Restricting Trade Union Deductions in the Public Sector

The Trade Union Act 2016 made changes to the Trade Union and Labour Relations (Consolidation) Act 1992 which mostly applies in Great Britain.  The 2016 Act imposes restrictions on what trade unions can and cannot do and how they must act, subject to legislative ‘transitional periods’.  

This means that different parts of the Act came into force at different times but 2024 seems to have the greatest impact on payroll departments.  Rather than just look at the latest Regulations, I thought I would go through them all, though fast forward to No. 6 for the one coming into force in 2024.

We must go all the way back to 2016:

Courtesy of the Trade Union Act 2016 (Commencement No. 1) Regulations 2016, the following came into force: 

• A pilot and independent review of the implementation of electronic balloting

This was carried out by Sir Ken Knight at the end of 2017 but nothing seems to have happened since.  Now, therefore, the requirement is for only paper postal ballots only.

Courtesy of the Trade Union Act 2016 (Commencement No. 2) Regulations 2016, the following came into force: 

• To enable the definition (and legislation) of ‘important public services’ (where there will be a 40% requirement for support before industrial action), and
• To enable the definition (and legislation) for trade union members to opt in to a political party (rather than the requirement to opt out)

‘Important public services’ led to a range of legislation and guidance, though the Trade Union (Wales) Act 2017 states that any Regulations made ‘may not specify services provided by a devolved Welsh authority’.

Courtesy of the Trade Union Act 2016 (Commencement No. 3 and Transitional) Regulations 2017, the following came into force: 

• The requirement for a 50% turnout in strike ballots
• The requirement for a  40% turnout to support industrial action in those ‘important public services’
• Making changes to ballot paper information (effectively requiring the ballot paper to specify the type of industrial action that is to take place)
• The requirement for more information to be given to members about the results of the ballot (including whether it meets the 50% and 40% thresholds)
• The requirement for more information to be sent to the Certification Officer about industrial action
• Extending from 7 to 14 days the notification a union must give the employer of the intention to hold industrial action
• Setting a deadline at the end of which the mandate for taking industrial action ceases (6 months or 9 if agreement with the employer)
• Ensuring there is union member supervision of picketing
• The remainder of the part about opting in to a political party donation (rather than the requirement to opt out) as per The Trade Union Act 2016 (Political Funds) (Transition Period) Regulations 2017 which allowed a 12-month transition period for compliance
• The requirement for the union's annual return to include details of political expenditure
• The requirement to publish facility time, as per the Trade Union (Facility Time Publication Requirements) Regulations 2017
• Restricting the deduction of union subscriptions from wages in public sector – this only allowed the making of further Regulations, as detailed below
• The transitional requirement that the Certification Officer is not subject to UK Government ministerial direction, and
• ‘Minor and consequential amendments’ to other pieces of legislation because of bring the above into effect

Courtesy of The Trade Union Act 2016 (Commencement No. 4 and Transitional) Regulations 2021: 

• Powers  were given to the Certification Office to impose enforcement / compliance and penalties

Courtesy of The Trade Union Act 2016 (Commencement No. 4 and Transitional) Regulations 2021: 

• After the transitional period, the requirement that the Certification Officer is not subject to directions of any kind from any Minister of the Crown
• Other enforcement / compliance and penalties powers (that were not already in force)
• Additional powers of the Certification Officer where an enforcement order is made
• Rights of appeal, and
• ‘Minor and consequential amendments’ to other pieces of legislation because of bring the above into effect

Courtesy of The Trade Union Act 2016 (Commencement No. 5) Regulations 2022, the following came into force: 

• The ‘reserve powers’ (as per the 14, 3 in the 2016 Act), all to do with the publication of facility time (which is all to do with the time an employee takes off from their normal role to carry out their duties and activities as a trade union representative)

The Trade Union Act 2016 (Commencement No. 6) Regulations 2023 bring into force the last of the provisions in the 2016 Act, namely section 116B that was inserted into the Trade Union and Labour Relations (Consolidation) Act 1992. 

This is all to do with restrictions on the deduction of union subscriptions from wages by public sector employers – at least, the public sector employers that are impacted by the Act.  

From 09 May 2024, a public sector employer that is impacted by the Act may only make trade union subscription deductions from an employee’s wages if: 

1. The employee has been given the option to pay their subscription by other means – Direct Debit to the union etc
2. The trade union has agreed to make ‘reasonable payments’ to the employer in respect of the administration of making the deductions, probably by the payroll department

‘Reasonable’ means that the public sector employer is satisfied that the amount paid by the union is ‘substantially equivalent’ to the cost of making the deduction. 

The Trade Union and Labour Relations (Consolidation) Act 1992, updated by the 2016 Act, refers to wages being as per the Employment Rights Act 1996. Therefore, if this is a requirement and the relevant employer has not made sure of their obligations under the Act, a union subscription is illegal (or an unlawful deduction from wages). 

The No. 6 Commencement Regulations are quite important for employers.