements. 

This part of the consultation also seeks views on proposals to simplify the information that unions must provide to employers in the notice of ballot, as well as changes to the information the unions have to provide on the categories of workers to be balloted. Related to that are proposals around notifying the employer and those entitled to vote of the result of the ballot, and industrial action notices. 

The other main issues in this section on which views are sought concern:

• changing the time limit on the period of a ballots’ validity from six months (or nine months if agreed with the employer) to 12 months; and
• how much notice should unions have to give employers of industrial action. The position under the Bill is that the period will be reduced from 14 to seven days before the action is due to start. However, the Government is seeking views on this issue as it recognises that providing sufficient notice better enables employers to prepare for industrial action, which is especially important in public services. Therefore, it may be that the period is increased from seven days, but we do not anticipate it would be increased to more than 14 days.

This part of the consultation concerns the statutory trade union recognition process, and so is of less relevance for local authorities as local authorities routinely already recognise unions.

Under the current law, in cases of industrial action a union is only protected from damages claims from an employer where the statutory requirements are followed, including in terms of balloting and giving notice to employers, and it being properly authorised by the union. If they are not followed, the action is classed as unprotected.

Where the action is unprotected, one consequence is that the union loses its immunity from damages claims. However, a union can protect itself from losing its immunity if it repudiates that action, in line with the requirements in section 21 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Government is considering amending the repudiation requirements, broadly speaking to make them less onerous for the union.

It will be relatively rare in local authorities that they face a situation where repudiation is in question, so this part of the consultation is less relevant for authorities.

As the law currently stands, a union will lose its immunity from damages if it calls its members to take industrial action before the end of the ballot. Sometimes that might happen for example when the ‘prior call’ is made by a union official not authorised to call the action, and the consultation states that such a ‘prior call’ cannot be rectified by the union repudiating the action   and then seeking to conduct a proper ballot.

The Government believes that is unfair where the ‘prior call’ is made because the union members genuinely fear for their safety. Therefore, the proposal is to amend the legislation so that the union would not subsequently be prevented from taking official protected industrial action, once the proper balloting procedure had been conducted, in circumstances where the ‘prior call’ had taken place in an emergency situation. The Government is seeking views on that proposal as well as what should be meant by an “emergency situation”.

It will be relatively rare in local authorities that they face a ‘prior call’ situation, so this part of the consultation is less relevant for authorities.

The Employment Rights Bill will give trade unions rights to access workplaces, to meet, represent, recruit or organise workers, as well as to facilitate collective bargaining. That is done through an access request, and should an employer fail to respond to or agree to allow access, a complaint can be made to the Central Arbitration Committee (CAC). Importantly, the right applies irrespective of whether the union in question is recognised by the employer.

This part of the consultation concerns the CAC enforcement process. Therefore, it may not have any substantial impact on many local authorities as they will already routinely allow unions access to workplaces  , and will be familiar at dealing with different unions and managing the relationships between them. 

This part of the consultation concerns union political funds, which are separate funds that unions must establish if they wish to take part in political activities. Since 1913, unions have had to ballot their members on the establishment of such a fund, and since 1984 ballots have had to be held every 10 years if a fund is to continue.

Further, the 2016 Act introduced a requirement that new trade union members have to opt in to pay into a political fund, rather than being automatically enrolled with the ability to opt out, as well as requiring unions to notify / remind those members on an annual basis of their right to opt out at any time.

The Government is proposing to abolish the 10-year balloting requirement. It is also considering amending the opt-out reminder so it is required only every 10 years.

These proposals will have no direct effect on local authorities in their employer role and therefore this part of the consultation is of less relevance for them.