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Reforms to strike law: A recap

The Southern Rail strikes throw into sharp relief new strike law under the Trade Union Act 2016

The latest instalment of the industrial unrest at Southern Rail strikes saw members of the Rail, Maritime and Transport Union start a five-day strike, suspended after three days for further talks, over plans for drivers to operate carriage doors instead of conductors.

This action brings into sharp focus the reforms the government made to strike law under the Trade Union Act 2016, but which are not yet in force. Strikes will no longer require just the support of the majority of those who voted in the ballot. Instead half of those entitled to vote will need to support the proposed action. Moreover, where the majority of those to be called out on strike are 'engaged in the provision of important public service' at least 40% of those entitled to vote must have voted in favour.

What will constitute 'important public services' has not yet been defined. But it is likely to apply to areas such as health services, education of those aged under 17, fire services and transport services. In the context of the current industrial action on the railways, those engaged in passenger railway services and conductors are likely to be relevant occupations to which these new rules will apply.

While action that commands strong support from the workforce will not be prevented by the new rules, these new thresholds will potentially make calling strike action more difficult. There have been strikes in the past that would have been prohibited by these new provisions, such as the one organised by the National Union of Teachers in 2014.

The Act will also make further changes. Ballot papers will need to include more than just a question as to whether the member is prepared to take part in a strike, or action short of a strike. They will need to summarise the matter in dispute, what type of industrial action is being contemplated, and the period within which the industrial action is intended to take place. Furthermore, unions will have to provide employers with at least 14, rather than seven, days’ notice of the planned industrial action.

A mandate for industrial action will expire six months after the date of the ballot, or can be extended up to nine months if agreed by the employer and the union. Thereafter unions will be required to hold another ballot in order to take further industrial action, rather than being able to solely rely on the original decision indefinitely.

Unions will also need to appoint a supervisor to oversee picketing activities. They must tell the police the name and contact details of the supervisor and the location of the picket line before providing the supervisor with a letter stating that the action is approved by the union. The supervisor must be readily contactable, wear something identifiable. and be present at the picket line at all times.

It remains to be seen whether these new rules will deter unions from trying to call industrial action and whether it will weaken their position, particularly in the public sector. If official industrial action becomes more difficult for unions to arrange lawfully there are concerns that unofficial and sporadic action will become more widespread. This would add to the disruption employers face in the course of an industrial dispute, potentially creating more legal issues and litigation.

Charles Wynn-Evans is partner at Dechert