The Trade Union Act 2016 was passed last year with the majority of its provisions coming into force on 1 March 2017. Key changes include the 50% turnout requirement for all ballots; the 40% support requirement for industrial action in ‘important public services’; the obligation to give 14 days’ notice of industrial action (increased from 7 days); and the fact that ballot mandates now expire after 6 months rather than 4 weeks.
The following provisions apply in respect of ballots that open on or after 1 March 2017 (a ballot opens on the first day on which a voting paper is sent to any person entitled to vote):
- Turnout requirement: In all industrial action ballots, at least 50% of those entitled to vote must do so and a simple majority must be in favour of action. So, if 100 members are balloted, at least 50 must vote. If 50 vote, at least 26 must vote yes for there to be a valid mandate. If all 100 vote, 51 would need to vote in favour. Pre-March 2017 ballots just needed a simple majority with no minimum turnout requirement.
- Support requirement for important public services: If the majority of those entitled to vote are ‘normally engaged’ in the provision of ‘important public services’ (health, education, transport, border security and fire sectors – as defined in separate regulations; decommissioning of nuclear installations is also included in the Act but there are no regulations yet on those services) at least 40% of those entitled to vote must vote in favour of action (in addition to the 50% turnout threshold and the requirement for a simple majority). So, if 100 members are balloted, a minimum of 50 must vote and at least 40 must vote yes for there to be a valid mandate. A simple majority is still required in all ballots, so if all 100 members had voted, then 51 votes in favour would be required to enable action.
- Ballot papers: Unions have to include more detail in ballot papers, including a clearer description of the trade dispute and the timing of the planned industrial action; and details of what kind of industrial action is proposed where it is action short of a strike.
- Results of the ballot: When announcing the result of the ballot to members and the employer, the union must provide the following additional information: the number of individuals who were entitled to vote; whether the number of votes cast reached the 50% turnout requirement; and if the 40% support requirement applied and, if so, whether it was met.
- Notice of industrial action: Unions have to give 14 days’ notice of any industrial action (unless the employer agrees that 7 days’ notice is enough). The old requirement was to give 7 days’ notice.
- Start of industrial action: Ballot mandates will expire after 6 months (or up to 9 months if the employer agrees). After this time, the union will need to seek a new ballot for any proposed industrial action. It used to be that industrial action had to begin within 4 weeks of the date the ballot closed (or 8 weeks if the union and employer agreed).
- Picketing: Many of the provisions of the Code of Practice on picketing have now been given statutory force. In particular, a picket supervisor must be appointed to attend each picket line. This is someone whose details are given to the police; who has a letter of authorisation; and who wears something that makes them readily identifiable on the picket line.
- Certification Officer: The Certification Officer has new powers of investigation and enforcement. It can now investigate a union’s compliance with its statutory duties on a complaint from a third party (including employers or the media) or on its own initiative; and can impose a fine of between £200 and £20,000. The Act also introduces a power to, by regulations, require trade unions to pay a levy to fund the Certification Officer role.
What is changing on other dates?
- Facility time: Regulations are coming into force on 1 April 2017 which require relevant employers in the public sector (with at least 50 employees) to publish information on ‘facility time’ (i.e. the time take off from a job to enable a representative to carry out their trade union duties and activities). The required information includes the number of union officials; the percentage of working time and of pay bill spent on facility time; and the number of hours spent by officials on paid trade union activities. The Act also allows regulations to be made to limit the amount of time taken off as facility time.
- Political funds: Members joining a trade union from 1 March 2018 will need to opt in to make contributions to a union’s political fund (and will be able to opt-out at any time). Also, where a union spends more than £2,000 per annum from its political funds it needs to provide details of that expenditure in its annual return to the Certification Officer.
- Check off: For employers in the public sector (and some private sector employers that provide public services), ‘check-off’ (i.e. the deduction of trade union membership subscriptions via payroll) will only be permitted if the worker can pay its subscriptions by other means (such as direct debit) and the union contributes to the cost of administering the system. Draft Regulations have been published with an implementation date of 10 March 2018.
Codes of Practice
Revised Codes of Practice on industrial action ballots and notice and on picketing are now in force:
Opposition from the Welsh government
In January and February 2017 the Welsh National Assembly consulted on a bill to reverse some of the Trade Union Act 2016 in devolved areas, for example the requirement for 40% support for industrial action in ‘important public services’. The bill has not been passed yet. Therefore, at the moment the Trade Union Act 2016 applies in Wales. However, the Regulations on facility time coming into force in April expressly state that they do not apply to devolved Welsh authorities.
Hiring agency workers
Currently, employers facing industrial action are able to directly hire staff to carry out work normally performed by workers taking industrial action or sub-contract a service to another employer. However, employment businesses cannot provide temporary agency staff to cover striking workers’ duties (or the duties of workers covering the striking workers). The UK government consulted on a proposal to remove this prohibition but in the end no provisions on this were included in the Trade Union Act 2016.
In November 2016 BEIS announced a review of electronic balloting (as required in terms of the Act). The review process started formally on 1 March with a call for evidence seeking responses by 10 May 2017. The final report is expected to be laid before Parliament, together with the Secretary of State’s response, by the end of December 2017.