I refuse to believe that Sharon Graham, General Secretary of the Unite the union is genuinely unhappy about Labour’s plans for employment law. An updated plan was published by the Labour party on Friday and she was reported as saying that it had “more holes than Swiss cheese” and that it was in danger of becoming a “bad bosses charter”.  If she genuinely thinks that then this is a bizarre reaction to the most union-friendly manifesto for employment law that has ever been put forward by a party that is actually expected to win an election.  

Press attention seems to have focussed on the caveats that have been asserted around the proposal to ban “fire and rehire”. It is true that I struggle to make sense of what is actually being proposed in this area. I would also agree that the proposal on zero hours contracts has clearly been watered down (I discussed this recently). But it would be a mistake to concentrate too much on these proposals and ignore the other measures (more than 30 of them) that a Labour government would bring forward. 

In this post I want to focus purely on the area of trade union rights, industrial action and union recognition. What Labour has committed itself to doing in this area would transform the industrial relations landscape in Great Britain. 

The overall thrust of the policy is to reverse what is described as the Tories’ “scorched earth” approach to industrial relations and introduce a new regime based on “good faith negotiation and bargaining” ushering in “a new partnership of cooperation between trade unions, employers and Government”. What will that mean in practice? Well strap in. 

Union access to the workplace

One issue for unions seeking to organise and recruit new members, is gaining access to workplaces where they have yet to be recognised. A Labour government would “act to ensure that union members and workers are able to access a union at work through a regulated and responsible route where there is support within the workplace”. Exactly what that would look like in terms of legislation is not clear – perhaps it is something that the Central Arbitration Committee would be able to order when there was some support for the union but not enough to trigger full recognition. But significantly “Labour will introduce rights for trade unions to access workplaces in a regulated and responsible manner, for recruitment and organising purposes”. Employers will also be placed under a duty to inform staff of their right to join a trade union. This will be something that will have to be included in the written statement of terms and conditions that must be given to all workers.   

Labour then says that it will “enable employees to collectively raise grievances about conduct in their place of work, to Acas”. That’s a bit odd. Acas doesn’t handle grievances from anyone. The document goes on to say “this will be in line with the existing code for individual grievances” which must be a reference to the Code of Practice on Disciplinary and Grievance Procedures. Under that code, of course, the grievance is raised with – and determined by – the employer. Acas isn’t involved. Something has got a bit mixed up here, but I wonder if what lies behind it is a proposal for the right to be accompanied to be extended to collective rather than just individual grievances. Currently, S.10 of the Employment Relations Act 1999 gives individual workers the right to be accompanied by a trade union official at a grievance hearing. When that right was introduced, unions were frustrated that the right was confined to individual rather than collective grievances. If Labour now contemplates requiring employers to hear grievances raised by groups of workers, accompanied by union officials, then that could be really significant. 

These measures on their own would amount to a significant package of new rights for unions and their members – but there is more. 

Industrial action

Labour will repeal the Trade Union Act 2016. This was the act that introduced turnout requirements for industrial action ballots and increased the notice that trade unions had to give of any industrial action from one week to two. It also placed a six-month time limit on the validity of strike ballots, introduced additional requirements on the wording of the ballot paper and placed additional restrictions on picketing. All of these will go. 

The Strikes (Minimum Service Levels) Act 2023 will also be repealed. It’s difficult to argue against this because that Act has proved to be hopelessly unworkable. All the same, If I were a union, I’d be glad to see the back of it. 

Before taking industrial action, unions have to conduct a ballot of their members. That ballot must be fully postal – which means that the ballot paper must be posted to each individual member who then has to complete the ballot paper and return it by post. For younger readers the “post” is a process by which actual pieces of paper are carried between two people by a company called Post Office Ltd – who you may have read about in the news recently [correction – as pointed out in the comments, it is actually the Royal Mail that handles the post, but the point remains]. You have to pay for each piece of post you send, so organising large-scale strike ballots is a costly undertaking.

Labour proposes to scrap the need for a postal ballot and replace it with a system of “modern, secure, electronic balloting and workplace ballots”. This is a very big deal. Postal ballots are time consuming and expensive. Switching to electronic and workplace ballots will make it much easier to organise industrial action. 

The proposal does not come out of the blue. The Trade Union Act 2016 provided for an independent review of the feasibility of electronic ballots and that resulted (in December 2017)) in the Knight Review. Its conclusions were that the world was not yet ready for electronic ballots but that the Government should consider a pilot scheme. The Government, however, never got around to responding. Of course, doubts about the fairness and security of electronic ballots did not stop the Conservative party from using electronic voting to choose Boris Johnson and Liz Truss to be Prime Minister, so it is a little bit hard to argue that it is wrong to use a similar system to allow council workers to decide on an overtime ban.

Union recognition

We still aren’t finished. Labour is also proposing changes to the statutory scheme for union recognition – removing some of the compromises it made when it first introduced the scheme in the Employment Relations Act 1999. Gaining union recognition under the scheme means demonstrating that recognition is supported by a majority of the workers in the relevant bargaining unit. Currently the Central Arbitration Committee may only accept a recognition request as valid if it considers that the majority of workers in the bargaining unit would be likely to favour recognition. This is a decision that must be made before any ballot is organised and Labour proposes to scrap this requirement – making it much easier for a union to obtain a recognition ballot. 

In a recognition ballot the current rule is that recognition will be awarded only if it supported by a majority of those voting in the ballot and at least 40 per cent of those entitled to vote. Labour will abolish this threshold requirement and provide for recognition to be awarded where there is a simple majority of those voting. Overall Labour will make it easier for unions to win recognition from a reluctant employer. 

Transforming employment law

If I were a trade union leader I would be absolutely delighted with these proposals. They are a million miles away from anything that a Conservative government would do and suggestions that there is no real difference between Labour and Conservative are – in the field of employment law at least – very wide of the mark. 

The measures I have outlined in this post would make for a pretty chunky Trade Union Bill. But they are only one aspect of what Labour is proposing. In my next post I plan to look at their plans for individual employment rights. Then I will round off with an assessment of their proposals for discrimination law. I can’t stress enough that the sum total of what Labour is proposing is transformational. Sharon Graham must realise that. Perhaps she is only pretending to be cross in order to help persuade the business lobby that Labour’s proposals have been significantly watered down. If she was jumping up and down with glee, that might not play well in the Daily Mail.