Trade Union Act 2016 and 01 March 2018

The Trade Union Act 2016 amended the Trade Union and Labour Relations (Consolidation) Act 1992 in a number of areas.  For example:

• Requiring  a 50% turnout in strike ballots
• Requiring 40% of the turnout to support industrial action in ‘important public services’
• Making provision for electronic ballots
• Making changes to ballot paper information (effectively requiring the ballot paper to specify the type of industrial action that is to take place)
• Increasing reporting responsibilities
• Extending from 7 to 14 days the notification a union must give the employer of the intention to hold industrial action
• A 12-month transition period ensuring members opt-in to political funding (as opposed to the position where they have to actively opt-out)
• Requiring publication and, possible restriction, of facility time in public sector employments, and
• Placing restrictions on ‘relevant public sector’ employers being able to operate the ‘check-off’(the collection of union subscriptions via payroll)

Not all of these were effective at the same time and were subject to legislative ‘transitional periods’. Some of them have not been made effective at all, yet. However, the end of a transitional period is looming:

Trade Union Act 2016 (Commencement No. 3 and Transitional) Regulations 2017 brought into effect the 12-month transitional period applying to the part of trade union subscriptions which may contribute towards political funding.  The purpose of the transitional period is to allow a period of preparation before that part of the legislation takes effect.   This transitional period started on 01 March 2017, ends on 28 February 2018 so preparation time is nearly over. 

At the same time as the above Transitional Regulations, the Trade Union Act 2016 (Political Funds) (Transition Period) Regulations 2017 came into force.

At the end of the transition period, i.e. on and after 01 March 2018, the overriding intention of the 1992 Act (as amended by the 2016 Act) is that no member of a trade union will be obliged to contribute towards political funding if they do not wish to.

This applies to ‘new members’ who are:

• a) A person who joins a trade union that has a political fund on or after 01 March 2018, or
• b) A person who is a current member of a trade union that has a political fund but did not have one immediately before the end of the above transition period

Therefore, from 01 March 2018, new members to a trade union that has a political fund will have to actively opt-in to the fund.  Application forms to join a union must make it clear that they have the right to opt-in but will not suffer any detriment if they do not.  Trade unions will be required to send annual notifications to new members to remind them of their right to withdraw their opt-in, i.e. opt-out.

If a trade union makes a deduction without the specific opt-in to political funding, this will automatically be classed as unlawful.

Existing members of trade unions and exiting political funds established before 01 March 2018 will not see any changes.  They will be subject to the existing procedures for withdrawing political funding under the 1992 Act (Chapter VI of Part 1).

In a timely manner before the end of the transitional period, the Department for Business, Energy and Industrial Strategy (BEIS) have published guidance for trade unions ‘their members and others’.

All trade unions, existing and future members will want to be reading this.

As always, we have to consider the implications of devolution. 

• In the first place there is no Northern Ireland consideration. The Trade Union Act 2016 and the 1992 Act do not apply there where trade union membership and activity is a devolved responsibility. Both the 1992 and 2016 Acts apply only in Great Britain
• There is no England consideration, as England is not a devolved administration
• In Scotland, the Great British legislation stands unaltered. The ￡250,000 Trade Union Modernisation Fund designed to mitigate the impact of the 2016 Act has no impact on this
• In Wales, the Trade Union (Wales) Act 2017 applied to devolved Welsh authorities but not in respect of this part

In short, the above applies to all trade unions in Great Britain and 01 March 2018 is an important date.