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negotiation and allow disputes to develop intostrikes.The partnership approach demonstrated duringthe recession across the private sector shouldnot, however, make us complacent. The publicsector was until 2009 largely immune from payfreezes and other testing changes in response totougher conditions. The previous governmenttended to back away from difficult employeerelations issues, such as reform of public sectorpension schemes.The new government has started to change that,for example by implementing a two-year payfreeze across the public sector as part ofrecognising the extent of the budgetarychallenge. But many unions seem reluctant toface up to this reality. At the 2010 TUC Congress,union leaders called for nationwide actionagainst spending and headcount cuts, with someeven urging a campaign of civil disobedience inprotest at the government’s essential work oftackling the deficit. This is particularly concerningfor the most vulnerable members of society, whodepend on reliable public services. It alsothreatens the hard-won reputation of the UK as agreat place to invest and create jobs.‘The growing risk of industrialaction makes it all the moretimely to update the legalframework.’Nonetheless, the growing risk of industrial actionmakes it all the more timely to update the legalframework. Moreover, recently there have beena number of high profile strikes which havecaused significant disruption to the generalpublic and businesses. Some of these disputeshave raised questions about both the conduct ofcollective bargaining in the workplace of 2010and the appropriateness of aspects of labour lawrelating to trade unions.The regulatory framework around industrialaction was largely shaped in the 1980s. Just aslife in the workplace doesn’t stand still, theframework of industrial relations law too needsto be modernised.The CBI has developed a package of proposedreforms. Building on the proposals we releasedin June, the ideas below are not exhaustive: theyare intended to be a constructive, reasonablepackage which would bring the law up to dateand ensure a fairer balance. They have beendeveloped in consultation with CBI members inthe light of their experience of industrial actionand key legal judgements since the last revisionof industrial relations law under the previousgovernment.Industrial action is not inevitable: if public sectoremployers, employees and unions adopt thepositive approach we have seen in most of theprivate sector in response to economicpressures, necessary change can be achievedconstructively through discussion andnegotiation. This means managers must addressissues in the workplace head on and make thecase for change, rather than shy away from

The law should be changed so employers canhire agency workers to cover for striking staff.One method employers sometimes use tominimise disruption to customers and the publicis to recruit suitably skilled temporaryreplacement staff so they can continue toprovide essential products or services during astrike period.Currently, it is lawful to do so as long as thetemps concerned are hired directly by thebusiness, but a company cannot recruit tempsvia an agency. The law is unclear about whetherit is even legal to hire workers from anothercompany in the same group. There is alsoconfusion about whether an agency could supplytemps to a business affected by industrial actionthat would normally employ a large number ofthem, perhaps to meet seasonal demand.Employees have the right to withdraw theirlabour, and as long as the correct procedures arefollowed it is perfectly legal to do so. Employershave a responsibility to their supply chains,customers and employees to keep theirbusinesses up and running during a period ofstrike action.For this reason there is no logic behind thisrestriction. If firms can hire temps directly toprovide cover, there is no reason why theyshould not do so via an agency. This is not amatter of threatening the jobs of strikers, butrather of providing essential cover during theperiod of action.Strikes are always regrettable, and it is far betterto solve disputes by negotiation in theworkplace, not in court or on the picket line.Some strikes are enormously disruptive topeople’s lives. Whether it is taking the childrento school, getting to work, going on holiday orcarrying out their jobs, those affected byindustrial action need sufficient time to makeplans.Businesses can suffer too – and not just theorganisation where the strike is happening.Companies rely on countless other businesses athome and abroad in their increasingly complexsupply chains to deliver their services or productsto customers. They too need time to plan fordisruption.Moreover, once a ballot result has beenannounced and a strike called, unions andemployers should still have time to negotiate aresolution and avert the strike.For these reasons we propose that the noticeperiod for industrial action should increase fromseven to 14 days after the ballot takes place.Unions have been known to ballot on one issue –such as proposed redundancies or a pay claim –

and call members out on strike but then, duringthe period of the strike, change the reason for itand call a further strike. Some recent disputeshave seen the rationale for action changeconsiderably while the ballot result is still ‘indate’. At present, the law is unclear as towhether matters arising during the course of thedispute are covered by the original ballot or not.The law should be clarified so strikes can onlygo ahead if they are based on the ballot relatingto the original dispute, with consequentialissues subject to a fresh ballot.now offer a variety of other services and benefitsfor members. Indeed, two-fifths of recognitionballots have resulted in the union not beingrecognised v , and unions sometimes lose ballotsdespite membership of above 50%.People at work should always be empowered todecide for themselves if they want to berepresented by a union or take the opportunityto use other routes to communicate with theiremployer. The law should be amended soballots are always held to enable employees todemonstrate whether or not they supportrecognition of a trade union to represent them.Where unions are present in workplaces, itshould be because of the positive support ofemployees. At the moment, employers caneither recognise a union voluntarily or – if avoluntary agreement cannot be reached – aunion can apply to the Central ArbitrationCommittee (CAC) for statutory recognition. If theCAC believes that union membership in theproposed bargaining unit is greater than 50%,automatic recognition can be awarded – withoutany formal vote by the employees concerned.This cannot be right. The right of individuals tojoin a union is one of the hallmarks of a freesociety. But people opt to join unions for lots ofdifferent reasons. For some, union membershipis no longer primarily about wanting to becovered by collective bargaining – many unionsIn a similar spirit, where collective industrialaction takes place, it should be the result of aclear, positive decision by the workforceconcerned. Too often we see strike ballots thatback action on small turnouts among theaffected employees. Recent strikes in the publicsector and some of the strikes on the LondonUnderground have not had widespread supportamong the workforce and yet caused majordisruption for service users. Industrial actionshould never be the result of apathy amongmainstream union members.For this reason we believe the test for alegitimate strike should mirror the statutoryunion recognition rules, requiring 40% ofballoted members to support it as well as amajority of those voting.This means that in a case where 1000 people areballoted, at least 400 should vote in favour of theaction for it to go ahead. If turnout is, say, 600,the strike could go ahead provided 400 vote insupport.

If 1000 people are balloted and turnout is only300, the strike could not ahead even if all voterssupport strike action. This is because theproportion of the balloted workforce would fallbelow the 40% threshold.This would help ensure the views of ordinaryunion members prevail, and that majordisruption cannot be triggered by a relativelysmall but active group.(TULRCA), including maintaining accuratemembership records. The law should providegreater clarity about the definition of a ‘unionmember’ in order to ensure only paid-upmembers are eligible to take part in a strikeballot.A number of recent strike threats have beenaverted because unions neglected to follow rulesabout balloting that are clearly set out in law. Forexample, in one high-profile dispute, unionsfailed to maintain accurate membership recordsand balloted former members and long-closedsites. vi This led to the strike being ruled out oforder by the courts. These cases causeunnecessary disruption and incur significantcosts for employers, unions and, ultimately, theirmembers.The government could provide a solution to thisproblem by defining union membership in law.At present, membership is defined only inindividual union rulebooks, where definitions arefrequently very loose, sometimes includingpeople who stopped paying their subscriptionslong ago. In the interests of fairness andsimplicity, a legal definition could set out thatmembers who have not paid their subscriptionfor, say, three months should be ineligible totake part in a ballot. The union should also be ina position to prove that everyone who takes partin a ballot is a member.Unions should make greater efforts to complywith the requirements of the Trade Unions andLabour Relations (Consolidation) Act 1992Trade unions should be required to keep recordsup to date in the interest of transparency,responsibility and to minimise costly litigation.Currently, the law requires unions to maintain aregister of the names and addresses of theirmembers and “so far as is reasonablypracticable” keep them accurate. But simplymeasuring the presence or absence of data doesnot provide any evidence that it is accurate.There is no sanction for failure to keep accuraterecords unless a union member applies to theCertification Officer – the unions’ regulator – orthe court.Given the cost of litigation for unions, theirmembers, employers and the judicial system,there is no reason why unions should have lessresponsibility for the accuracy of their data thanalmost any other organisation. Computerisationand electronic communication systems haverevolutionised the quality of data maintenance.Most other regulated bodies, employers and, forexample, pension schemes, can be subject tocivil or even criminal sanctions for poor recordkeepingand data handling.To simplify compliance and minimise litigation,unions should be required to conduct an annualaudit of their membership and make allreasonable endeavours to keep records up todate throughout the year.

unable to seek legal recourse to stop unlawfulaction.Unofficial shop stewards are using newtechnology and social networks to gather peopletogether rather than using conventional, officialchannels. For example, a dispute at an oilrefinery last year was characterised by thesetting-up of networking groups, with a websiteand text message and email groups, enablingparticipants to communicate rapidly across thecountry and spread the action to otherstrategically important sites.Wildcat action leaves unions exposed todamages claims from employers, their supplychains and customers, who have not had anyopportunity to make meaningful plans to copewith the dispute. But unions can protectthemselves from such action if they deny anyconnection with – or ‘repudiate’ – the activity.The law is currently unclear on what this meansand the process by which they go aboutrepudiation and it is not adequately enforced.This led to problems last year in the oil, gas andengineering construction sectors, in particular.Currently, the law says that wildcat action willnot be deemed to have been officially endorsedby the union if it has been repudiated by theexecutive committee or the general secretary “assoon as reasonably practicable” after coming tothe attention of any of them. Written noticeshould be given “without delay” to officials andevery member which it has reason to believemay be taking part in the action. But even this isunclear and needs definition.Communications technology has moved on sincethese rules were formulated in the 1980s and1990s. A message of repudiation can now begiven virtually instantly. There is no reason whyunions should need more than 24 hours torepudiate unofficial action after it comes to theattention of senior union officers.The Certification Officer, the unions’ regulator,should be given greater powers to enforce thelaw and ensure that unions are brought tojustice if found to be involved with wildcataction following an employer complaint.Where the Certification Officer finds a union isinvolved with wildcat action, it needs effectivesanctions which will act as a deterrent.Under current law, damages may be soughtagainst unions which fail to comply with variousobligations, such as around wildcat action. Thereis a cap based on the number of members theunion has. The cap varies from £10,000 for thesmallest unions to £250,000 for the largest –even those with more than one millionmembers.The union cap was introduced in 1982 and hasnot been uprated since. Meanwhile, cappedlimits faced by employers have increasedsignificantly. For instance, the cap oncompensation for unfair dismissal was £7,000 in1982 but is now £65,300 – an 832% increase. Ifthe limit on damages payable by trade unionswere increased by a similar proportion, theupper limit would be at least £2m.In some cases strikes have cost businesses morethan £1m a day. Even for the smallest firms, theimpact on the bottom line can be dramatic.When coupled with the trend towards moreaggressive and disruptive rolling strikes, webelieve that a more persuasive deterrent fornon-compliance with the law than the currentlump sum regime would be a per diem penaltyapplied by the courts, uprated automaticallyover time.

1. Employers should be able to use agency temps to cover for striking workers.2. The public and businesses need more time to prepare for strikes. The notice period for industrialaction should increase from seven to 14 days after the ballot takes place.3. Ballot mandates should be limited to the original dispute, not extended to other matters. The lawshould state that strikes can only go ahead based on the ballot relating to the original dispute andconsequential matters should be subject to a fresh ballot.4. People should have the right to decide whether they want to be represented by a union. Ballotsshould always be held on union recognition – it should never be automatic.5. Strikes should be the result of a clear, positive decision by the workforce concerned. The test for alegitimate strike should be that 40% of balloted members support it as well as a simple majority ofthose voting.6. Only paid-up union members should be able to vote – there should be a single legal definition of aunion member.7. Unions should keep records up to date. They should conduct an annual audit of their membership andmake all reasonable endeavours to keep records accurate throughout the year.8. Union members should hear both sides of the argument before voting in a strike ballot. Employers andunions should each be allowed to send concise statements with the ballot papers, setting out thescope, nature and reason for the dispute.9. Union members need to understand the implications of striking for them personally. Ballot papersshould include a notice warning that pay and non-contractual benefits can be withdrawn if anemployee goes on strike.10. Steps to curb wildcat strikes should be strengthened. Unions should be required to repudiate unofficialaction within a maximum of 24 hours after it comes to the attention of senior union officers.11. Unions should face realistic sanctions for failing to observe the law. The cap on compensation shouldbe increased for the first time since 1982 and damages should be awarded per day of strike action.