New Year strike action: Would the Trade Union Act help?
Author: Paula Rome
Applies to: England, Wales and Scotland
As tube strikes make headlines and the on-going Southern rail dispute continues to impact passengers you may be wondering what became of the government's much publicised changes to trade union laws?
Possibly the more interesting question is, if in force, would the new legislation have had any beneficial effect for those affected?
The Trade Union Act 2016 (the 'Act') received Royal Assent on the 4 May 2016, but it is only slowly being brought into force, provision by provision. Like many other legislative changes it appears to have been mired in Brexit complications.
The stated aim of the Trade Union Bill was to protect the public from 'undemocratic industrial action'. Alongside other provisions, the Act was designed to ensure industrial action could only go ahead following a clear, positive and democratic mandate from union members by requiring a ballot turnout of at least 50%.
In addition, important public services such as health, education, transport, border security and fire sectors, required a threshold of 40% of members to vote in support of industrial action for the action to be legal.
Although the Act has received Royal Assent, its provisions need to be brought into force by further regulations and this process has been proceeding at a glacial pace. The only substantive section in force at the moment is the section providing for a review of electronic balloting.
Definition of 'public service'
The public services section has been brought into force but only for the purposes of providing a definition of a 'public service'. A set of five regulations have been drafted to supply this definition and these draft regulations are not due to come into force until 1 March 2017 or, 21 days after the regulations are made if this is delayed further. Even then this provision of the Act will need to be in force in full (not just for definition purposes) for it to be effective. It seems likely that a similar March timescale is envisaged.
Other draft documentation supporting the Act has been published by ACAS.
Draft codes in relation to industrial action ballots and notice to employers and picketing are due to come into force on dates to be announced.
The code in relation to ballots and notice contains guidance on the information to be included on ballot papers, information to be given to employers, notice regarding the start of industrial action and the time within which action must be taken.
Given that the codes are intended to support the Act's provisions they won't be in force before the Act is in force.
The drip feed enforcement of the Act has made it quite difficult to anticipate when any meaningful changes will take place. But would the proposed changes have avoided the Southern rail and tube strikes?
The rail strike action was reportedly supported by a resounding 87% 'yes' vote with a high, 77%, turn out (the tube vote not far behind at 85%). So if the reported support levels for the strikes are accurate then no, nothing in the voting provisions of the new Act would have changed this situation.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.