Regulations have now been made confirming a 1 March commencement date for the majority of the provisions of the 2016 Trade Union Act including a 50% turnout requirement, shortened mandates for industrial action following a successful ballot and extended notice period. Additional regulations have been made which specify the important public services to which an additional threshold, requiring 40% support for industrial action among non-ancillary staff regardless of turnout, will apply from this date.
Employment law expert Sarah Ashberry of Pinsent Masons, the law firm behind Out-Law.com, said that unions keen to take advantage of the current regime would now have to mobilise "extremely quickly". Notice of a ballot would have to be served on the employer by 21 February in order to give the necessary seven days' notice before issuing ballot papers to their members the day before the law changes, she said.
"Ongoing disputes are unaffected by the new law, provided that unions actually serve notice of any industrial action that they propose to take on or before 28 February 2017," she said. "If they do so, they can take advantage of the existing law, which means they only have to give seven days notice of strike or other action."
"Any official notices about industrial action served on 1 March 2017 onwards will be caught by the new stricter law, where 14 days notice is required of strike action giving employers a more valuable heads-up. Where no official ballot notice has been received by 21 February employers can be confident that any future dispute with their union members will be under the new regime," she said.
The Trade Union Act, which received royal assent in May 2016, introduced several Conservative manifesto commitments on trade union reform. The new regulations bring these into effect from 1 March.
Currently, industrial action can be lawful if a simple majority of those balloted vote in favour. The Act introduces a 50% turnout requirement. If the majority of those balloted perform one of the important public services specified in the regulations, at least 40% of those eligible to vote must approve the industrial action. These services are education, fire, health, transport and border security, which are further defined in the relevant regulations.
The Act also introduces a shortened mandate for strike action following a successful ballot to six months, or nine with the agreement of the employer; requiring clearer descriptions of the nature of the dispute and the planned industrial action on the ballot paper; and doubling the amount of notice of industrial action that must be provided to the employer from seven to 14 days. Trade unions will also have to comply with additional requirements when picketing, including the responsibility to appoint a picket supervisor.
Employment law expert Sarah Ashberry said that the new thresholds would not necessarily result in fewer strikes.
"Some of the high profile industrial action seen recently – for example, in the rail sector - took place among highly organised groups of workers who are well able to surpass the thresholds, and already do so," she said.
"Our experience is that in the private sector, the 50% threshold will not be a deterrent. Unions only proceed with campaigns and ballots where they are confident of getting this number of their people engaged. Strike action with smaller numbers is futile for them," she said.