Ballot thresholds


Under the existing law, industrial action must be approved by a simple majority of those voting (section 226(2)(a)(iii), TULCRA). The law is to change for all strike ballots, once new ballot thresholds under the TUA16 are brought into force.


For all ballots taking place once the new balloting restrictions in the TUA16come fully into force, industrial action will not be lawful unless it has the support of a ballot in which at least 50% of those entitled to vote in the ballot did so, and in which a majority of those voting are in favour of the action (new section 226(2A), TULRCA, section 2, TUA16). In other words, an abstention from voting is to be treated as a vote against the action. 


For workers providing “important public services”, there is to be a higher ballot threshold. For all ballots taking place once the new balloting provisions are in force, industrial action by these workers will not be lawful unless at least 50% of those who were entitled to vote in the ballot did so and at least 40% of those entitled to vote in the ballot voted in favour (new section 226(2B), TULRCA, section 3, TUA16).


Section 3 of the TUA16 identifies six sectors which it describes as “important public services”. Skeleton draft regulations — the Industrial Action (Important Public Services) Regulations 2016 — have been published which attempt to identify what services are caught within each of the sectors. The content of the draft regulations is summarised below, but these lists are not yet in final form:


• Health services: publicly funded emergency, urgent or critical health care services, including services provided by ambulance or associated transport services, hospital A&E, services in hospital high-dependence and intensive care units, and other hospital care services (including diagnosis and treatment) for illnesses, conditions or injuries which require immediate attention to prevent serious injury, serious illness or loss of life. Public sector health workers and private sector workers providing these publicly funded services will be caught; 


• Education of under-17s: teaching and other services provided by teachers and head teachers except at fee-paying schools. Services to pupils aged under 5 and 17 or over are to be excluded;


• Fire services: fire-fighting services, including dealing with calls for help and organising their response (both public and private sector);


• Transport services: London local bus services, passenger railways (including underground, metro and tramway), air traffic control, airport and port security services. Both public and private sector workers are caught. Passenger railway services include maintenance and repair of trains and network, signalling and controlling, ticket sales and “other services that enable trains to operate”;


• Decommissioning of nuclear installations and management of radioactive waste and spent fuel (more detail is to be provided by the government through separate regulations);


• UK border control (public and private sector workers).


(New section 226(2E), TULRCA, section 3 TUA16, draft Industrial Action (Important Public Services) Regulations 2016)


The 40% threshold will have to be met whenever a majority of the workers involved in the trade dispute carry out an “important public service”. Unions will have a defence if they had a "reasonable belief" that workers were not engaged in "important public services" (section 3(2), TUA16).


A proposal to ballot “ancillary workers” at the new higher threshold was abandoned by the government during the passage of the Bill. The government intends to publish guidance for unions and employers to clarify which workers are intended to fall within each of the six categories.


These planned new balloting restrictions (both the requirement for 50% of the votes of the whole bargaining unit as opposed to a simple majority and the higher ballot threshold for “important public services”) fall below ILO standards. The ILO supervisory bodies define “essential” (not “important”) public services as “those services the interruption of which could endanger the life, personal safety or health of the whole or part of the population”.