After ten months of parliamentary and extra-parliamentary struggle, the Trade Union Bill has now become the Trade Union Act 2016 following the gaining of Royal Assent this week. Thoughts must now turn to how unions and workers will defy, resist and subvert the new restrictions on strike activity and industrial action if they are not to become further emasculated and enfeebled. But before this is done, some stock needs to be taken of the union campaign to halt and amend the Trade Union Bill.
So while the main parts of the Bill have remained intact, the defeats and concessions have altered the initial version of the Bill when it was presented to parliament in July 2015 following the Conservative Party's victory in the general election of May 2015 and the content of the Bill forming part of its election manifesto.
The concessions and defeats were the result of two specific processes. First, the work of the Trades Union Congress (TUC) in creating an alliance of the disaffected in the House of Lords, comprising Labour, Liberal Democrat, Conservative and independent peers. These peers put forward amendments to Bill which the government then felt compelled to accept. This was because of the second process, namely, the Government's desire to offer concessions in order to gain support from the union movement to moboilise its resources to secure a 'remain' vote in the referendum on European Union membership on 23 June this year.
The concessions comprised:
• Although public bodies are compelled to provide information on the extent to which they pay for union representatives to have time off in work time to carry out union duties, no limit on the extent of this funding for time off (called 'facility time') will now be imposed.
• Existing union members will no longer be forced to 'opt in' to paying the political levy of their unions (which are used to campaign on political issues with and sometimes fund the Labour Party). Instead, only new union members will be required to 'opt in' and there will be increased period of 12 months (previously 3 months) for this change to be brought in.
• The government has agreed to a review of e-balloting for strike and industrial action ballots within six months. Before it refused to contemplate this over alleged fears over security of the process. No determination has been as to the outcomes that will result from the review.
• The system of deducting union subscriptions directly from workers' wages (called 'check off') in the public sector will not be abolished. If this had happened, unions would have had to regain authority to take their subscriptions directly from members' bank accounts, in the process losing members and income. Unions will now have to pay the cost of administering the 'check off' system in the public sector where they did not already.
• Ancillary workers (like cleaners and support staff) in the public sector will not be covered by the second threshold for strikes and industrial action in essential services (see below).
• Measures to restrict protest, such as giving employers detailed plans for pickets and social media campaigns two weeks in advance, or making everyone on a picket line show their personal data to the police, employers or anyone who asked to see it, have been dropped.
• Safeguards against politicisation of the role of the union regulator, Certification Officer, have been introduced within the newly enhanced powers of the Certification Officer to examine union practise and behaviour and unions will no longer should the majority of the costs of these investigations.
• The government has dropped for the time being the removal of the ban on employers being able to hire agency staff to provide essential cover during strikes.
• Dropping the requirement for a detail explanation of the dispute with the ballot paper so that only now will a summary be required.
But the main parts of the original Bill remained intact:
• All ballot mandates for strikes and industrial action must now include a simple majority turnout of eligible balloted members. Previously, there was no minimum turnout threshold but simply a requirement that a majority voted for action. This is expected to make proposed large strikes in the public sector more difficult to organise.
• In essential public services (health, education, fire, transport, nuclear), there will also be the requirement that at least 40% of all those entitled to vote must also vote for action, meaning that non-voters are treated as 'no' voters. This is expected to make proposed large strikes in both the public and private sectors more difficult to organise. Both the new thresholds are due to come into effect by the end of 2016.
• Reducing the validity of mandates for action to six months when previously there was no time limit to the mandate. The initial proposal was to limit the mandate to four months. However, the mandate can remain 'live' for nine months if both union and employer agree. The consequence, nonetheless, is that more re-balloting will be required unless disputes are settled quickly.
• Increasing notice periods of action from one week to two weeks (unless there is agreement between union and employer to maintain the one week notice period).
• New rules about identifying picket leaders to police (but without necessarily wearing an armband).
• New rules on updating union members' details that potentially increase employers' opportunities to use application for injunctions to prevent or delay strikes.
These remaining elements of the Bill will require a tranche of secondary regulations and codes of practice to be published. Unions made clear that while they welcome the concessions, they remained opposed to the Bill and Labour has stated it will repeal the legislation within a week should it form the next government after the 2020 general election.
When the initial draft of the Bill was presented to Parliament, it looked like the newly elected Conservative government would get everything all its own way. It had a majority of 11 MPs and could rely upon the votes of the Ulster unionist parties as well. Labour with the help of the few Liberal Democrats simply did not have the numbers to make a defeat in the House of Commons a possibility. The few Tory rebels in the Commons did not change this equation.
The campaign outside Parliament (comprising public meetings, lobbying, marches etc) did, however, mean that some Conservative MPs became more open to the arguments that the TUC won support for in the Lords, leading to amendments which were less easy to refute and reject. This happened at a time when Cameron became more worried about the chances of winning the 23 June referendum.
But on the key issues - the meat and vegetables - of the Trade Union Bill on restricting strikes and industrial action, the union campaign recorded no success. Of course, what comes of the review of e-balloting still remains to be seen. This brings into doubt the wisdom of much of the union campaign being directly focussed on defending the right to strike. At a time when strikes are at a historical low, it was always likely that this approach would gain less traction with citizens as unions attempt to mobilise them against the Bill. Maybe a greater emphasis on what unions achieve - what value they add - in terms of wages and working conditions (compared to non-union workplaces) would have had more success because the place of strikes in achieving these gains is low down the list. But then again, with unions being so weak at the moment, maybe no tactic could have assured success.
This brings back to what to do now. Can the union movement defeat the Trade Union Act 2016 in the same extra-parliamentary way its predecessor did with the Industrial Relations Act 1971? Not without a rise in the level of struggle and strength which makes for a bit of a Catch-22 situation.