The Employment Rights Bill: focus on collective rights

In this blog we’ll be focusing on the new Government’s plans for collective rights, which will form a key element of the Employment Rights Bill announced in the King’s Speech today.

A more detailed guide to what is coming down the tracks can be found in Labour’s Plan to Make Work Pay, published before the election. The document sets out some bold reforms to collective rights which, if implemented, will transform industrial relations.

Improving access for unions

Labour proposed new rights for unions to access workplaces for recruitment and organising purposes. It is not clear how this will work in practice, other that the plan is for “a regulated and responsible route” involving the union giving notice and complying with reasonable requests of the employer. To add teeth to this right, Labour has also proposed formally monitoring the new rules, although the mechanism by which this would be achieved has not been set out.

Coupled with the new right, is a proposal to impose a duty on all employers to inform new employees of their right to join a union in the written statement of particulars, and to inform all staff of this on a regular basis.

Employers should therefore give some advance thought as to their contracts of employment and how they will inform existing employees of the new right. Those businesses in industries that are likely to be targeted by unions will also need to consider how access to the workplace will be facilitated in such a way as to avoid unnecessary disruption and protect confidential information.

Simplifying union recognition

While union recognition is often a voluntary arrangement, where agreement cannot be reached it is necessary for the union to go through certain prescribed steps to obtain statutory recognition. The process is pretty onerous and requires the union to demonstrate to the Central Arbitration Committee (“CAC”) that at least 10% of workers in the union’s proposed bargaining unit are members of the union and that a majority of workers within the bargaining unit are likely to support recognition of the union. This is all before the CAC considers the application.

Labour has proposed making statutory recognition an easier process by abolishing the requirement that at least 50% of workers are likely to support the claim before an application can be considered.

The CAC will then only recognise a union where it is satisfied that the majority of workers in the bargaining unit are members. If it is not satisfied then it will arrange a secret ballot and will only grant recognition if it is supported by (i) a majority of the workers voting; and (ii) at least 40% of the workers in the bargaining unit. Labour has again proposed modernising this process such that the unions will only require a simple majority.

The effect of these changes will build on the new access rights and increase the likelihood of union recognition, even where an employer is against it. This may well “up the temperature” for workplace disputes and only time will tell how employers who have resisted applications for recognition navigate the requirement for unions and employers to negotiate “with a view to reaching agreement”.

Repeal of legislation

Labour has also committed to repealing legislation introduced by the Conservatives to restrict union activity.

The Trade Union Act 2016,  and the Strikes (Minimum Service Levels) 2023 are both said to be destined for the bonfire of legislation. What will replace them (if anything) is unclear, but it seems likely that:

• There will no longer be a requirement for at least 50% of all eligible workers to vote on any proposed industrial action;
• The six month mandate (extendable to 9 months) for industrial action will be abolished, meaning that unions can stop and restart industrial action for longer;
• Supervision requirements for picketing will be removed;
• Employers within “relevant services” (in broad terms, key public services) will no longer be able to require workers to attend work to maintain minimum service levels; and
• Shorter notice periods for industrial action will be implemented, likely 7 days.

The exact plans and the likely implementation timetable will become clearer once the Employment Rights Bill, announced in the King’s speech on 17 July, is published.

In the meantime, unionised employers should:

• Consider which disputes may now receive enough support via simple majority for industrial action to go ahead;
• Think ahead about how to cover for workers engaged in industrial action;
• Ensure that they can move quickly upon being given notice of proposed action; and
• Prepare themselves for longer running disputes.

Electronic balloting

Currently balloting for industrial action takes place by post which is both time consuming and costly for unions. Despite attempts at reform, the requirement has withstood valiant efforts to bring the process into the 21^st century. Labour has proposed introducing electronic balloting which will reduce the current time and financial burden on unions, making it easier to organise industrial action.

Conclusion

The changes to collective rights proposed by Labour are radical and will give unions a firmer foothold in a greater range of UK businesses.  And this is all without considering the strengthening of individual employment rights that are also planned.

Of course, many of the proposals will be subject to consultation and it will be a waiting game to seen how many make it through. What cannot be denied is the new Government’s commitment and enthusiasm for rebalancing the workplace.

The GMB Union has called the proposed changes “a once in a generation chance to completely transform the lives of working people”. Employers should recognise and prepare for the change that is coming.