The Employment Rights Bill ("the Bill") makes significant changes to trade union related laws and goes a lot further than the repeal of the minimum service level legislation introduced by the Conservative government.
Higher profile within workplaces
A number of measures will ensure unions have a higher profile in the workplace. This includes a right for workers to receive a statement of the right to join a trade union alongside the Employment Rights Act 1996 section 1 statement of particulars of employment (i.e., the requirement to provide a written contract of employment). There is also a new right for unions to request access to workplaces for certain purposes including meeting, representing, or recruiting workers of facilitation of collective bargaining. Details of the form, content, and manner in which the statement will be provided is to be set out in secondary legislation.
The detail of the right to request access procedure (and potentially any workplaces that are exempt from it) will also be set out in secondary legislation. However, it is clear from the Bill that if an employer chooses not to negotiate an access agreement, or agreement cannot be achieved, the Central Arbitration Committee ("CAC") may determine the matter. Employers may only refuse access entirely where "it is reasonable in all the circumstances to do so". The CAC will be empowered to hear complaints about breaches of access agreements and have powers to vary the agreement, order access and impose financial penalties.
Recognition
The Bill enables, via future secondary legislation, the threshold for compulsory trade union recognition applications to be lowered to as low as 2% of the workforce from the current 10%. The requirement for a recognition ballot to have a turnout of at least 40% of the relevant bargaining unit is removed, as is the requirement at the application stage for a union to demonstrate that there is likely to be majority support for recognition. Obviously, this has the effect of simplifying the recognition process.
Industrial action
The ballot requirement for industrial action is lowered to a simple majority of those who vote, and where action is to be taken there are less onerous obligations on unions. This includes a reduction of the notice that must be given of a strike from 7 to 14 days and removal of the requirement to supervise pickets.
Workers and Employees are to be provided with additional protections when taking part in industrial action. For workers this means a new protection from detriment, and for employees' protection from dismissal for taking part in industrial action for the length of the strike action, not just the current protected period.
Trade Union Representatives
For workplaces with recognised unions, the Bill introduces "union equality representatives". Their function would be to promote equality, providing advice and support to members and consulting with the employer on relevant matters. As with existing Trade Union Representatives ("TU reps"), equality reps would have a right to paid time off to carry out these duties. Employers are to be required to provide TU reps with "reasonable facilities and accommodations" to carry out their duties.
Blacklisting is to be extended to cover discriminatory actions by bodies other than employers or employment agencies.
Repeal of recent "anti-union" legislation
The repeal of the Strikes (Minimum Service Levels) Act 2023 ("the MSL Act") and the majority of the Trade Union Act 2016 ("the TU Act") had been confirmed in advance of the Bill being published - it is the repeal of parts of the latter that allows for a number of the above-mentioned changes. The commencement provisions in the Bill confirm that these two repeals will be the first sections to come into force, the MSL Act being repealed as soon as the Bill passes and the relevant provisions of the TU Act two months later. The UK government has acknowledged that the repeal of parts of the TU Act will leave a legal framework that is over 30 years old and has committed to seek views to update and reform the framework - that will include views on ballot requirements, industrial action, and the trade union recognition process.
Sectoral bargaining
When first mooted, Labour proposed a widespread use of fair pay agreements ("FPA") for sectoral collective bargaining. Subsequently, that was restricted to the adult social care sector in England and Wales which is what appears in the Bill. Consultation is to take place prior to secondary legislation setting out the detail of processes such as how FPA's will be negotiated and their scope.
The Bill also establishes the School Support Staff Negotiating Body ("SSSNB") for school support staff in England. The Bill gives the Secretary of State powers to, amongst other things, ratify agreements reached by the SSSNB on school support staff terms and conditions, and to issue statutory guidance in relation to school support staff terms and conditions or training and career progression.
Timescales for implementation
With the exception of the provisions relating to repeal of the MSL Act and the TU Act referred to above, the Bill is largely an enabling piece of legislation. It provides for secondary legislation to set out detail and bring into force the new rights and obligations. Significant consultation is expected on the trade union related provisions, and this has begun with a consultation opening on 21 October. The consultation can be found at creating a modern framework for industrial relations and will close on 2 December 2024. The Bill itself is unlikely to come into force before summer 2025, and the UK government has indicated that the requisite secondary legislation will not be in force until sometime into 2026. In the meantime, employers should engage with and take the opportunity to respond to consultation.
