SOME 16 months after the Tories’ Trade Union Act 2016 came into force, it is time to look at how it has been operating and see what its impact has been.

The Act’s main components are that a lawful mandate for strike or industrial action must now have a statutory ballot result that has at least a 50 per cent turnout of eligible union members.

In certain “essential” public services, the vote for action must also comprise at least 40 per cent of all those entitled to vote (with non-voters are counted as No votes).

Additionally, the lawful validity of mandates for action has been reduced from being open-ended to six months (or nine months with the concerned employer’s agreement) and there is an increased notice period of action to be given to employers, rising from seven to 14 days.

The context of the Trade Union Act is that 2017 saw the lowest number of workers involved in strikes since records began 1893 with just 79 strikes taking place.

And, in 2016, the number of ballots organised for strikes and industrial action was about a third less than it was 15 years before.

In this sense, the Act was a “solution” looking for a problem, indicating the impetus behind it was both ideological and to try to kick unions down further when they are not at their strongest.

At an industrial relations conference in London at Middlesex University last week, I presented the first analysis of the Act’s operation.

Gathering the data to do so was more difficult than anticipated because not all unions publish the full results, including turnout figures, of all their ballots. Indeed, the RMT is the only union to really do so.

It was expected that unions would fully publicise their ballots for action because this helps legitimise the actions they take (even if they were expected to be more circumspect about the ballots they lose).

On top of this, the Office of National Statistics (ONS) has stopped collecting data on the number of strike and industrial action ballots so the last figures are for 2016.

The ONS has stopped relying on data from the main approved balloting organisation, Electoral Reform Services, and has experienced difficulties collecting the data itself. 

Nonetheless, the majority of the smaller, medium-sized and larger unions have run one or more ballots since March 1 2017.

Those that have not are some of the unions in the financial services sector, the health sector and some parts of the criminal justice system.

First, the good news. In the overwhelming majority of cases, unions have won the ballots they held, and in many cases, quite convincingly on both votes for and turnouts. There have been only a couple of high-profile losses.

But there is a sting in the tail. The number of ballots run seems to be down on 2016 and some unions are cautious about running national ballots for fear of losing them (even though prior consultative ballots to both test and mobilise members can be used here). 

Second, unions have adapted by increasingly “front-ending” their action.

Here, the tactic is to announce a large and far greater number of strike days in a far more truncated period than before. Even if not all the action needs to be subsequently taken, it serves as a statement of intent of seriousness to the employer.

This means that no longer is the phenomenon of a small number of one-day strikes spread out over many months the hallmark of striking. Instead, there is more and quicker hard-hitting action. This, in turn, means that decent and better outcomes are gained. 

Yet, again there is a potential sting in the tail. More strike days per dispute indicates more intransigent employers and more forfeited pay so that only a cost-benefit analysis can reveal how much the strikes actually achieved.

A number of unions are now paying strike pay more routinely so this helps here.

Third, there are a host of more minor outcomes, namely, where reballots need to be held, they are won; employers are no more able now to gain injunctions to stop action; there has been no marked rise in unofficial action as members say “bollocks to balloting”; picketing practices continue as before; and unions report increased recruitment associated with taking action.

So there has been no great “revolution” as the Tories would have hoped for. Not only are unions are continuing to adapt but, contrary to the Tories’ intentions, those strikes which do take place are getting longer and the extra 40 per cent hurdle has not stopped action.

Indeed, the Act seems to have accelerated and reinforced some existing trends like more strike days per dispute and the front-loading of action as well as the use of leverage campaigns and collective workplace protests.

There is also evidence that the ballot results now give a greater bargaining strength to unions as government and employers can no longer point to poor turnout figures. On that basis, there would, of course, be fewer strikes as employers concede earlier.

But when all is said and done, it is still early days. The next big test of the Act is the PCS union’s national ballot.

The ballot is currently live and the result will be announced towards the end of July.

But work is also needed to be done in terms of the TUC co-ordinating the collection of data on how unions are getting on so that we have a true and full national picture of the situation where examples of “best practice” and the lessons of success can be transferred between its affiliates.

Gregor Gall is an affiliate research associate at the University of Glasgow. For those wishing to know more about the research, contact [email protected].