Trade Union Bill

Written evidence submitted by the CBI (TUB 23)

Updating our industrial relations framework is critical to the continued growth of the UK economy. The current legal framework is out of sync with the modern workplace and today’s employment relationship. Reform is necessary to democratise and modernise the law.

Business backs plans to modernise our industrial relations framework. Over the past three decades workplaces have rapidly evolved and a new more flexible and individual employment relationship has grown up. While employment law has been transformed in recent years, union laws have not moved on at the same speed. The employee voice must be returned to the centre of our industrial relations framework because our laws too often empower union leaders rather than union members. Policies should push both employers and employee representatives to make decisions that are good for the long-term health of the firm and the economy. What Britain needs now is a modernised legal framework for industrial relations – one that reflects today’s workplace, not the 1980s. It should help to drive the economy forward while recognising the valuable role that trade unions play in workplaces where employees want to be collectively represented.

In this briefing we argue that:

Strike ballot thresholds will put the employee voice to fore of our industrial relations framework;

Businesses and the public need more time to prepare for industrial action;

Greater transparency during industrial action is needed;

Enforcement of the regulations must be strengthened and penalties increased for non-compliance.

Strike ballot thresholds will put the employee voice at the fore of our industrial relations framework

Industrial disputes are best resolved within the workplace.

Industrial action should be the last resort, after dispute resolution has been unsuccessful. When called, industrial action should have a clear, democratic mandate from the workforce. The CBI supports the introduction of a 50% turnout threshold for all strike ballots because it will ensure over a quarter of the workforce are in favour of a strike.

The CBI also supports the 40% test for important public services and would like to see the government go further and apply both tests to all strike ballots. The introduction of strike ballot thresholds does not contradict any UK ratified ILO conventions, or undermine any EU rights. This is about ensuring the employee voice is democratically heard in industrial disputes. Too often we see strikes go ahead on the low turnouts, or with the support of a small proportion of the workforce. In 2014, thousands of schools were closed following a ballot that achieved a turnout of 27%. [1] Earlier this year, a trade union called a strike based on the support of just 16% of bus drivers. [2] This cannot be right. Industrial action should never be the result of apathy among mainstream union members. To ensure the employee voice is heard, the CBI would like to see the law changed to require both a simple majority and the support of 40% for all strike ballots. This mirrors the existing and well established statutory recognition rules which require trade unions to demonstrate support from at least 40% of those balloted as well as a majority of those voting. The rule has worked very well in practice, with both sides respecting the outcome.

It is important that the government delivers a framework that is workable for both employers and employee representatives. Employers, employees and trade unions will require clarity over which threshold applies to whom within each workplace. To deliver this clarity the government should not seek to identify occupations or functions within the identified sectors, but apply the 40% threshold to all workers engaged in that sector. We are concerned that drawing up a list of specific occupations would not deliver the clarity that is required, particularly given the complexity of outsourced public sector contracts.

The government spends a total of £187bn each year to deliver the goods and services on which the UK public depend and 200,000 private and third sector organisations are part of the extensive supply chains. [3] Within these supply chains there will not be a common list of occupations that is easily identified – these will all depend upon the individual business framework and how they organise their job families. Establishing and maintaining a list of common occupations would be a particularly onerous task for the government and would, more importantly, risk frequent legal challenge unless trade unions and employers were in agreement about the content of the list. Applying the threshold to whole sectors would deliver the clarity required, rather than attempting to list job functions or occupations and critical ancillary roles.

Businesses and the public need more time to prepare for industrial action

When strikes are called it is necessary that all parties – businesses and the public – have sufficient time to prepare and take the necessary steps to minimise disruption.

Businesses have a responsibility to customers and their supply chain to maintain services and production during a period of industrial action. Businesses support the clause in the Bill to extend the notice period before industrial action from 7 to 14 days. This will allow both businesses, workers and the public to take the necessary steps to plan for the disruption caused by industrial action. We would suggest there is also a case for a similar requirement to give businesses 14 days’ notice before a ballot is held. The additional time prior to a ballot would allow businesses and unions greater time to reach a resolution without undue pressure of a strike hampering discussions.

Businesses also support the ballot mandate expiration proposals in the Bill. To ensure that industrial action is only ever brought about following an active and positive decision from the workforce it is important that ballots are limited to the original dispute, not extended to other matters.

In the run up to a strike ballot rumours and misinformation can circulate. Employees should be fully informed about the dispute from both parties ahead of a ballot. The CBI support the provisions in the Bill to require unions to provide information about the matter in dispute. The Bill’s requirements to include information on ballot papers are reasonable. It requires unions to identify the issues in dispute, the form of action that might follow if action short of a strike is suggested, and the proposed period in which action is expected to take place. To ensure employees are fully informed however, we believe employers should also have the opportunity to include a concise statement about the dispute alongside the ballot paper if they wish. The statement would be required to cover the scope, nature and reason for the dispute to ensure union members can take an informed and considered decision about the industrial action.

Greater transparency during industrial action is needed

The current status of the picketing Code of Practice does not provide a great enough incentive for trade union members to remain within the prescribed guidelines. Whilst many unions observe the guidelines of the Code, CBI members have witnessed trade union activity that falls foul of the current guidelines in recent years. Greater transparency around industrial activity would provide greater clarity about what is lawful activity and what is not. Business supports the proposal to make Section F of the Code legally enforceable. The CBI would, however, like to see the government go further and reasonably transpose the entire Code.

The proposal to require trade unions to publish protest and picketing plans 14 days in advance of industrial action and the appointment of a picketing supervisor has the support of business. Clearly setting out how the picket or protest will be organised and establishing a named contact will provide greater clarity about which activities are part of legal industrial action and any activities that fall outside of the prescribed guidelines. The Code has encouraged these behaviours for a long time, so it would be a small step that would be easily taken in most workplaces. The Bill does not require unions to provide every last detail about their planned industrial action – e.g. their plans for using social media.

Enforcement of the regulations must be strengthened and penalties increased for non-compliance

A strong legal framework is one that is effectively enforced and drives compliance. It is for this reason the CBI supports the proposals to enhance the role of the Certification Officer to ensure the regulations are effectively enforced and incidences of non-compliance are properly investigated. The CBI has however, long called for stronger penalties for non-compliance. For example, where the Certification Officer find a union is involved in wildcat action, it needs effective sanctions to act as a deterrent. Under the current law, damages may be sought against unions which fail to comply with various obligations, but those damages are capped according to the size of the union. The union cap was introduced in 1982 and has not been uprated since. Meanwhile, capped limits faced by employers, such as the cap on compensation for unfair dismissal, have increased significantly. [4] The CBI believes the cap on damages should be lifted and a more persuasive deterrent for non-compliance with the law should apply – a daily penalty should be applied by the courts, uprated automatically uprated over time.

During industrial disputes effective enforcement of existing civil and criminal law is also essential. Actions that are undertaken that intimidate, or cause damage property or people must be dealt with by the appropriate authorities regardless of whether they occur during a period of industrial action. There is already a criminal framework in place for dealing with reports of intimidation and harassment – the focus should be on ensuring these laws are properly enforced by the police rather than introducing a new criminal offence of intimidation on the picket line. There CBI supports the government’s commitment to engage with the Crown Prosecution Service, police and relevant government departments to ensure the existing powers are used effectively.

October 2015

[1] House of Commons, 9 July 2014, vol 584, col 292

[2] TfL press statement, January 2015 accessed: (01/10/15)

[3] CBI, The economic footprint of the public services industry, 2014

[4] CBI, Keeping the Wheels Turning, 2010

Prepared 14th October 2015