The Trade Union Act 2016 – what employers need to know

From March 1st this year, the main provisions of the Trade Union Act 2016 come into effect. Several of those provisions change the law on how strike ballots should be carried out.

Section 2 of the Act requires that in order for a ballot to be lawful, at least 50% of those entitled to vote (rather than just those who do vote) must do so in order for the ballot to authorise industrial action.

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).

The important public 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.

Voting papers

When a ballot is carried out regarding industrial action after 1st March, the ballot paper must include a summary of the matter to which the industrial action that is being proposed relates.

If the ballot paper asks a question about whether employees should take part in industrial action that falls short of actual strike action, it should explain what types of action are being proposed.

It should also show the period(s) when the industrial action is expected to happen.

The employer has an entitlement to be given a sample of the ballot paper which is to be sent out. This must happen no later than the third day before the ballot opens.

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