The Trade Union Act: key measures

May 20, 2016

Parliament has passed a new law on strikes, trade unions and pickets. Phil Allen sets out the key points.

The Trade Union Act has been passed by Parliament and is now law. Most importantly it introduces significant new requirements for protected industrial action. Whilst the Act will not now be further amended, it will only actually become law when regulations bring it (or parts of it) into force. The new law is likely to be good news for employers.

The detail – industrial action

Legally employees and their unions are protected against certain claims from employers if industrial action is taken in furtherance of a trade dispute. The unions must comply with certain complex requirements around ballots and notification for industrial action to be protected. The Trade Union Act adds to these requirements with some new obligations as follows:

For a ballot to support industrial action, at least 50% of those entitled to vote in the ballot must vote. This is a significant additional requirement. Previously only 50% of those actually voting needed to support action, which can often be a relatively low number if the turn-out is low. This new requirement means that at least half of the members of the trade union who the union reasonably believe at the time of the ballot they will be inducing to take part in the action, must actively vote (with more than half who vote saying yes to action). So apathy or indifference will stop lawful action taking place.
For those in important public services, at least 40% of those who are entitled to vote must vote yes (which must also be more than half of those voting). The Act itself does not determine exactly who and what occupations will be included in this definition which will need to be confirmed in subsequent Regulations which can cover: health services; education (schools not FE or HE); fire services; transport services; nuclear decommissioning and management of radioactive waste and spent fuel; and border security. This is likely to cover both private and public sector organisations delivering these services.
The ballot papers issued will also need to include a ‘summary’ of the matters in issue in the trade dispute. What this means may lead to some future litigation but the detail required was watered down during the passage of the Bill. It was originally proposed that a ‘reasonably detailed indication’ of the issues in dispute would be required.
A ballot will cease to support action after six months, or nine months if the employer and the union agree. So this gives a ballot a limited shelf-life (but longer than was originally proposed).
The union must give you two weeks notice of when industrial action will commence – doubling the previous period. This is the notice required after the successful ballot, which gives you time to negotiate, prepare for the strike, or inform those affected such as customers, service-users and parents. This will be one of the most welcome changes for many employers.

So if you have a group of 1000 trade union members voting about potential strike action, 500 of them will need to vote otherwise action won’t be lawful. If 500 vote, 251 will need to vote yes. For those who fall in the important public services (when they are defined), at least 400 will need to vote yes (if between 500 and 800 vote, with a turnout of 500 required). However importantly this remains about the number of trade union members in the group who may take action, it is not about percentages of those in the affected workforce as a whole.

One concession made during the passage of the Bill was that the Government agreed to commission an independent review into electronic balloting for industrial action within six months. We may therefore soon see balloting rules changed to work with modern technology. However, the Act only contains an obligation to undertake the review and does not introduce any new rules on electronic balloting or set out any details of such a system might operate.

The detail – other points

For picketing, the Act introduces new legally enforceable requirements for an identified picket supervisor at each picket. This is someone whose details will be given to the police, who has a letter of authorisation, and who wears something which makes him/her readily identifiable. This is expected to make compliance with the code of practice on picketing more effectively enforceable.

Some of the hardest fought elements of the Act related to ‘check-off’ (payroll deductions of trade union subscriptions by public sector employers) and facility time in public bodies. The Government originally proposed to put an end to ‘check-off’ but the House of Lords amended the Act to allow the practice to continue provided that certain conditions are met.

In respect of facility time, the Act provides that further regulations may in future require certain employers to publish facility time information (such as the amount spent on paid time off) and may limit the amount and cost of facility time. However details are not yet clear and a period of consultation is expected before any such rules come into force.

What does this mean for me?

This Act will be important for those of you in sectors or industries where managing periods of industrial action is part of your role. It may reduce the bargaining power of unions where their position does not have strong support from their members or they have a largely apathetic membership. However where industrial action has strong support, this Act will not stop it. The changes to notification and the validity of ballots will alter the dynamics of your disputes.

The new industrial action provisions will not apply to existing action upon which a ballot has already commenced (or indeed where one commences prior to the Act actually coming into force).

Comment

How you respond to potential industrial action is very important. On occasion considering obtaining an injunction will be the right approach. As the new law comes into force we expect to see an increase in such proceedings as the new provisions bed in. If you do find yourself faced with potential action, do take advice.

Phil Allen is a partner in the Employment, Pensions and Immigration team at Weightmans. He can be contacted on 0161 214 0504 or This email address is being protected from spambots. You need JavaScript enabled to view it..