The Trade Union Bill: Resisting Attacks on TU Freedoms

1. Article 11 and the TU Bill Resisting Attacks on TU Freedoms

2. Introduction (1) Published in July 2015: • Trade Union Bill; • BIS consultation: ‘ballot thresholds in important public services’; • BIS consultation: ‘hiring agency staff during strike action; reforming regulation’; • BIS consultation: ’tackling intimidation of non-striking workers’;

3. Introduction (2) • “Vindictive” and “Unnecessary” • Consider the context: • “a minefield in which it is all too easy to stray away from the paths of safety and legality; • ILO; and • European Convention of Human Rights.

4. Trade Union Bill Areas covered: • Industrial action; • Picketing; • Application of political funds; • Facility time; • Increase in Certification Officer’s powers; and • Power to impose levy on trade unions by Secretary of State. • Plus further announcement of abolition of check-off in the public sector.

5. Industrial Action 1 – Current Position • 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

6. (1) Industrial action – Proposed Position • All ballots: 50% turnout requirement; • ‘Important public services’ – additional 40% support requirement; • Additional information on the voting paper; • Additional information to members (and employers) as to the result of the ballot; • Information to be provided to the Certification Officer as to industrial action in the reporting period; • 14 (instead of 7) day notification of industrial action; and • Ballot mandate to expire after four months.

7. Points To Note • What is the evidence? • Thresholds violate the right to strike Article 11 ECHR and ILO Convention 87 • “essential public services” not “important public services” • “roles” and “functions” need to be sufficiently clear and precise (Article 11) • Mixed constituency? • E-balloting

8. Picketing – Current Position • Right to picket at or near the place of work (different provisions for officials) • No mandatory requirements to reveal “plans”

9. Picketing – Proposed Position Picketing will not be protected unless Appointment of ‘picket supervisor’; • Police must be told name of supervisor, where picketing is to take place and how to contact the supervisor; • Supervisor to be present or ‘readily available’; and • Supervisor to wear badge, armband or other means of identification. Proposed further requirements in relation to “protests” related to pickets.

10. Picketing – Proposed Position 2 Title of BIS consultation: ‘tackling intimidation of non-striking workers’. Seeks views on further requirement for union to publish plans including: • ‘when, where and how many’; • whether there will be ‘loudspeakers, props, banners etc’; and • Whether it will be ‘using social media, specifically Facebook, Twitter, blogs, setting up websites and what those websites will set out’. Possible ‘wider reform’ of Code of Practice.

11. Points to Note • Emerges from Carr Review • Right to Picket protected by Article 10 and Article 11 • Ruling of ILO’s Freedom of Association Committee • Double Standards

12. Agency Workers • The current prohibition on employers using agency workers to break strikes or other industrial action (Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003) to be repealed. • Subject of a separate BIS consultation; and • Repeal of Regulation 7 to be achieved outside the Trade Union Bill. • Makes Article 11 – Devoid of Content

13. (3) Political funds • Current system of ‘opt-out’ to be replaced with a requirement for members to ‘opt in’ to making contributions to political fund; • ‘Opt in’ authority for each member to be renewed every five years (electronic means not available); • Current members only to be treated as ‘opted in’ for 3 months after Act comes into force, after which member authority required; and • Details of political expenditure to be itemised in annual return. • Article 10 and 11 ECHR (Part II of the Lobbying and Transparency Act

14. Facility Time/Check Off - Present • 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

15. (4) Facility Time/Check Off-Proposed (i) Minister may make Regulations imposing ‘publication requirements’ on ‘public authorities’: • how many union officials; • total amount spent paying for facility time; • percentage of pay bill spent on facility time; • percentage of facility time devoted to certain activities; and • facilities provided.

16. Facility time (ctd) (ii) Minister may exercise ‘reserve powers’ requiring public sector employers to ensure that: • Percentage of an official’s working time spent on facility time is restricted; and • Percentage of total pay bill spent on facility time is restricted. Can override entitlements under statute, contracts of employment or collective agreements New Proposal to ban Check-Off arrangements

17. (5) CO’s Powers Certification Officer to have increased powers: • to require unions to produce documents to CO, CO’s staff or other person appointed by CO; • to appoint CO’s staff members or other persons to undertaken investigations; • to exercise a variety of powers without receiving a complaint from a trade union member; • to enforce the new annual reporting requirements concerning industrial action and political expenditure; and • impose fines of between £200 and £20,000.