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The Government has quietly introduced a raft of changes to its flagship workers’ rights legislation that will strengthen unions’ rights to organise staff and to clamp down on rogue employers.
The latest changes, which are now before the House of Lords, have seen Business Secretary Jonathan Reynolds expand trade unions’ new access rights to go into workplaces, and slash Conservative Government’s red tape on strike ballots.
Dozens of Government amendments were tabled and passed ahead of the bill’s report stage earlier this month. But there has been little analysis of what they mean.
The new changes to the Employment Rights Bill include an overhaul to rules on how trade unions can become officially ‘recognised’ by employers to bargain over pay and conditions, making it easier for unions to win official status in the workplace.
The Government has also removed the requirement for unions to hold a ballot every ten years to maintain their ‘political funds’. Currently, unions which want to spend money on party political activities – like campaigning for the Labour Party – must set up a separate political fund which members have to vote to maintain every ten years.
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That vote will now be scrapped, and replaced with a reminder every ten years that members can opt out of that fund if they wish. It seems to be an attempt to balance individual choice over union campaigning while reducing administrative burdens that are understood to cost unions millions.
Asked if No 10 was proud of the legislation, the PM’s spokesman said: “Yes, it’s the biggest upgrade in workers rights in a generation. It will deliver higher productivity, higher growth, and is an important part of the Government’s agenda to deliver higher living standards across the country.”
Ministers also plan to removed minimum turnout thresholds for industrial action ballots, though this now appears to be coming in future legislation. A TUC source said they were pushing for the Government to push ahead with repealing minimum turnouts as soon as possible after this bill receives Royal Assent.
The Conservatives’ 2016 Trade Union Act meant that workers in ‘important public services’ – including health and education – were only able to strike if 40% of those who were entitled to vote in the ballot answered “Yes” to industrial action, effectively meaning all non-voters were treated as ‘No’ voters. The same principle, of course, does not apply to the MPs who introduced it.
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The Government will repeal the Minimum Service Levels Act passed by the last Government, which (if used) would have required workers – even those who had voted to strike – to turn up to work in the event of strikes in ‘essential’ public services, which included health, education and transport.
Another amendment removed the obligation for unions to provide employers with detailed breakdowns of which categories of employees will participate in strikes.
At the same time, the notice period for industrial action will rise from seven to ten days.
But ballots for workers to take industrial action will now be valid for 12 months, rather than six months, giving unions more bargaining power over employers. It means Unions won’t need to re-ballot as frequently during extended disputes – such as the recent rail dispute which saw unions have to issue new ballots to renew their strike mandates.
A central pillar of the reforms gives unions the right to request access to workplaces to organise them.
The original bill focused on physical access to workplaces, but following amendments, the bill now explicitly includes digital communication rights when unions are negotiating access to workplaces.
In theory, it will enable unions to reach agreement with bosses to contact all workers at an employer through email, messaging and online platforms. But there is no guaranteed right – contrary to union requests – for unions to go into workplaces to organise without agreement. And if they don’t have a strong union presence there already, winning that negotiation may prove difficult.
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Union lawyer and Labour peer Lord John Hendy KC told Byline Times there were a “number of improvements” but the bill still “doesn’t go far enough”.
“It doesn’t do all the things [Labour’s pre-election] New Deal for Working People committed the Labour Party to do. There’s so many [missing pieces].
“There’s no mechanism for collective bargaining across particular industries – that was an essential ingredient for the New Deal. Negotiating bodies for social care and school support staff does not constitute collective bargaining. The Government can override whatever they say, and there is no mechanism for extending that to other sectors.
“They haven’t remedied the incompatibilities with industrial action law and our international legal bodies. For example, permitting solidarity industrial action, which the International Labour Organisation has said over and over again that the UK is obliged to do.”
The ILO has opposed Britain’s ban on so-called solidarity strikes since 1989, and repeated it in February this year.
Lord Hendy added: “It’s very disappointing. [The Government] is certainly saying it’s the greatest upgrade to workers’ rights in a generation. They imply that they are carrying out the commitments in the New Deal. Most people have not read it…People are discussing it without having read it.”
One major gap in Lord Hendy’s eyes surrounds trade unions’ new abilities to access workplaces to organise. He tells Byline Times: “It’s not a right, it’s a freedom to negotiate with the employer. And if they don’t want to reach an agreement, they won’t.
“The union could complain to the CAC, which could make an order for access, but if they don’t comply, the union has no right to enforce it. The CAC could then issue a fine, but the fine goes to the CAC. The union has no right to insist on access.”
Lord Hendy will be putting down amendments to strengthen the bill.
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The Central Arbitration Committee, which currently oversees union ballots of workers to become recognised in a workplace, will be given more clout and flexibility in handling disputes.
Some of the most substantial changes come in a series of new clauses creating a more robust system for tackling wage theft and employment rights violations.
Regulators will be able to issue “notices of underpayment” requiring employers to pay workers what they’re owed, with penalties for non-compliance. The Secretary of State will also gain powers to bring employment tribunal cases on behalf of workers who aren’t pursuing their rights, and to provide legal assistance in those employment tribunal cases.
Business groups are likely to kick off about the cumulative impact of these changes, having already criticised the crackdown on zero-hours contracts, and extension of ‘day one’ workers’ rights.
The changes face further parliamentary scrutiny in the House of Lords, with the first major debate in the Lords scheduled for this Thursday (27th March), before returning back to the Commons in the coming weeks.
The bill also establishes a right for workers on zero and low-hours contracts to receive guaranteed hours, based on their regular working patterns over a reference period. Workers will have a new right to reasonable notice of shifts, requiring employers to provide reasonable notice for scheduling, cancelling or changing shifts, with employers forced to make payments to workers for short-notice changes.
Union equality reps will be given paid time off and facilities to conduct their work, equalising their rights with that of health and safety reps and other union figures for the first time.
The bill will scrap the current two-year wait to qualify for challenging unfair dismissal, while other changes include banning fire-and-rehire practices, extending Statutory Sick Pay to more workers, and launching a new Fair Work Agency to tackle employment malpractice.
This piece has been updated to note that removing minimum turnout thresholds is now expected to be included in future legislation, not this bill.
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