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Key Workers and the 40% industrial action ballot threshold


The announcement by the Government almost immediately after the 2015 General Election that it was bringing in a new Trade Union bill caused a great deal of consternation, not least from the unions and their supporters. A particular aspect of the bill that caused disquiet was the proposal to change the law on strike ballots.


The Bill has now received Royal Assent and is now known as the Trade Union Act 2016.


Section 3 requires a 40% threshold for industrial action in certain important public services.


The implications of this are that in order for industrial action to take place in those public services, at least 40% of those entitled to vote in the ballot must be in favour (not 40% of those who actually do vote).


In addition, Section 2 of the Act also requires that in order for a ballot to be lawful, at least 50% of those entitled to vote must do so in order for the ballot to authorise industrial action.


Following a consultation on the public services to which the 40% threshold should apply, the government has now announced the draft regulations. The services affected are as follows:

  • Transport – UK passenger rail services (covering drivers, conductors, security staff, maintenance, signalling and ticketing staff); London (but not other) bus services; civil air traffic control; airport and port security.

  • Border control.

  • Nuclear decommissioning.

  • Publicly-funded emergency, urgent and critical healthcare services. Services in private hospitals would be covered where publicly funded.

  • Firefighting, including dealing with calls.

  • Teaching and school leadership of pupils aged 5-16 in non fee-paying schools.


For health and education, private sector workers are included only if they are in publicly funded hospitals or schools, whilst the other sectors will follow the rule that private sector union members will be included in the threshold if they are delivering the specified services.


Ballots have to be run under the 40% threshold if a majority of workers involved in the dispute are carrying out one of the important public services.



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