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The Trade Union Bill - what is an 'Important Public Service' and what ballot threshold applies?

on Friday, 29 January 2016.

The Government undertook several consultations in relation to the new Trade Union Bill in the summer of 2015. The Government has now released its response to the consultation detailing the proposed ballot thresholds in important public services.

The purpose of the consultation was to assist in deciding the public service roles that would be subject to the additional 40% ballot threshold.

Government Consultations

At present, in order for a strike or other industrial action to be lawful a trade union must undertake a postal ballot and over 50% of the votes cast must be in favour of the proposed action.

The Government issued three consultations last year, we have reported on tackling intimidation of strike workers and we are awaiting the Government's response regarding hiring agency staff during strike action.

The other consultation is in relation to ballot thresholds in important public services. There were 200 responses to this consultation and VWV participated in the response submitted by the Employment Lawyers Association. The Government has now published its response.

What is the outcome?

The Government's aim in introducing new legislation governing industrial relations was to restore balance and fairness. The Government is concerned about detrimental impact on the public due to strike action within certain important public services.

The Government's response deals with two key issues: firstly the definition of 'important public services' and secondly the imposition of a further ballot threshold.

The Government has confirmed that it will introduce an additional 40% threshold. Accordingly, there will be, in effect, a two stage test for industrial action in important public services.

1. In all cases, at least 50% of those eligible to vote must vote and

2. In ballots relating to important public services, at least 40% of those eligible to vote must vote in favour of the proposed action.

The additional 40% threshold will apply if the 'majority' of workers are providing important public services. This additional test sets a high hurdle for securing a strike, and other industrial action within important public services.

The Government lists the services to which the 40% ballot threshold will apply in its response to the consultation. The services listed are: fire, health, education, transport, border security, and nuclear decommissioning. Within each sector the Government has provided specific examples of the relevant occupations subject to the additional threshold.

By way of example, the response specifies that in relation to health services, only publicly-funded emergencies, urgent and critical healthcare services including emergency ambulance services, A&E, high-dependency units and intensive care are subject to the higher threshold. It goes on to cite examples of the relevant occupations being doctors, nurses and other workers in certain critical services.

The Government had initially proposed that support staff would be included in the additional threshold if their absence would have an adverse impact on the delivery of the service. However, following the majority of respondents to the consultation disagreeing with this approach the Government has determined not to include ancillary workers and the threshold will only apply to those delivering the services.

The Government had also originally proposed that the additional threshold would apply to important public services being delivered by both public and private sector organisations. However, having taken the views within the consultation into account, the Government has narrowed the scope of the additional threshold. Accordingly, private sector workers in healthcare and education will not be covered by the threshold. However, where a private sector company provides publicly-funded healthcare the additional threshold will apply.

In the fire, transport and border security sectors, the threshold will apply equally to employees in both the private and public sector.

There will be further guidance published to clarify specifically which workers are captured by each important public service listed.

The Government will be reporting further in relation to nuclear decommissioning.

Best Practice

Given the forthcoming changes it will be sensible for all employers to review policies, procedures and arrangements relating to industrial relations.

For more information, please contact Gemma Cawthray in our Employment Law team on 0117 314 5266.

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