Changing strike ballots: new regulations published

The Trade Union Act 2016 (‘Act’) changes the rules governing industrial action ballots by introducing a new 50% threshold for voter turnout, with an additional 40% support threshold applying only in important public services. Important public services include those in the health, education, fire, transport, nuclear decommissioning and border security sectors. The Government’s aim is to ensure that ‘strike action only ever takes place on the basis of clear and representative mandates’.

The Government has published final regulations which specify in more detail which public services are subject to the 40% ballot support threshold. The regulations, which must be approved by Parliament, come into force on 1 March 2017, or, if Parliament has not approved them by that time, 21 days after approval.

Recap: the new industrial action ballot thresholds

The Act provides that, in all industrial action ballots, at least 50% of those entitled to vote must do so and a simple majority of those votes must be in favour of action (e.g. if 100 members are balloted, at least 50 must vote, of which 26 or more must vote yes for a valid mandate).

In ballots where a majority of those entitled to vote are ‘normally engaged’ in the provision of important public services, at least 40% must vote in favour of the action. This is in addition to the above 50% turnout threshold and simple majority requirement (e.g. if 100 members are balloted, at least 50 must vote and at least 40 vote yes). Private sector union members are included in the 40% threshold if they are delivering such services. When assessing whether the threshold applies, a ‘reasonable belief’ defence is available to trade unions, reducing the risk of litigation over whether or not a ballot is compliant (i.e. a trade union may argue that it reasonably believed that a majority of those balloted were not engaged in providing important public services and that the 40% threshold did not apply).

What ‘important public services’ (‘IPS’) are affected?

During 2015 the Government consulted on the type of occupations and functions which should be subject to the 40% threshold and has now issued regulations setting out further details. It will also publish guidance to support the application of the regulations.

The regulations confirm that IPS include the following:

  • some hospital health services: A&E, high-dependency units and intensive care, psychiatric services and obstetric and midwifery services for conditions which require immediate attention in order to prevent serious injury, serious illness or loss of life, emergency ambulance services (which are further defined). Where these services are provided in a private hospital or by a private ambulance service, they are not an IPS
  • teaching and other services provided by teachers and head-teachers for children of compulsory school age at a school, a 16-19 Academy or a further education institution. Fee-paying schools and further education institutions, where the majority of compulsory school age pupils are funded by individuals, are excluded
  • fire-fighting services, specifically, extinguishing fires, protecting life and property in the event of fires and services provided by fire and rescue authority personnel in dealing with, and organising a response to, requests for such services
  • some transport services including London local bus services, national passenger rail and tramway services including maintenance and some network and station services, civil air traffic control, airport and port security services (which are further defined). Services starting and ending outside GB are excluded
  • certain border control services in respect of the entry and exit of people and goods to and from the UK, sea patrols and the collection and dissemination of related intelligence by a Border Force officer.

The regulations do not specify services in the decommissioning of nuclear installations and management of radioactive waste and spent fuel sector (following a decision to delay, pending investigation of the issues involved) meaning that there are no immediate plans to require them to apply the 40% threshold.

Comment

Knowing when the 40% ballot support threshold applies – i.e. whether a majority of those entitled to vote are ‘normally engaged’ in the provision of important public services – is likely to become a matter of dispute between some employers and trade unions. Practical difficulties will arise, for example, where there are mixed workforces (where some carry out IPS, some do not) and multiple duties (where some spend only part of their time on IPS duties). Unfortunately, while the regulations provide some clarity, many grey areas remain.