Important changes to the law on industrial action, introduced by the Trade Union Act 2016 (‘the Act’), came into force on 1 March 2017. The changes include introducing: a 50% ballot threshold for voter turnout, a 40% ballot support threshold in “important public services”, tighter controls on picketing, longer advance notice of strikes, a requirement to reballot with ongoing disputes and changes to the voting paper.

The new regulations also pave the way for the implementation of facility time reporting and restrictions on check-off in the public sector by bringing into force the sections in the Act which give the Government power to make regulations requiring relevant public sector employees with one or more trade union representatives to publish information relating to facility time and specifying relevant public sector employers for the purpose of restricting the deductions of union subscriptions from wages.

Changes to industrial action law

For any ballot opening on or after 1 March 2017 (a ballot is ‘opened’ on the first day a voting paper is sent to those entitled to vote), at least 50% of members entitled to vote must do so. This is in addition to the need for a simple majority of those votes cast to be in favour of action. For example, if 100 members are balloted, at least 50 must vote, of which 26 or more must vote yes for a valid mandate.

There is an additional requirement, where the majority of those entitled to vote are normally engaged in the provision of important public services, that at least 40% vote in favour of the action. For example, if 100 members are balloted, at least 50 must vote and at least 40 vote yes. Regulations have defined important public services in the health, education, fire, transport and border security services and the Government has published accompanying guidance. In the education sector the important public services provisions are limited to 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. See our briefing dated 25 January 17. When announcing the outcome of the ballot to members, the union must provide information on whether the 40% and 50% thresholds, as appropriate, have been met.

The Act doubles the minimum notice of strike action to two weeks (or seven days if both parties agree) and changes the voting paper to include a summary of the dispute, the period(s) within which action(s) is expected to take place and the type of industrial action short of a strike, where relevant. Transitional provisions apply so as not to capture ballots already opened or notice already received before 1 March.

The requirement that some industrial action must take place within four to eight weeks of the ballot is repealed for ballots opening on or after 1 March 2017. Instead, the Act provides that a ballot mandate expires after six months, or up to nine months if both sides agree.

From 1 March, lawful picketing that is organised or supported by a union requires the following: the union must appoint a picket supervisor (a member or an official) who is identifiable when present at the picketing location and it must provide the picket supervisor with a letter stating that the picketing is approved by the union. The supervisor must be familiar with the Picketing Code of Practice and the union or supervisor must take reasonable steps to give the police his/her name, contact details and the picketing location. During the picketing, the supervisor must be present or readily contactable and able to attend at short notice. If requested by the employer, the supervisor must produce the union approval letter.

Where a union ballots for, or organises, industrial action during the year, it is required to include information about the action on its annual return to the Certification Officer, commencing with 2018 annual returns.

To reflect the changes made by the Act revised Codes of Practice on industrial action ballots and notice to employers and on picketing have been issued by the Government.

The ballot changes represent a significant shift from the previous position where ballots could be carried by a simple majority of those voting. They may limit strikes to disputes over which the workforce has a genuine, deep grievance. However, the changes may result in more union members voting and, therefore, if there is a ‘yes’ vote for industrial action, a stronger union mandate.

Unions may ballot less, wary of not meeting the thresholds, and will be more tactical about defining the constituency for the ballot. For example, more localised ballots or balloting only members working in key grades. Mixed workforces, where some are identified as delivering important public services, will be difficult for a union.

Unions may be ever more keen to organise protests or publicity campaigns (including lobbying the governing body), to apply alternative forms of pressure on an institution to achieve their objectives. Alternatively, workers might express their grievances in other ways, such as collectively refusing to undertake additional duties or to volunteer for overtime. Some unions have also stated that they will fight the balloting and other changes under the Act in the courts on human rights grounds. In addition, the Welsh Government has introduced draft legislation which, amongst other proposals, seeks to dis-apply the 40% threshold and the provisions on facility time and check-off in relation to devolved Welsh public authorities (which includes education). As such, the UK and Welsh Governments are on a collision course in relation to legislative competence in this area and this may have to be resolved in the courts.