The Trade Union Bill last week received Royal Assent and became the Trade Union Act 2016 . The Act introduces significant reforms in relation to the holding of industrial action by trade unions. The legislation involves the most radical shake-up of strike and picketing laws since the Thatcher era despite including numerous amendments that were made in light of significant opposition in the House of Lords. These limited some of the legislation’s more radical proposals but do not fundamentally change its scope or purpose.

The Government must now pass secondary legislation to give effect to most parts of the Act. It must also commission an independent review of electronic strike balloting.

Balloting

The most significant of the Act’s balloting reforms is that a ballot for industrial action will not be valid unless 50% of eligible voters actually participate in the vote. This requirement applies in addition to the usual requirement that a majority of those voting are in favour of the action.

The Act also requires additional information to be provided by trade unions about industrial disputes on ballot papers. Trade unions will need to provide a “summary” of the dispute but will not have to provide a “reasonably detailed indication” as had originally been proposed. This may nevertheless still lead to injunction applications and other litigation over whether the correct wording was used.

Public Services

The Act makes additional changes to balloting in “important public services”. These ballots will require the support of 40% of eligible voters in addition to the 50% participation rate and a majority of those voting being in favour of the action. A ballot of 100 eligible voters would therefore require at least 50 voters to participate and at least 40 voters to vote in favour of industrial action.

This major reform will be brought into force in due course by secondary legislation. The precise meaning of “important public services” will be detailed in that legislation as the Act merely provides that such services must fall within one of the following categories: (i) health services; (ii) education of those aged under 17; (iii) fire services; (iv) transport services; (v) certain nuclear services; and (vi) border security.

Timing of Industrial Action

The Act amends the timeframes for industrial action following a supportive ballot. A mandate for industrial action will now expire after six months instead of four months as had originally been proposed. Employers may agree to mandates being extended for up to an additional three months.

Trade unions will also be required to provide 14 days’ notice of industrial action. Employers may nevertheless agree to shorten that period of notice to 7 days. These timing reforms and the discretion granted to employers about whether to agree to amendment requests are likely to impact on parties’ tactics during industrial disputes.

Picketing

The Act introduces additional requirements with which trade unions must comply if they are to enjoy statutory protection for picketing during industrial disputes. These requirements include appointing a picket supervisor and making advance notifications to the police. This is likely to give rise to additional opportunities for employers to challenge picketing as being unlawful given the uncertainty of some of the wording in the Act, such as the requirement for the picket supervisor to be available on “short notice”.

Next steps

The Trade Union Act 2016 significantly amends the framework for industrial relations but its full practical significance will not be known for some time. The secondary legislation that the Government must now introduce means that the Act may merely signify the end of the beginning of these contentious reforms.

The article was first published by Lewis Silkin.