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Trade Union Act 2016 receives Royal Assent

9th June 2016

The Trade Union Bill finally received assent on 4 May 2016 and contains key provisions which will apply to all unionised work forces and have an increased effect on public services. The Bill, when first proposed last year, had the following key aims:

  • To increase the threshold of approval needed to protect strike action in general, particularly for important public services;

  • To require unions to give longer notice to the employer of any industrial action; and

  • To include greater detail on the ballot paper, set limited timeframes for authorised action and place increased obligations around picketing.

So, what has the Trade Union Act actually changed?

All ballots will now require a minimum turnout of 50% or they will be invalid and must specify:

  • A summary of the disputed matter to which the proposed industrial action relates;

  • If industrial action short of strike is proposed, the types of action that are proposed;

  • The period within which the industrial action or each type of action, is expected to take place.

In addition to the existing requirements for the Union to inform all those entitled to vote of the numbers of votes cast and votes for and against (and spoiled papers) the Union must now also make clear the number of individuals entitled to vote in the ballot and whether or not the number of votes cast was at least 50% of the number of individuals who were entitled to vote.

The mandate to bringing industrial action will also now be limited to a period of six months from the ballot date, which can be increased to nine with the employer’s agreement whereas currently there is an open ended duration providing initial action is brought within 4 weeks.

In addition to the above, providers of health services, education for those under 17, fire services, transport services, nuclear decommissioning and the management of radioactive waste and spent fuel, and border security, will have additional restrictions.

Here, the industrial action will need 40% of those entitled to vote in support before any industrial action can be taken. Similarly, Unions must communicate whether they achieved this 40% threshold in addition to their other notification requirements.

However, the threshold of 40% will not apply if the Union reasonably believes that those being balloted are not normally engaged in the provision of important public services.

The Act also creates greater procedural hurdles and compliance obligations in relation to picketing, including the appointment of an official or other union member familiar with the Code of Practice on Picketing to supervise any picket, and take reasonable steps to notify the police of the picket supervisor’s name and contact details, where and when the picketing will take place and confirmation that the picket supervisor is authorised to act in that capacity.

The effect of these changes is ultimately an increase in compliance obligations for trade unions. It seems likely that these increased obligations will expose the unions to more challenge by employers for non-compliance, particularly in the public services sector and the requirement for “reasonable belief” that the employees are not actually engaged in public services, and therefore that they do not need the support of 40% of all eligible voters.

However, whilst these provisions undoubtedly make it more difficult to take industrial action, it is arguable that the final version of the bill which received royal assent is not as radical as originally intended, with some provisions being softened. For example, it was initially proposed that the mandate to begin industrial action should be limited to four months, and whereas, in the Act as passed, it may be up to nine months. It will be interesting to see however whether the unions are subjected to increased challenge, and whether we see a decline in the taking of industrial action due to low voter turnout. 

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