Trade Union Act: health sector implications

As well as introducing significant changes to the law of industrial action ballots, the Trade Union Act includes a number of measures targeted directly at the public sector in general, and the health sector in particular. Stuart Craig from Mills and Reeve explains more.
 
 
The new balloting rules: the voting thresholds
The two headline measures are a 50 per cent turnout threshold for all ballots, plus an additional requirement for “important public services” that 40 per cent of the workforce endorse any industrial action proposed. Ballots will continue to be decided by a simple majority, but the additional 40 per cent requirement will mean that in practice a much higher majority will be required when important public services will be affected. So for example, a yes vote of at least 80 per cent would be required on a 50 per cent turnout in ballots involving important public services.
 
The precise details about which workers will be covered by the 40 per cent threshold will be set out in regulations, currently only available in draft form.  As far as the health sector is concerned this is likely to mean doctors, nurses and other workers in the ambulance services, maternity services, A&E services, intensive care and high dependency unit services.  This includes where these services are publicly funded and provided in private hospitals.
 
The Act makes it clear that this additional requirement will only apply where the majority of workers entitled to vote in the ballot are “normally engaged” in the provision of these services, unless the union “reasonably believes this not to be the case”.
 
Other new balloting requirements
As well as the new voting requirements, a number of other new balloting rules have also been introduced.
 
The ballot papers will need to include more information than is currently required. This will include a summary of what the dispute is about, the precise industrial action envisaged and the period within which each type of industrial action will take place.
 
Employers will be entitled to 14 days’ notice of industrial action (the current requirement is 7 days).
 
Industrial action authorised by a ballot will need to be completed within six months (or nine months if the employer and the union agree) otherwise a fresh ballot will be required. There is no set time limit in existing legislation for industrial action to be completed, though it must normally be started within four weeks of the ballot.
 
Picketing
There are new legal requirements for union supervision of official pickets. These include the appointment of a “picket supervisor” who will be required to be present where the picketing is taking place, or able to attend at short notice. Failure to observe these requirements will mean the union’s immunity will be lost, paving the way for injunctions and other steps to stop the picketing. Currently similar provisions can be found in the 1992 Statutory Code of Practice on Picketing, which does not have the force of law, though it must be taken into account by courts and tribunals when assessing the lawfulness of picketing.
 
These measures are designed to address the Government’s concerns about intimidatory behaviour by a minority of pickets. However, more radical proposals floated in a consultation paper published with the original Bill, which canvassed the possibility of a new criminal offence of intimidation on the picket line, have been dropped.
 
Agency staff
In another consultation paper published with the original Bill, the Government sought views on the impact of repealing the provision in the Employment Agencies Regulations which prevents the supply of agency staff to cover for striking workers.  These rules do not apply to directly employed bank staff.
 
Although the Conservatives committed to the repeal of this provision in their 2015 manifesto, the Act contains no measures amending the Regulations. The response to the consultation (which closed in September 2015) has not yet been published.
 
Facility time
NHS organisations and other public sector employers will be required to publish information about the facilities accorded to union officials. These will include the number of officials, the amount of paid time spent on union activities and the percentage of the wage bill spent paying for this. The detailed requirements will be set out in regulations.
 
Ministers will be given reserve powers, which among other things will enable them to limit the amount of money spent by public sector employers in this way. However, there are a number of restrictions in the Act about how these powers can be exercised. These include a requirement to serve a warning notice giving the relevant employer a minimum of a year to address the concerns raised in the notice. Reserve powers cannot in any event be exercised sooner than three years after the relevant regulations have been brought into force.
 
New rules on check-off arrangements
The Government originally brought forward a provision in the Bill which would have banned check off arrangements entirely in the public sector. As a result of opposition amendments, the Act now provides that public sector employers may continue to operate check-off systems to collect union dues as long as two conditions are fulfilled.
 
Firstly, affected workers must have the option to pay their trade union subscriptions by another means. Secondly, arrangements must have been made for the union to make a reasonable payment to the employer in respect of its operation of the check-off system.
 
Stuart Craig