New laws in relation to industrial action came into force at the start of the month. Louise Singh sets out the most significant changes.
The Trade Union Act 2016 became law on 4 May 2016 but changes set out in the legislation were not brought into force straight away.
Key provisions of the Act, setting out significant new requirements for protected industrial action, come into force today (1 March 2017).
Provisions which have come into force include:
- Ballot threshold of 50%: For a ballot to support industrial action, at least 50% of those entitled to vote must vote (with more than half of those who vote saying ‘yes’ to action).
- Additional 40% support requirement in ‘important public services’: For those in ‘important public services’ at least 40% of those entitled to vote must vote ‘yes’ to action. The meaning of ‘important public services’ is defined in separate regulations which have also come into force and cover health, fire, border security, education and transport. The threshold will include many employees delivering support and ancillary services. The new thresholds will only apply to ballots that open on or after 1 March 2017.
- New information requirements: The Act introduces new requirements regarding the information to be included on a ballot paper, information that must be given to union members regarding the result of a ballot and information that must be given to the certification officer. Most importantly, a ballot paper must now include a ‘summary’ of the matters in issue in the trade dispute. It must specify the type of action proposed and the period in which any action is expected to take place. The new requirements will apply only to ballots that open on or after 1 March 2017.
- New notice requirements: Going forward, an employer must receive a minimum of 14 days’ notice of lawful industrial action (increased from 7 days). However, the employer may still agree to accept 7 days’ notice. This requirement will only apply where the employer receives notice on or after 1 March 2017.
- New expiry period for ballot mandate: A ballot in favour of industrial action will now remain valid for a period of 6 months from the date of the ballot (or a longer period not exceeding 9 months if the union and employer agree). Previously there was no fixed end point by which action ceased to be supported by the original ballot. The new limit will only apply to industrial action where the ballot opens on or after 1 March 2017.
- New requirement to supervise picketing: The Act introduces new legally enforceable requirements for an identified picket supervisor to attend at each picket. This is someone whose details will be given to the police, who has a letter of authorisation and who wears something that makes them readily identifiable on the picket line.
What does this mean for me?
Broadly, these changes are good news for employers as they raise the threshold for lawful industrial action. Previously only a simple majority of votes cast needed to support industrial action (which could be a relatively low number if turnout was low). The new 50% mandatory turnout threshold means that a proposal to strike must have solid support for industrial action to be lawful. Any element of apathy is likely to mean that the tougher threshold is not met.
Similarly, the new expiry period will put an end to ‘rolling’ mandates (with strike action taking place many months after voting originally took place) and should help to ensure that walkouts only take place over ‘live’ and clearly defined issues.
The change most welcome to employers is perhaps the increased notice requirement, which will buy valuable extra time to put contingency plans in place to mitigate the potential adverse impact of a strike.
Arguably however, the 40% ‘important public services’ threshold will have less ‘bite’ than anticipated. The Government has produced separate guidance intended to help unions and employers apply the 40% threshold in practice, which suggests that unions will be given very broad discretion to determine whether the 40% threshold applies. If the union ‘reasonably believes’ that the majority of members balloted are not carrying out an important public service (even if that belief is erroneous), it will not have to meet this more stringent target and will have a defence to legal challenge
These changes have been looming for almost 10 months since the Trade Union Act came into force and employers and unions alike will welcome the end of this period of limbo. The full impact of the changes will become clear in the coming months as parties become accustomed to these new terms of engagement.
However, there may still be trouble ahead for this controversial legislation. The Trade Union Act had a difficult passage through Parliament and remains unpopular in many quarters. While the Act extends to the whole of Great Britain, the Welsh Government has introduced a Bill that aims to reverse its impact. This means that, if the Bill becomes law, key aspects of the Act will not have effect in Wales. The Welsh Government has expressed concern that the Act will lead to “confrontational relationships between employers and workers” and risks “undermining rather than supporting public services and the economy”. The Scottish Government has also previously sought exclusion from the Act on the basis that it is not compatible with its “collaborative approach” to unions.
These changes will undoubtedly alter the dynamics of industrial disputes within your organisation. If your business is facing industrial action we are happy to advise you.