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Ballot thresholds
[ch 6: pages 183-185]For all ballots opened on or after 1 March 2017, there are two thresholds, depending whether the majority of balloted workers carry out an “important public service”.
Ballot threshold for all strikes other than in “important public services”
For all industrial action ballots except where the majority of workers carry out an “important public service”, industrial action is not lawful unless at least 50% of those entitled to vote in the ballot did so, and a majority of those voting voted in favour of the action (section 226(2A), TULRCA, section 2, TUA 16). In other words, a failure to vote amounts to a vote against the action.
This change to the law replaced the previous requirement for a simple majority to vote in favour.
Ballot thresholds for “important public services”
For industrial action when a majority of balloted workers carry out an “important public service”, a higher ballot threshold applies. Industrial action is not lawful unless at least 50% of those entitled to vote in the ballot did so and at least 40% of those entitled to vote in the ballot voted in favour (section 226(2B), TULRCA, section 3, TUA 16).
There are six categories of “important public service” (section 3, TUA16): health services, education of under-17s, fire services, transport services, nuclear decommissioning and border security.
There are five sets of Important Public Services Regulations 2017 — one for each category except nuclear decommissioning, where regulations have yet to be drafted. There is non-statutory guidance that is supposed to help unions interpret these regulations.
Here are the services included in each category:
• health services: emergency ambulance services, including ambulance drivers, ambulance control room services and treatment by paramedics; hospital A&E; hospital-based high dependence and intensive care units; hospital-based psychiatric services for conditions requiring immediate attention to prevent serious injury, serious illness or loss of life; and hospital-based obstetric and midwifery services for conditions requiring immediate attention to prevent serious injury, serious illness or loss of life. As well as public hospitals, the definition captures private hospitals that mainly provide publicly funded health services;
• education of under-17s: teaching and other services provided by teachers and head teachers;
• fire services: services by firefighters in extinguishing fires and protecting life and property in the event of fires, including services provided by fire and rescue authority personnel in dealing with calls for emergency help and organising the response (both public and private sector);
• transport services: London local bus services, passenger railways (including underground, metro and tramway), civil air traffic control, airport and port security services involving access to secure areas, screening, search and patrol activities. Both public and private sector workers are caught. Passenger railway services include services for the carriage of customers by rail or tramway, maintenance and repair of trains and network, signalling or controlling, and “any station services that are essential to enable passenger trains to operate safely and securely”. Eurotunnel is excluded;
• border security: examining people who enter and leave the UK (Immigration services), examining goods for import or export (customs); patrol by sea; collection of security data for the purpose of carrying out immigration, customs and border patrol duties; direction or control of any of these functions by a border force officer.
(Section 226(2E), TULRCA, section 3 TUA16)
The 40% threshold must be met if a majority of workers involved in the trade dispute carry out an “important public service”. Unions have a defence if they had a “reasonable belief” that workers were not engaged in “important public services” (section 3(2), TUA 16).
The higher 40% threshold does not apply to devolved public services in Wales: the NHS, education, local government and the fire service (Trade Union (Wales) Act 2017).
ILO balloting standards
The balloting restrictions in the TUA 16 (both the 50% threshold instead of a simple majority and the higher threshold for “important public services”) fall below ILO standards.
ILO supervisory bodies define “essential” (as opposed to “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”.
Transportation services such as passenger railways, the London Underground or the London bus service, and the education of children aged under-17 are not “essential” in the sense used by the ILO. The government has sought to justify the higher threshold for these services by emphasising the economic value of working time “saved”, an approach that ignores workers’ fundamental right to strike to redress the imbalance in the employment relationship, which can only be restricted in limited circumstances.
Where the right to strike is restricted for “essential service” workers, the ILO supervisory bodies expect “compensatory guarantees” such as independent conciliation and mediation procedures to be put in place, so that the dispute is resolved fairly, and that any deadlock is put to arbitration. Needless to say, there are no such provisions in the TUA 16.