Trade Union Bill risks seeming like overkill

At the last election the Labour and Conservative parties proposed target rates for the national minimum wage that were near identical. Then, in July 2015, the chancellor announced his plan for a 'national living wage' (NLW). The NLW is to be implemented by the National Minimum Wage (Amendment) Regulations 2016, which come into force on 1 April 2016.

The NLW is not, perhaps confusingly, the same thing as the more familiar 'living wage'. The latter is a rate proposed for voluntary adoption by employers by the Living Wage Foundation and is presently set at £8.25 an hour (or £9.40 in London). The national living wage consists of the addition of a further, age-related national minimum wage tier. It is initially set at £7.20 and is payable only to those who are older than 25. Those under 25, it seems, do not require a living wage. Until one reaches 18, the rate is £3.87. That rises to £5.30 on one's 18th birthday and £6.70 when one turns 21. The new regulations also increase the potential penalty payable by defaulting employers from 100 to 200 per cent of the under-payment.

Industrial action

Meanwhile, the Trade Union
Bill continues its bumpy progress through parliament. In 1984,
Mrs Thatcher's government introduced an elaborate series of balloting requirements that had to be met if industrial action was to be lawful. In the ten years from 1975 to 1984, the average number of working days lost to industrial action was around 11,075,000. In the period from 2005 to 2014 it has been about 640,000.

Cynics have suggested that
the complexity of the balloting requirements was intended as a snare. Without a valid ballot, the union loses its protection against tort actions. The consequences of even a technical failure to comply with the requirements might be ruinous. Whether or not the cynics are right, the decline in the number of days lost is dramatic.
It has been matched by a long-term decline in trade union membership. In 1979 there were more than 13 million members of trade unions. In 2014, there were around 6.4 million, of whom 2.7 million were in the private sector. Against that background,
the present government's determination to push through further restrictions risks seeming like overkill.

The most eye-catching proposals alter the support required before lawful industrial action may be taken. At present, industrial action requires the support of a majority of those voting. However, there is no minimum turnout requirement - a ballot will authorise industrial action even if only a small proportion of those eligible to vote do so. The Bill proposes to amend section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992 to introduce a requirement that 50 per cent of those who were entitled to vote have done so.
In practice, therefore, the support of a little over 25 per cent of those eligible to vote will be required.

Stringent requirements

A still more stringent requirement is imposed where the majority of those entitled to vote are normally engaged either in 'the provision of important public services' or 'activities ancillary to [such] provision'. In that case, 40 per cent of those entitled to vote must have backed the industrial action. The detailed definition of 'important public services' is to be left to regulations but they must fall within one of the following categories: health services; education of those aged under 17; fire services; transport services; decommissioning of nuclear installations and management of radioactive waste and spent fuel; or border security.

There are other tweaks. Voting papers have to be more specific about the type and duration of action proposed. Employers will have to be given two weeks' notice of industrial action - twice as long as before.

More significant for unions is a prohibition on the deduction of union subscriptions from the wages of public sector employees. Furthermore, members will have to opt in, in writing, in order to contribute to their union's political fund. No prizes for guessing what the underlying purpose of that provision is.

Longer-term developments of interest to employment lawyers include the government's forthcoming response to its consultation on implementing the requirement for publication of gender pay gap information.
In 2014 the gap between male and female earnings narrowed to 'only' 9.4 per cent. The aim is to further narrow that gap by requiring large employers to be transparent about the gap within their own organisations. It is not yet clear whether the requirement will be to produce a single organisation-wide figure or more fine-grained data that will allow comparisons across particular grades.

The obligation is likely first to bite on those who employ more than 500 people but will ultimately apply to those who employ 250 or more. Employers cannot be required to publish more than once a year, but longer gaps between reports are being considered. For employers who want to get ahead of the game, the Equality and Human Rights Commission publishes a useful equal pay audit toolkit on its website.

Sean Jones QC is a barrister practising from 11KBW @seanjonesqc www.11kbw.com

Copyright & permissions