Industrial action is unlawful unless the organising trade union complies with certain statutory requirements, including balloting conditions. It is these rules governing ballots which the Government is currently proposing to tighten by introducing a new threshold for voter turnout and support, with an additional higher threshold applying in “important public services” (health, education, fire, transport, nuclear, border security). The changes are expected to be implemented by the summer of 2016.
Part of the Government’s aim is to ensure that strikes, particularly those causing widespread disruption to the public, do not take place where a ‘militant’ minority exert their will over the majority of the workforce. Other changes are also proposed, including tighter controls on picketing, longer advance notice of strikes, a need to re-ballot with ongoing disputes, permitting agency workers to replace striking staff and extending the role of the Certification Officer.
Existing balloting laws: an overview
The current law which governs balloting is detailed, applies equally to all employers (except where a strike ban applies, such as the armed forces) and includes the following:
- At least seven days before the ballot, the union must give the employer a written ballot notice setting out certain information such as the ballot date and employees concerned.
- Not less than three days before the ballot, a sample voting paper must be sent to the employer. The ballot must be conducted secretly by post.
- Where more than 50 employees are entitled to vote, the union must appoint an Independent Scrutineer.
- Only those members who will strike are entitled to vote.
- As soon as reasonably practicable after the ballot, the union must notify both the voters and the employer of the outcome.
- A union has to secure a simple majority among those who voted to proceed. There is no requirement for any level of voting turnout (eg if 100 members are balloted and only five vote – three vote yes and two vote no – there is a valid mandate for strike action).
- Not less than seven days’ written notice must be given to the employer before the strike starts.
- The industrial action must begin within four weeks of the ballot (or up to eight weeks upon agreement with the employer).
The new balloting laws
The proposed change to the law will introduce a requirement that:
- in all ballots, 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 (eg if 100 members are balloted, at least 50 must vote, of which 26 or more must vote yes for a valid mandate)
- only in ballots in important public services, at least 40% vote in favour of the action (eg if 100 members are balloted, at least 50 must vote and at least 40 vote yes).
The definition of “important public services”
The highest thresholds (minimum 50% turnout and 40% support, as well as a simple majority) will apply where a majority of those balloted are workers engaged in the provision of important public services or activities that are ancillary to the provision of important public services. Examples of ancillary roles given by the Government include managers, administrators or cleaners supporting others to deliver important public services.
The changes make no distinction between private and public sector, for example, where the private sector delivers important public services, the highest thresholds will apply.
The Government has consulted on the types of services and occupations which provide important public services and will introduce legislation, expected at the end of 2015, defining those subject to the 40% threshold. In identifying those occupations, it is considering whether a strike in that area could risk death, serious injury, public or national security, or seriously impair economic activity and prevent significant number of people from getting to their place of work.
Impact of the new balloting thresholds
The changes represent a significant shift from the current position where ballots may be carried by a simple majority of those voting and 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.
More unions may organise protests or corporate campaigns, to apply alternative forms of pressure on an employer to achieve their objectives. Alternatively, workers might express their grievances in other ways, such as collectively refusing to volunteer for overtime, which can have a dramatic impact on businesses which depend heavily on overtime.
Other proposed changes to industrial action
Key changes include:
- permitting the use of agency workers to cover striking staff. The Government has consulted on removing the current ban on the use of agency workers in this way and is committed to issuing a response by the end of October 2015. This is a controversial issue, but also reflects a manifesto commitment. In practice, specialist workers cannot easily be replaced with agency staff
- a doubling of the minimum notice of strike action to two weeks
- the voting paper to identify the dispute and the duration of the proposed industrial action and to specify the type of any industrial action short of a strike
- the requirement that some industrial action must take place within four to eight weeks of the ballot will be repealed – instead, a ballot mandate expires after four months (currently action can be taken indefinitely, provided the dispute remains live). The combined effect is to provide a four month window for negotiation and possible strikes
- a requirement for pickets to be supervised by a named official, potentially enforceable by injunction. The Government has also consulted on further measures to tackle intimidation of non-striking workers, including requiring a union to publish an Industrial Action Plan giving advance notice of picketing and other protest activities
- a requirement for public sector employers and (yet to be specified) employers delivering public services to publish information about how much time off they allow to trade union officials, with a reserved right to limit the amount and cost of time off allowed. There are also proposals to remove ‘check off’ in the public sector
- new investigatory powers and sanctions to be made available to the Certification Officer.
"The Government has consulted on the types of services and occupations which provide important public services and will introduce legislation, expected at the end of 2015, defining those subject to the 40% threshold.”