Revised trade union proposals 'significantly limit' higher public sector strike ballot thresholds, says expert

The change, which comes in response to a consultation on which jobs should be covered, "waters down" the proposals "to a significant extent", according to employment law expert Christopher Mordue of Pinsent Masons, the law firm behind Out-Law.com. In particular, the government has announced that workers carrying out 'ancillary functions' that support the specified essential public services will not be covered by the change, he said.

"Crucially, this would have applied the higher ballot threshold to many private sector employees engaged in delivering or supporting public services," he said. "This proposal has now been dropped, significantly limiting the impact of the higher ballot threshold."

"There are still some surprising omissions from the scope of the new ballot rules. Airport security staff are covered, baggage handlers are not. The energy sector - both generation and supply - is excluded altogether, despite being a vital public utility. Strikes, or even threatened strikes, by fuel tanker drivers have caused major disruption to fuel supplies in the past but would not be covered at all by the new rules. So it's debatable whether the government has drawn the line in the right place to protect the public from disruptive strikes," he said.

Currently, industrial action can be lawful if a simple majority of those balloted vote in favour. The Trade Union Bill, which is currently before the UK parliament, would introduce a 50% turnout requirement i, along with a number of other changes to the laws governing trade unions and industrial action. However if the majority of those balloted are normally engaged in carrying out  certain specified important public services, the Bill would also impose an additional requirement – at least 40% of those eligible to vote would need to approve the industrial action. =

Following consultation, the 40% threshold will apply to industrial action affecting specific services in the fire, health, education, transport, border security and nuclear decommissioning sectors. The government will now bring forward regulations specifying exactly which key services in these sectors will be covered by the new rules. The final categories have been scaled back from those set out in the original consultation: for example, only those NHS Trust staff who are directly involved in "critical care and emergency services" will be covered, rather than all NHS Trust staff.

The broad reference to "ancillary workers" in the specified sectors being subject to the 40% threshold will be removed from the Bill. In its consultation response, the government said that although there was "some support for the benefits that this proposal sought to achieve", respondents were concerned that it was not sufficiently certain which employees would be included in the threshold. Private sector union members will now be taken into account if they are delivering the specified fire, transport,border security and publicly-funded health services.

Employment law expert Christopher Mordue said that it "remained to be seen" whether the changes would actually reduce public sector strikes.

"While the unions continue to protest that the Bill will make it impossible for them to organise lawful strikes, the evidence shows that this is far from the case – the recent ballots on the junior doctors' strike and threatened Tube strikes saw more than 40% of those balloted voting in favour of action," he said. "The bar may be raised, but it is far from impossible to clear."

"We have already seen one major climb-down by the government on this bill: the scrapping of proposals for new rules on union protests and picketing, which would have required unions to give employers advance notice of leverage campaigns such as demonstrations and interference with customers and suppliers. Now the scope of the public sector strike ballot threshold has been watered down quite significantly. Employers will be hoping that the government holds its nerve and confirms that it will lift the ban on the use of agency workers during strikes, when it issues its response to the final strand of consultation on the Bill," he said.