The Trade Union Act 2016 in Great Britain must have been one of the most unpopular pieces of legislation ever for the devolved administrations (in Scotland and Wales).
This is the legislation that was made in line with the Conservative Party’s 2015 Manifesto commitment to provide protection from ‘disruptive and undemocratic strike action’. Its provisions were inserted into the 1992 Trade Union and Labour Relations (Consolidation) Act known as TULRCA.
The reason for its unpopularity with the devolved administrations was the fact that it impacted on public service employers. Public sector administration is devolved from Westminster to the Governments in Holyrood and Cardiff Bay. Wales took action on this with the publication of the Trade Union (Wales) Bill in January 2017, introduced by Mark Drakeford, Cabinet Secretary for Finance and Local Government. It sought to dis-apply three provisions in the Great British TULRCA Legislation as they apply to devolved Welsh authorities:
The Bill was introduced on 16 January 2017 and passed through the 4 bill ‘Stages’. From 19 July 2017 – 15 August 2017, a post-stage 4 period applied, during which time the Counsel General or the Attorney General could look at the contents and raise questions as to whether it was in Wales’ legislative competence to proceed with the Bill and ask for Royal Assent.
On 16 August 2017, the post-stage 4 period expired and the Bill has now been submitted to Her Majesty The Queen for Royal Assent. When Royal Assent is achieved, the Trade Union (Wales) Act 2017 will make the following changes to TULRCA:
Deduction of union subscriptions from wages in public sector – the check-off
TULCRA, as amended by the Trade Union Act 2016 says that public sector employers can only make deductions from wages for union membership if:
The important part of this is the union making ‘reasonable’ payments to the employer that are equivalent to the cost to the public funds of making such a deduction. This provision has not been commenced and is not in force at the moment.
The Trade Union (Wales) Act 2017 simply says that, when commenced, this provision will not apply to devolved Welsh authorities.
Publication requirements in relation to facility time
The Trade Union (Facility Time Publication Requirements) Regulations 2017 from 01 March 2017 require relevant public sector employers to publish, annually, a range of data in relation to their usage and spend on trade union facility time. Based on these reports, TULRCA allows for the power to cap the amount of facility time. This provision will not commence until 3 years after 01 March 2017 when the relevant people have had time to digest the information about the cost of facility time to the public purse.
Again, the Trade Union (Wales) Act 2017 simply says that, when commenced, this provision will not apply to devolved Welsh authorities.
Requirement of ballot before action by a trade union
TULRCA, as amended by the Trade Union Act 2016, requires the support of 40% of those who were entitled to vote in the ballot for industrial action to be in favour in ‘important public services’. A range of Regulations came into force on 01 March 2007 defining these important services. See the Explanatory Memorandum that gives details that these services are the ones that include health, fire and border security.
Again, the Trade Union (Wales) Act 2017 simply says that Regulations under this provision ‘may not specify services provided by a devolved Welsh authority’. The Regulations have already been made and commenced and specify important services in Great Britain. The 2017 Welsh Act simply means that these Regulations cannot be read to apply to devolved Welsh authorities. However, they can apply to cross-border public sector authorities. This includes parts of the National Health Service, where responsibility for services is shared and not totally under Welsh Government control.
The Trade Union (Wales) Act 2017 contains a section entitled ‘Prohibition on using temporary workers to cover industrial action’. This seems to come as a protection from anything that the UK Government may do in the future.
At the moment, employers that are faced with industrial action at the workplace may hire additional temporary staff to cover any disruption. The UK Government consulted in 2015 about removing a section of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 that allows employment businesses to provide agency workers. This never came to anything and was not included in the 2016 Trade Union Act.
In the event that it is considered again, the Trade Union (Wales) Act 2017 provides that a devolved Welsh authority may not hire a worker from an employment agency to cover the duties of someone who is taking industrial action.
In Scotland, the Trade Union Act 2016 will apply in full, as a bid to block its application there was rejected in 2016. However, the Scottish Government announced a Trade Union Modernisation fund of £250,000 in November 2016 with the intention that some of the administration and cost implications are mitigated for Scottish unions.