Collective voice: how the employment rights bill could boost the trade union presence at work

The government’s employment rights bill takes the axe to Tory anti-union measures and sets out a range of new rights. 

The law, which is expected to pass Parliament by the middle of next year, will repeal the notorious minimum service level rules that allowed bosses to order striking workers into work.  

The vast bulk of the Trade Union Act 2016, whose provisions included unfair hurdles to workers taking industrial action, is to be scrapped too. 

But the bill also sets out a swathe of measures that will better equip unions to operate in modern workplaces. 

Key reforms include: 

• Union access to workplaces 
• Fairer balloting rules 
• Greater protection for trade unionists 
• Beefed-up collective consultation rights 
• New rights for equality reps. 

The government also announced that it is to use powers under existing laws to finally allow unions to use electronic and workplace voting in key ballots. 

The need for change

The move comes in the wake of growing evidence that a strong union workplace presence is good for workers and for the economy. 

Voices that previously promoted deregulation, such as the Organisation for Economic Cooperation and Development, have noted the benefits of collective bargaining for productivity, industrial change, equality and employment. 

A recent Cambridge University study of labour laws over the last 50 years found that strong employee representation laws consistently led to higher employment. Laws that protected rights to take industrial action meanwhile appeared to contribute to higher unemployment, productivity and to workers getting a higher share of national income. 

Likewise a NIESR study found that a strong union presence boosted productivity. 

Yet the proportion of workers who can negotiate their pay and conditions collectively via their trade union has declined steadily in recent decades, particularly in the private sector. 

Below we consider some of the key measures in the employment rights bill. 

Access 

In the past, people generally learnt about unions and experienced the benefits of collective bargaining simply by going to work. But for many, especially in the private sector, this is no longer the case. 

When people who are not union members are asked why they haven’t joined, a common response is that they’ve never been asked! 

Many employers recognise the benefits that unions bring to their workforce and their business. But others take extraordinary steps to prevent unions from even speaking to their workforce, as demonstrated by Amazon’s response to the GMBs’ recent recognition campaign. 

The bill will change this by enabling unions to enter workplaces to meet, represent, organise and recruit workers and to facilitate collective bargaining.  

It proposes a detailed process for facilitating access. The TUC and unions will be seeking to ensure that this is workable and doesn’t give employers the ability to delay or prevent union access. But establishing the principle of union access rights is an important step. 

Trade union recognition 

The law currently makes it difficult for workers to gain the right for their trade union to bargain collectively with an employer on pay and conditions. 

Union recognition is usually agreed voluntarily between employers and unions. But where employers don’t agree voluntarily, the union can trigger a statutory recognition process.  

The weakness of the current system was recently shown when internet giant Amazon undertook a range of union-busting measures to narrowly defeat GMB’s efforts to gain recognition. 

The bill delivers on the government’s commitment to simplify the statutory recognition process. 

It removes some barriers that unions currently face to trigger this process and opens the way to replace the requirement that 10 per cent of workers are members with a lower threshold. 

And where half the workers in a bargaining unit are union members, recognition will be automatically awarded. 

It also brings recognition ballots into line with democratic principles by establishing that a simple majority voting in support will lead to recognition. The bill will remove the additional requirement for 40 per cent of all workers to vote in support. 

The TUC will make a strong case for a two per cent membership threshold to trigger statutory recognition processes. 

Fairer rules on union voting 

Even as wider society has moved towards using electronic methods for everything from banking to ordering groceries, unions have been forced to use expensive and inconvenient postal ballots for key votes. 

These are required for votes including key union elections and ballots on industrial action.  

But this discourages workers from voting and is particularly inconvenient for groups such as young workers who move home more frequently. 

The government has now said it will use powers it has to introduce regulations via Parliament that will also allow unions to choose whether to undertake electronic and/or workplace balloting. 

More protections for trade unionists 

Following UNISON’s recent victory at the Supreme Court over the disciplining of striking trade unionist Fiona Mercer, the government has proposed rules limiting the ways employers can take action against workers for taking industrial action.  

Crucially, which actions will be barred has yet to be finalised.  

The government is also dropping the 12-week limit on the unfair dismissal protection offered to workers who go on strike.  

This could make it easier for disputes to be resolved as there is less reason for workers to get their action in early while they still have legal protection. The 12-week limit has been criticised by bodies like the International Labour Organisation for being out of step with international law. 

The bill also gives ministers more powers to deal with the production of blacklists used to target trade unionists and bar them from work. 

Equality reps 

The government has delivered on its promise to create new equality reps, proposing amendments to existing legislation to ensure that new equality reps will receive paid facility time to carry out a wide range of equality related functions. 

Equality reps will play an important role in tackling workplace inequality, supporting trade union members, and preventing issues from arising in the first place. 

The TUC would like to see facility time provisions strengthened to ensure that all union reps receive the necessary paid facility time to enable them to properly carry out the full range of their functions. 

Fair Pay Agreement 

Collective bargaining between workers and employers over pay and conditions across a whole sector is common in many other countries but rare in Britain today. 

The bill will enable the government to bring forward a framework for a Fair Pay Agreement process in the adult social care sector. This will enable workers, trade unions and employers to negotiate fair pay, terms and conditions, and training standards in a sector notorious for poor pay and conditions. 

The government has previously said that such agreements could also be rolled out to other sectors. 

Statement of trade union rights 

There is to be a new requirement on an employer to provide a written statement of the worker’s right to join a trade union to their workers. 

Currently many workers enter workplaces with little or no trade union presence and are unaware of their rights. 

Repealing anti-union laws 

The government is using the bill to scrap minimum service level laws introduced last year by Tory ministers. 

These allow bosses in some services to order workers to attend work during industrial action, even though this has been supported in a legal, democratic ballot. If they didn’t, workers could be fired and unions face large damages. 

The bill also ditches virtually all of the Trade Union Act 2016. 

This includes:  

• Arbitrary thresholds in industrial action ballots, including the requirement for 50 per cent of those entitled to vote to turn out and for 40 per cent of all workers to support action in what are deemed important public services. Action will now require simple majority support to go ahead. 
• Unnecessary requirements regarding information on industrial action ballot papers. This was designed to make industrial action more difficult for unions to organise and easier for employers to challenge in the courts.  
• Restrictions on pickets, including the requirement on unions to appoint a picketing supervisor. 
• Additional powers for the Certification Officer, who regulates unions, such as the ability to impose fines. 
• A levy paid by unions for the costs of being regulated. 
• Restrictions on collecting union subscriptions from pay cheques in the public sector. 

Conclusion 

For the last 14 years unions have faced an onslaught of anti-union legislation. 

Tory governments have sought to tip the balance of power in the workplace further towards employers and away from workers. 

A lot of very important detail has yet to be worked out.  

But these reforms promise not only to free unions from the shackles of more recent anti-union measures but also to bring in important new rights to better enable unions to recruit and organise workers and ultimately to improve pay and conditions in the workplace.