However now, almost two years after it was first introduced to parliament, the Act has changed the landscape for industrial disputes especially for those involving schools and academies.
Ballots: 50% Turnout Requirement
Previously, section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992 provided that a strike or other industrial action was unlawful unless at least 50% of trade union members who responded to the ballot voted in favour of the action. Section 2(1) of the Trade Union Act 2016 has now amended section 226 so that, in addition to a majority being in favour of the action, at least 50% of all eligible members must have voted.
This appears to be a positive requirement, seeking to ensure that there is sufficient support for industrial action within the relevant union for that action to take place. This ensures democratic support and legitimacy for any industrial action and reduces the risk of industrial action taking place when this is not supported by a majority of the members of that union.
Ballots: Important Public Services: 40% Support Requirement
In ballots of workers engaged in 'important public services', in addition to the requirement that at least 50% of all eligible members must have voted, at least 40% of those entitled to vote must have voted in favour of the action.
The education of those aged under 17 has been defined as falling within the definition of 'important public services'. The Important Public Services (Education) Regulations 2017 specify that teaching at the following institutions are important public services:
Therefore these regulations cover teachers and head teachers at both maintained and academy schools and the enhanced support thresholds will accordingly apply. This is likely to make it more difficult for unions to secure support for industrial action in schools and academies.
The Trade Union Act 2016 has extended the minimum period of notice that an employer can expect from 7 days to 14 days.
The increased notice period will allow schools and academies to take appropriate legal advice and to make contingency arrangements. The extended period of time will also allow schools and academies to put in place the necessary steps to protect the public and those of its employees who are not taking part in the proposed industrial action. It will also offer an increased window for the parties to reach a resolution to avoid the need for industrial action.
Under the Trade Union Act 2016 a ballot in favour of industrial action will remain valid for six months from the date of the ballot (rather than the current unlimited period), or such longer period of time, not exceeding nine months, if the union and employer agree. This will no doubt be welcomed by those schools and academies who have received notification of industrial action years after the original ballot of staff.
It remains to be seen how the provisions of the Trade Union Act 2016 impact on industrial disputes going forward. The unions' approach to the new landscape is not yet clear, although there is a sense that the strict requirements that the union will now be under will impact on their willingness to engage in meaningful dialogue with the employer before calling for an industrial dispute.