Guidance published on "important public services"
In our Looking ahead to 2017 article we gave an update on recent developments relating to the Trade Union Act 2016, specifically, more details of what is meant by the “important public services” of health, education, fire, transport and border security.
Five sets of draft Regulations were published in early December and the government has now prepared non-statutory guidance on the Regulations. By way of a reminder, the Act will introduce a statutory minimum 50% voting threshold of eligible union members in strike ballots. In addition, where industrial action is proposed in important public services, 40% of eligible voters must support industrial action.
Whilst the draft Regulations define the five services which have been specified as important public services, the guidance sets out how a trade union can determine whether the 40% threshold applies to a particular ballot and examples of workers in each sector.
The ballot may well involve a mixture of workers some of whom carry out an important public service and others who do not. In this scenario, the 40% threshold will apply if a majority of union members who are eligible to vote in the ballot are delivering an important public service unless the union reasonably believes this not to be the case.
There may be instances where a worker has multiple duties and spends some time delivering an important public service and the rest of the time on other tasks. They must be "normally engaged" in delivering the important public service to be taken into account for the purposes of the ballot. Significantly, it is for the union to consider what is normal in the specific circumstances of their sector or workforce and the guidance sets out some matters that may be relevant. The list is not an exhaustive list and the union does not have to take all these matters into account:
- How regularly the workers deliver important public services;
- The proportion of time that the worker spends on delivering important public services;
- Whether the worker is contracted to deliver important public services;
- Whether the substantive role of the worker is to deliver important public services at the time of the ballot or likely industrial action;
- Whether the worker has been temporarily allocated to different duties, and the time period this is expected to last for.
Analysing all this information could be quite a time consuming exercise and the guidance states that, it may be in the union's interest to determine the relevance of the 40% threshold to workers with multiple duties in advance of a ballot.
Keeping membership records up to date and obtaining information about the members' roles will be crucial for a union and this will also help the union to establish that it has a reasonable belief in the applicability or not of the 40% threshold. If it can show it had a reasonable belief, this will be a defence to a legal challenge even if it subsequently transpires that the belief was wrong.
As mentioned in our previous article, health services will include emergency ambulance services, accident and emergency, high-dependency units and intensive care services as well as emergency psychiatric, obstetric and midwifery services. The guidance now gives examples of workers who deliver these services including paramedics, doctors, nurses, midwives, obstetricians and emergency care assistants. In relation to transport services, which will include London bus services, passenger rail services (but not including international rail services), examples of workers delivering the service include bus and train drivers, engineers, depot managers, train guards and signallers. As for education, teachers and those fulfilling the role of head teacher are examples of workers delivering the important public service.
There is still no confirmed date when these Regulations and the minimum balloting thresholds will be introduced. However, 1 March or 21 days after the Regulations are made if later has been reported as a possible date.
Finally, one other development to be aware of is that the Welsh government (which has always considered the Act to be damaging and divisive) is of the view that the Act is interfering with devolved policy and powers. This is because the NHS, education, local government and fire services are devolved public services in Wales. On 16 January, the Welsh Government introduced a Bill to dis-apply parts of the Act which relate to these services in Wales. We will keep you updated.