The new rules on industrial action

Introduction

Since the major industrial relations legislation of the Thatcher years, which introduced the balloting requirements and the ban on secondary action, there has been no significant attempt by Parliament to change the legal balance of power between unions and employers in relation to industrial action.

The Trade Union Act 2016, which received Royal Assent on 4 May, seeks to make good the promise in the Conservatives’ 2015 election manifesto to “rebalance the interests of employers, employees, the public and the rights of trade unions”. The Act extends to Great Britain – ie, England, Scotland and Wales, but not Northern Ireland.

At time of writing it is not known when the relevant provisions of the Act will be brought into force.

The new balloting rules: the voting thresholds

The two headline measures are a 50 per cent turnout threshold for all ballots, plus an additional requirement for “important public services” that 40 per cent of the workforce endorse any industrial action proposed. Ballots will continue to be decided by a simple majority, but the additional 40 per cent requirement will mean that in practice a much higher majority will be required when important public services will be affected. So for example, a yes vote of at least 80 per cent would be required on a 50 per cent turnout in ballots involving important public services.

The precise details about which workers will be covered by the 40 per cent threshold will be set out in regulations, but the Act defines the broad categories involved. These comprise health, schools, fire and transport services, nuclear-related work and border security. The Act makes it clear that this additional requirement will only apply where the majority of workers entitled to vote in the ballot are “normally engaged” in the provision of these services, unless the union “reasonably believes this not to be the case”.

In a late amendment to the Bill in the House of Lords, the Government has agreed to commission an independent review to see whether secure electronic voting can be introduced for industrial action ballots. Currently only paper-based voting is permitted.

Other new balloting requirements

As well as the new voting requirements, a number of other new balloting rules have also been introduced.

The ballot papers will need to include more information than is currently required. This will include a summary of what the dispute is about, the precise industrial action envisaged and the period within which each type of industrial action will take place.

Employers will be entitled to 14 days’ notice of industrial action (the current requirement is 7 days).

Industrial action authorised by a ballot will need to be completed within six months (or nine months if the employer and the union agree) otherwise a fresh ballot will be required. There is no set time limit in existing legislation for industrial action to be completed, though it must normally be started within four weeks of the ballot.

Picketing

There are new legal requirements for union supervision of official pickets. These include the appointment of a “picket supervisor” who will be required to be present where the picketing is taking place, or able to attend at short notice. Failure to observe these requirements will mean the union’s immunity will be lost, paving the way for injunctions and other steps to stop the picketing. Currently similar provisions can be found in the 1992 Statutory Code of Practice on Picketing, which does not have the force of law, though it must be taken into account by courts and tribunals when assessing the lawfulness of picketing.

These measures are designed to address the Government’s concerns about intimidatory behaviour by a minority of pickets. However more radical proposals floated in a consultation paper published with the original Bill, which canvassed the possibility of a new criminal offence of intimidation on the picket line, have been dropped.

Agency staff

In another consultation paper published with the original Bill, the Government sought views on the impact of repealing the provision in the Employment Agencies Regulations which prevents the supply of agency staff to cover for striking workers.
Although the Conservatives committed to the repeal of this provision in their 2015 manifesto, the Act contains no measures amending the Regulations. The response to the consultation (which closed in September 2015) has not yet been published.