The Department for Business, Energy and Industrial Strategy (BEIS) has published new Codes of Practice on Industrial Action Ballots and Notice to Employers and on Picketing to accompany the Trade Union Act 2016, the main provisions of which came into force on 1 March 2017.
The Trade Union Act makes significant changes to the formal requirements that must be complied with if industrial action is to be lawful. You can read about these changes here.
The new Codes of Practice have been modified to reflect the changes in the law, and also contain critical information on how these changes will work in practice. We signpost the main areas of change in both of these new Codes below.
Paragraphs 25 – 28 cover the need for a 50% turnout for all industrial action ballots and the requirement for 40% support for industrial action in important public services.
Important Public Services are listed in the Trade Union Act as health services, education of those under 17 years old, fire services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. Separate sets of Regulations give more detail and BEIS has produced additional guidance on these Regulations.
This guidance specifies that if more than half of the union members who are eligible to vote in the ballot are delivering an important public service then the 40% requirement will apply. If workers have multiple duties of which only part involves delivering an important public service, the guidance states that they must be normally engaged in delivering the important public service and that it is for the unions to consider what is normal in the specific circumstances of their sector or workplace. Precisely what this means is likely to be tested in the courts.
Paragraphs 34 and 35 set out the new information that must be included in ballot papers. There is an example of a voting paper for a ballot on taking industrial action at Annex 2 to the code announcing details of the result of the ballot.
Paragraph 48 specifies that the union must as soon as reasonably practicable take steps to inform all those entitled to vote and the employer(s) of:
- the number of individuals entitled to vote in the ballot;
- the number of votes cast;
- the number answering yes to each question;
- the number answering no;
- the number of spoiled papers; and
- whether the numbers voting are 50% of those entitled to vote and in important public services whether or not 40% of those entitled to vote answered yes to the question(s)
14 day notice
The new 14 day notice of industrial action to employers of intended industrial action (or 7 days’ notice where agreed between the employer and the union) is referred to in Paragraph 50 of the Code. It specifies that the union must have notified the employer of the results of the ballot before it can give notice of intended industrial action.
The six month period for lawful industrial action to start to take place is described at paragraph 51 and runs from the last day of the ballot.
The Code of Practice on Picketing
The Code of Practice on Picketing is amended at paragraphs 12 – 16, to include information about the requirement for a picket supervisor who is familiar with the requirements of the Code and can advise on what constitutes ‘peaceful picketing’.
How we can help
Register here for our free webinar, Employee Relations: avoiding and managing industrial disputes. Learn from Chris Harries, EEF’s National Head of Employee Relations, about tried and tested ways to stay in control of employee relations arrangements, maintain working relationships and avoid potential industrial disputes against the backdrop of the new law.
To find out how our Employee Relations experts can support your business, speak to your EEF advisor, call 0808 168 5874 or email HRenquire@eef.org.uk .