Industrial action in "important public services"
Author: Darren Newman
Consultant editor Darren Newman considers the additional restrictions on industrial action for "important public services" under the Trade Union Act 2016. He also explains why any further limitations on industrial action might not be wise with Brexit on the horizon.
It now seems likely that the bulk of the Trade Union Act 2016 will come into force in March this year. Just before Christmas, the Government published a number of sets of Regulations aimed at defining "important public services", to come into force on 1 March. This clears the way for commencement orders covering those provisions of the Act dealing with the voting thresholds needed to authorise industrial action.
Regulations are necessary because of the additional requirements the Act imposes on industrial action ballots where the majority of those entitled to vote are normally engaged in "important public services". To authorise industrial action, such ballots need to achieve a "yes" vote equivalent to 40% of those entitled to vote (in addition to the general requirement under the Act for all industrial action ballots to achieve a turnout of at least 50%). In other words, if 100 union members are balloted for industrial action and 51 of them are engaged in "important public services", for the ballot to be valid, at least 50 members must vote, and at least 40 of them must vote "yes".
The Act does not clearly define what important public services are, but simply gives the broad categories that qualify. These are: health services; the education of people under the age of 17; fire services; transport services; the decommissioning of nuclear installations (and the management of radioactive waste and spent fuel); and border security.
The Regulations that we now have aim to put some flesh on these bones by defining exactly what kind of work is covered. Trade unions were worried that the Act would cast its net too wide, but in fact the definitions set out in the Regulations are very limited. Taking the Important Public Services (Transport) Regulations 2017 as an example, these specify that London bus services, passenger train services, air traffic control and security services at ports and airports are all "important public services". However, bus services outside London, freight transport and international services such as Eurostar are not covered. Neither are airline cabin crew or baggage handlers.
On health, the Regulations are just as narrow. They cover emergency ambulance services, hospital-based services dealing with accidents and emergencies, hospital-based high-dependency and intensive-care units, and hospital-based emergency psychiatric, obstetric and midwifery services. Doctors and nurses as a whole are not covered, provided that the majority of those being balloted are not "normally engaged" in those particular services. In the other Regulations it is clear that only those employees engaged in the actual delivery of the service are covered.
While it is possible to imagine all sorts of scenarios in which the question of whether or not the 40% threshold applies is contentious, I doubt if we will see any actual litigation on the point. The industrial action that attracted so much publicity over Christmas was notable for the fact that the ballots relied on all had a high turnout and a large majority in favour of action. It is true that, in the past, many nationwide ballots have attracted a low turnout, but hitherto unions have had little incentive to ensure that their members take part in the vote. In reality, a union would be foolish to call industrial action if it did not genuinely believe that such a move was supported by the membership, and it is likely that the need to achieve a minimum level of turnout will simply encourage unions to work to ensure that the thresholds are met. Indeed, if trade unions are smart, they will be able to turn the new rules to their advantage. If a union comes to negotiations following a ballot that demonstrated overwhelming support for industrial action, its position will be all the stronger.
The new balloting thresholds should be seen in tandem with the limitation on the effectiveness of an industrial action ballot, which I would expect to come into force at the same time. A union can currently take industrial action for as long as the dispute lasts following the ballot. This can mean - as in the case of a current dispute involving teachers - industrial action still being called several years after the ballot was held. The Trade Union Act will require the union to reballot after six months (which can be extended to nine months with the employer's agreement). Unions could again seize the opportunity to demonstrate their members' continuing support for action. However, the time limit could also prompt them to conduct more intensive industrial action with the aim of forcing an earlier resolution. The result of the new rules could actually be to increase disruption rather than reduce it.
If we continue to see high-profile disruption to public services (particularly in London where politicians might be directly affected), we can expect to see calls for even more restrictions on industrial action. Indeed, Chris Philip MP recently tried to bring in a Private Members' Bill requiring any industrial action in "critical national services" to be declared "proportionate" by a High Court Judge. The move to introduce the Bill was defeated, but it would be surprising if the Trade Union Act 2016 became the last word on the regulation of strikes.
One difficulty for any government seeking to take the law on industrial action further is the role of international law. The International Labour Organisation (ILO) sets out labour standards including the right to strike. While limitations placed on industrial action in critical services are allowed, this is regarded by the ILO as being a very narrow exception limited to services crucial to the functioning of the country and the protection of life and limb. A bus drivers' strike simply will not meet that standard, no matter how many people are late for work.
Ironically, leaving the EU might make the views of bodies such as the ILO more, rather than less, important to the UK. The World Trade Organisation has specifically endorsed the labour standards adopted by the ILO, and if the UK is seen to flaunt those standards that might complicate its transition to full World Trade Organisation membership post-Brexit. The Government would be wise to resist the temptation to impose further restrictions on strikes until the Brexit dust has settled.
