Strikes set to be a rarity in new industrial landscape

After a long and bumpy ride over eight months, the Trade Union Act received royal assent on 4 May, finally becoming law. This was, said Unite General Secretary Len McCluskey, a 'dark day' for working people '“ but what will it mean for Scotland?

The Trade Union Act means strikes are expected to become more of a rarity than they have been to date.

It is important to point out that the Trade Union Act is a piece of UK legislation. Len McCluskey was quoted as saying: “It is the workers of England who will bear the brunt of the Conservative Government’s measures, for the devolved administrations in Scotland, Wales and Northern Ireland have all stated that this law has no place in their countries.”

However, the Trade Union Act is now enshrined in UK law, and is not a devolved matter. Like it or loathe it, the Act very much has a place for the moment.

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We do know that this new law is likely to transform the industrial relations landscape. It will be far tougher for a trade union to get the support needed for a strike than before. The Act is not a popular one, with one newspaper calling it “a nasty undemocratic piece of partisan law-making”.

The Act will raise the bar in terms of the level of support that will be needed for industrial action to go ahead. A majority of those eligible to vote will have to vote in a ballot in order for industrial action to be lawful, and then a majority of those voting must also say ‘yes’ to the action proposed.

The new requirement that there must be a ballot turnout of at least 50 per cent might sound reasonable, but if you consider how hard it is to get people engaged enough to vote on anything – even general elections – then it starts to look like a significant hurdle. Industrial action will be subject to a further hoop to jump through for those in important public services. At least 40 per cent of those entitled to vote must vote yes (which must also be more than half of those voting).

The UK Government has stated that its rationale for these changes is to minimise the disruption that can be caused by industrial action. It says that strikes will only take place as part of a ‘clear and democratic’ mandate from union members. But the unions’ objections are that the bar has been set deliberately too high, compromising the right to strike.

Although the Scottish Government may have strongly objected to measures in the Act throughout its passage through Parliament, it has not succeeded in limiting its scope in Scotland, where the Act applies equally.

The SNP also argued the Act would impact on certain devolved matters and that it was not competent for the UK Parliament to pass this legislation in relation to Scotland without a legislative consent motion from the Scottish Parliament. But both Holyrood’s presiding officer and the UK Government gave short shrift to such an argument. The guidance concluded: The provisions of the Bill extend to Great Britain. In the view of the UK Government, the matters to which the provisions of the Bill relate are not within the legislative competence of the Scottish Parliament.

So for now, the trade unions in Scotland will have to deal with the new industrial relations landscape, meaning that in all likelihood, strikes will become more of a rarity than they have been to date.

Elaine McIlroy is a Partner in the employment team at Weightmans (Scotland) LLP.