The Trade Union Act 2016 (“the Act”) introduces significant reforms to the organising of industrial action, the most radical shake-up since the Thatcher era. It has yet to come into force, although some commentators suggest that it may be 1 March 2017, the date that some of its supporting legislation takes effect.
While some of its provisions were ‘watered down’ during consultation, this did not fundamentally impact the stated aim of protecting the public from “undemocratic industrial action”. So it's worth considering carefully the details of what this will entail, and how this could affect future action.
The most significant of the Act’s balloting reforms is that a ballot for industrial action will not be valid unless 50% of eligible voters participate in the vote. This is in addition to the current requirement that a majority of those voting support the action. The impact of this will vary from sector to sector and employer to employer. On the ground, employers are likely to witness unions rounding up the voters, making it clear that being a silent supporter is no longer an option.
The Act also requires the ballot paper to include a 'summary' of the matters in issue in the trade dispute to which the industrial action relates, the period or periods that each type of industrial action is expected to take place and, if the ballot papers asks whether voters are willing to take part in action short of a strike, the type of industrial action. It is inevitable that there will be litigation and applications for injunctions on the question of whether such requirements have been satisfied.
Trade unions have tirelessly argued for the right to ballot electronically. The Act requires there to be an independent review on electronic balloting which, if introduced, would likely increase the numbers participating in the ballot.
The Act imposes a further requirement on balloting in 'important public services.' In addition to the requirements set out under 'balloting' above, 'important public services' ballots require 40% of eligible voters to vote in favour of the action.
'Important public services' include parts of the health, fire, transport, border security and certain nuclear services, as well as the education of those aged under 17. Regulations and guidance published in December 2016 provide more detail on what falls within some of these categories and includes, among others, doctors and nurses in hospital A&E and high-dependency units; station, train and operations staff in passenger rail services (including the underground); and bus drivers and engineers of a London local bus service.
Timing of industrial action
Currently, industrial action must commence within four weeks (or eight weeks if the employer agrees) of the ballot approving the industrial action. The Act removes this requirement, instead providing that industrial action must take place within six months (this can be extended by up to a further three months by agreement between the parties) of the successful ballot.
Any industrial action after this period requires a further ballot approving industrial action. Currently, there is no maximum period that industrial action can last, provided that the relevant dispute remains live. In the recent industrial action by BA cabin crew, BA did not agree to increase the time for commencing action from four to eight weeks, most likely as a tactic to place the union under pressure to 'put up or shut up'. This won’t be a problem for unions in the future.
Trade unions will be required to provide 14 days’ (or seven days if the employer agrees) notice of industrial action. Currently, seven days’ notice is required, and it's unclear whether this additional seven days will deliver any real benefit for employers. In practice, an employers’ ability to extend the periods is likely to impact on parties’ tactics during industrial disputes.
The Act imposes additional requirements that trade unions must comply with if they are to enjoy statutory protection for picketing during industrial disputes, including the requirement to appoint a picket supervisor and that they be on the picket line or be available at 'short notice.' The uncertainty of what this, and other wording in the Act, means will likely result in employers challenging the legality of picketing.
One of the original proposals was to remove the ban on employers using agency workers to cover striking workers. Unfortunately for employers, this was abandoned while in the House of Lords, arguably the sacrificial lamb to secure the other package of changes.
The Act is likely to significantly impact the future of industrial relations in this country but its full practical significance will not be known for some time.
Lisa Patmore is a partner in the employment team at Lewis Silkin