In our briefing of 13 December 2016 we commented on the regulations issued by the Government in relation to important public services, and in particular the Important Public Services (Education) Regulations 2017 which are due to come into force on 1 March 2017, or, if Parliament has not approved them by that time, 21 days after approval.
Recap: the provisions relating to "Important Public Services" ("IPS")
Once the relevant provisions in the Trade Union Act 2016 come into force, then in all industrial action ballots, at least 50% of those entitled to vote must do so and a majority of those voting must be in favour of industrial action. In addition, where the majority of those entitled to vote are "normally engaged" in the provision of IPS, at least 40% of those entitled to vote must vote in favour of the action. There are a number of IPS, including some parts of the education sector. The Important Public Services (Education) Regulations 2017 limit the application of the IPS provisions in the education sector 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.
The government has now issued guidance on the IPS Regulations. The guidance is expressed to be non statutory and giving general guidance only. The guidance is stated to be intended for unions and employers whose members or employees deliver a specified IPS and to provide advice for unions on applying the 40% threshold in practice. It also suggests examples (rather than an exhaustive list) of workers who will be covered in each sector in the regulations. The Government says that it will review the guidance periodically to ensure it is still helpful in identifying which workers deliver IPS.
The guidance addresses the fact that a ballot may involve a mixture of workers who are carrying out IPS and those who are not and states that where this is the case the 40% threshold will apply if a majority (ie over half) of union members who are eligible to vote in the ballot are delivering IPS, unless the union reasonably believes this is not to be the case.
The guidance also recognises that workers may have multiple duties and spend only part of their time delivering IPS and the remainder of their time on other responsibilities. The guidance states that such workers are only considered to be delivering IPS if they are "normally engaged" in delivering this service and that it is for the union to consider what is normal in the specific circumstances of their sector or workplace when they determine who they will ballot for industrial action.
The guidance goes on to state that when considering whether workers with multiple duties are normally engaged in delivering IPS, the union may find the following matters to be relevant:
- how regularly the workers deliver IPS;
- the proportion of time that the worker spends on delivering IPS;
- whether the worker is contracted to deliver IPS;
- whether the substantive role of the worker is to deliver IPS at the time of the ballot or likely industrial action; and
- whether the worker has been temporarily allocated to different duties, and the time period this is expected to last.
This is not an exhaustive list and it specifically stated that the union does not have to take all of these matters into account.
The guidance says that it is for the union to consider the practical application of the legislative requirements and whether it holds a reasonable belief as to whether the 40% threshold applies. It suggests unions may wish to seek further advice, including engaging with employers early in the interests of good industrial relations, to resolve any issues and prevent delays following the outcome of a ballot.
Finally the guidance gives examples of workers who deliver IPS under the 40% threshold. The examples given for the education sector are teachers and those fulfilling the role of a head teacher, including academy principals.
The guidance is fairly brief and does not elaborate a great deal on the regulations themselves. It is interesting that the guidance is aimed primarily at trade unions as it is initially for them to decide who they are balloting and whether as a result of the ballot they have a mandate to call industrial action.
Should the union call on its members to take industrial action where at least 50% of those balloted have voted in the ballot and the majority supported industrial action but less than 40% of those entitled to vote have voted in favour, then the question of whether the majority of those being balloted are "normally engaged" in the provision of IPS becomes crucial. If the institution believes that the IPS provisions apply then it may wish to challenge the validity of the ballot.
The area open to greatest uncertainty is likely to be where there are workers with multiple duties who do not spend all their time delivering IPS and the guidance does provide some assistance in relation to the factors the union ought to be taking into account. Given, however, that the guidance specifically states that it is not an exhaustive list, that the union does not have to take all of the matters into account and that the focus is on the union's reasonable belief, there may be difficult questions which a court will need to decide, should an institution seek an injunction to prevent the industrial action. Institutions would be well advised to obtain advice on the likelihood of success before taking such a step.