Working with trade unions to avoid strikes still the best course of action

After what was a long process of making its way through Parliament, the Strikes (Minimum Service Levels) Bill has received Royal Assent. The Bill aims to create a balance between the ability of workers to strike, with the expectations of the public that essential services that they pay for via tax will be available when they need them. 

There are plans for minimum service levels to be implemented for passenger rail services, ambulance services and fire and rescue services – before which public consultations will take place to figure out the most appropriate approach to this. 

There will also be a public consultation relating to trade unions and the reasonable steps they must take to comply with a work notice issued by employers under minimum service levels legislation.

Although these changes will help ensure that vital services are kept up and running during periods of strike action, it is still in an employer’s best interests to avoid strike action altogether where possible. 

Added to which, the High Court recently held that the change in law introduced last year to allow agency workers to carry out the work left by striking workers was unlawful. 

This means that the amending legislation which repealed the prohibition on agency workers being supplied to businesses in a strike situation cannot be relied upon and employment businesses and agencies should not supply workers to cover for striking employees.

Engaging with trade unions

With that backdrop, how does an employer effectively engage with its recognised trade union(s)?

Where a trade union is recognised, they can play a vital role in helping avoid strike action being necessary in the first place. They represent employees’ interests and can bring balance to the relationship between employers and employees. It is often also preferrable for an employer to discuss and agree issues with a few representatives as opposed to the entire workforce, especially in large organisations across numerous locations. In addition, when an employer is legally required to collectively consult with employee representatives (such as in a collective redundancy consultation) the union representatives are already in place so consultations can start without having to first elect representatives.

An employer wanting to work with a union should ideally set out a formal agreement which covers the relationship with the union(s) it officially recognises. 

Earlier this year CIPD published advice for employers on how to work effectively with trade unions. It suggests: 

• treating unions as key stakeholders in the business;
• seeking to understand the position and interests of the union(s);
• developing relationships with trade union representatives; 
• collaborating with managers to deal with issues involving unions and supporting managers to develop working relationships with local representatives; and 
• training managers in negotiation skills. 

CIPD recommends that in consultations with trade unions employers should be: 

• clear on what they want the end result to be; 
• flexible and alive to areas of mutual gain; 
• willing to compromise to agree a way forward; 
• prepared to listen and try to understand the concerns of the other side.

If negotiations with a trade union fail, it is important for employers to have a fall-back option – or ideally a range of options. Before commencing any consultations or negotiations, the employer should contemplate the consequences of withdrawing the proposal or imposing it. Keep in mind, however, the union’s fall-back position may well be to ballot for industrial action if agreement cannot be reached.

Consideration should also be given to introducing an impartial third-party mediator or conciliator such as ACAS. 

It may, in some situations, be appropriate to adjourn discussions and to review the position. Developing a revised proposal, taking into account some of the union’s views and objections, may ultimately help reach agreement.