The Trade Union Act 2016 - the year ahead

Industrial action ballots

Under the Act, industrial action by persons providing certain “important public services” will need to be supported by at least 40% of those who were entitled to vote in the ballot. The Government has now published draft regulations detailing the scope of these services. These regulations are due to come into force on 1 March 2017 and cover fire, health, transport, border security and education services. Further regulations may also be published in due course covering nuclear decommissioning services.

The regulations do not bring into force either the requirement (applying to all ballots) for a minimum 50% turnout or the additional requirement (applying only to important public services) for 40% support. The Government has nevertheless published a revised draft Code of Practice on industrial action ballots and notice to employers in anticipation of these requirements coming into force.

Calls from Conservative MPs towards the end of last year to restrict industrial action further in light of threatened Christmas strikes and new data showing that over 100,000 extra days were lost to industrial action in the year to October 2016 compared to the year to October 2015 mean that these provisions may well be brought into force soon. However, no date has yet been announced.

Picketing

The Government has also published a revised draft Code of Practice on picketing in anticipation of the new requirements for unions to appoint a picket supervisor. The legal status of the Code remains unaffected but it nevertheless continues to provide very useful practical guidance for trade unions and employers to promote good practice. New suggestions in the guidance include that it might, in certain circumstances, be possible for someone simultaneously to act as a picket supervisor in respect of more than one picket line and that it may be good practice for unions to provide their approval letters to employers voluntarily in advance of commencing picketing.

Electronic balloting

The Government has commissioned Sir Ken Knight to undertake an independent review of electronic balloting for trade union industrial action ballots. His review will consider the security of e-balloting methods, safeguards to prevent intimidation of union members and how best to ensure that strikes can only be held after a clear and positive decision by those entitled to vote. His final report must be presented to Parliament before the end of the year and the Government must formally respond to its conclusions. The report and the Government’s response should provide a good indication about the future of postal balloting rules, which date back to 1992, in the internet age.

Next steps

The draft regulations and Codes of Practice are expected to clear their final Parliamentary hurdles by the end of next month. We will update you once the final timetable for bringing the Act’s key changes into force is published.