Barring a dramatic development (such as a  legal challenge), tomorrow’s strike of junior doctors is going to go ahead. In fact it cannot be postponed because eight weeks has now passed since the ballot was held and after that period is ‘ceases to be effective’ (see s.234 of the Trade Union and Labour Relations (Consolidation) Act if you’re keen enough). This means that if the strike tomorrow was called off, the BMA would have to hold a fresh ballot before reinstating the action.

Oddly, the provision which requires action to be taken with four weeks of the ballot (which can be extended to eight weeks with the agreement of the employer) is set to be replaced by the Trade Union Bill which comes before the House of Lords for its second reading today.

If the Trade Union Bill were  in force then the ballot would actually remain effective for four months rather than a maximum of eight weeks – but there would be one very major catch.

Under the current law, provided that some industrial action is taken within the first four weeks (or eight if the time limit is extended) then the union is free to continue calling industrial action for as long as the dispute remains. It is not unheard of for a strike mandate to remain valid for some years while the parties edge towards a settlement or lapse into a weary truce – and there is no need for the union to hold a fresh ballot if it wants to call more action. Currently we have a live ballot in relation to schools where the NUT ballot was held as far back as 2012. The Fire Brigades Union is also still in a dispute where the ballot was held in 2012 and the RMT has an ongoing dispute in relation to night working on the London Tube where the ballot was held in June last year.

The Conservative Party manifesto specifically addressed this issue. It said that a Conservative Government would:

Industrial action that is regarded as having the support of a ballot shall cease to be so regarded at the end of the period of four months beginning with the date of the ballot.

What this means is that once voting in the ballot has closed (that is ‘the date of the ballot’ under s.246) the union has just four months to take its industrial action and must hold a fresh ballot for any action taking place after that period. This time limit includes the time needed to verify the results of the ballot, communicate that result to the employer, give 14 days notice of the action and carry out any further negotiations with the employer aimed at resolving the dispute. It is not possible to extend the period for any reason. Once the four months are up then no further action can be taken without a fresh ballot.

In an article for XpertHR last year I argued that this new provision was bad for industrial relations, would undermine attempts to settle disputes and lead to unions taking more action than they otherwise would have done. I still think that. I don’t think that there is any need for the Trade Union Bill at all, but it has now been passed by the House of Commons and since it is implementing a manifesto commitment, the Salisbury Convention dictates that the Lords cannot oppose it. There won’t even be a vote after today’s second reading debate.

Amendments however, are a different matter – especially if they would bring the Bill more closely in line with the Government’s manifesto. So just in case there are any Peers of the Realm reading this (you never know) can I suggest an amendment that would go a long way to to avoiding that harm that this provision might otherwise do?

In Clause 8, line 14: replace ‘four months’  with ‘twelve months’

That would stop ballots running on for ‘years’ just as the Conservative manifesto promises, but would at least allow a reasonable period of time for the dispute to play out without forcing the union to take industrial action in a single burst of disruption. If that isn’t accepted then at the very least let’s allow the parties to agree an extension of the original four months to allow talks to take place. I’ll even suggest some drafting:

In Clause 8, line 14: after four months insert ‘or such longer duration not exceeding 12 months as is agreed between the union and the members’ employer’

Surely it makes sense that if the parties want to continue talking, the union should be able, without prejudicing its own position, to suspend its industrial action in the hope that a settlement can be reached?

The Trade Union Bill is a bad Bill but there is no point in just whinging about it. The House of Lords cannot stop it, but they can make it better. I’m happy to help!

PS It’s worth pointing out that the ‘4 month rule’ introduced by the Bill will not apply to ballots that have already opened by the time the Bill becomes law – so action by junior doctors, teachers, firefighters and others will be able to continue on the basis of their original ballot.