The Trade Union Act received Royal Assent on 4 May this year – the ninetieth anniversary of the 1926 General Strike. The Act imposes sweeping new restrictions on the rights of trade unions and workers – the biggest set of changes to trade union law since the 1980s. Several of its provisions appear to breach workers’ human rights to freedom of association and freedom of assembly, and the Act is vulnerable to legal challenge on those grounds. Pre-strike ballots are dealt with in sections 2 and 3 of the Act. The aim here is to introduce new higher thresholds which a trade union must meet if subsequent industrial action is to be lawful. An obligation to ballot workers in advance of industrial action was first introduced in the UK in 1984, when it was provided that in order to benefit from the statutory immunities against liability for industrial action, a trade union had to hold a ballot of the relevant workers, and to win the support of a simple majority of those workers. The stated aim of the move was to strengthen the democratic right of union members not to be called upon to take industrial action without having had the opportunity to vote on whether such action was desirable (Democracy in Trade Unions Cmnd 8778, 1983).
In the years since, the number of days lost to industrial action has, of course, fallen dramatically. Pointing to the relatively small number of cases where industrial action has been taken on the back of a ballot in which there has been a low turn-out, however, the Government emphasised its concern about a lack of ‘fairness’ and ‘democracy’. In order to address these concerns, the new rule in section 2 of the Act, is that at least 50% of the union members entitled to vote should have to take part in the ballot in order for it to be valid. For example, in a ballot affecting 200 union members, at least 100 of those members would have to vote in order for it to be valid, and a simple majority of those voting would have to vote in favour of taking industrial action. In the case of ‘important public services’ – health, education of those aged under 17, fire services, transport, border security, and nuclear decommissioning – there is an additional requirement that 40% of all those entitled to vote should vote yes (section 3). So, in a ballot affecting 200 union members, at least 100 of those members would have to vote, and at least 80 would have to vote in support of the industrial action.
According to research carried out by Darlington and Dobson, the effect of the new rules is likely to be dramatic.  Many trade unions will find it very difficult to organise lawful industrial action, especially in national collective bargaining negotiations and against government-initiated austerity measures, both of which have greatest impact on the public sector. Indeed, Frances O’Grady has argued that the measures would ‘effectively end the right to strike in the public sector’. 
Sections 2 and 3 breach international labour standards and – because its terms are increasingly interpreted with reference to international labour standards – may also breach the right to strike as protected by Article 11 ECHR. Under international law, pre-strike ballots may be allowed in certain circumstances but only if they are ‘reasonable’ and do not place a ‘substantial limitation’ on the means of action open to trade unions.  The requirement in Section 2 that an absolute majority of all the workers involved in the industrial action vote in favour of it would likely be judged unreasonable, since it ‘could excessively hinder the possibility of carrying out a strike, particularly in large enterprises’ (ibid). Section 3 specifying the additional and more restrictive 40% threshold is an even clearer violation of ILO standards, since all of the current evidence suggests that this would constitute a very ‘substantial limitation’ on the unions’ freedom of action. It is important to note here the significant slippage that occurred between the Queen’s Speech reference to ‘essential’ services and the Bill’s reference to ‘important’ services. Under international law, the right to strike may be restricted in ‘essential services’, however these are defined narrowly as services the interruption of which would ‘endanger the life, personal safety or health of the whole or part of the population’.  So while, for example, the fire service would fall within the definition of ‘essential services’, education very clearly would not. Even in the case of essential services, however, international law does not anticipate the use of special balloting thresholds (which, as mentioned, should be always be reasonable and not place a substantial limitation on ability to take industrial action) but instead either: (1) a minimum service requirement, agreed between the employer and the trade union; or (2) a complete prohibition on industrial action to be replaced with a ‘compensatory guarantee’ of binding compulsory arbitration. 
Of course, any interference with an Article 11 ECHR right can be justified under Article 11 (2) where the measure is ‘prescribed by law’ and is a proportionate means of achieving a legitimate aim. It is difficult to see how these elevated ballot thresholds could be justified under 11 (2), however, since they are not obviously directed at ensuring a minimum service where disruption could endanger the life, health or the personal safety of the population. (Again, the justification of restricting measures under Article 11 (2) will be informed by ILO standards.)
If the Government was truly motivated to ‘improve democracy’ by increasing participation rates (and not just intent on making it more difficult for workers to exercise their right to strike), it could have taken alternative steps. For example, it could have legislated to allow for ballots to be conducted online or via text-message, instead of by postal ballot. Since 1993, the TULRCA has stipulated that pre-strike ballots must be conducted by way of a postal vote, administered in accordance with detailed rules under the supervision of an independent scrutineer. When the Bill was introduced and, as it made its way through Parliament, the Government was adamant that this aspect of the law would not be changed. Very late in the day, a concession was made, reportedly in exchange for trade union support for the campaign to remain in the European Union.  As finally enacted, the Trade Union Act does not yet relax the rules on the form that the ballot must take, but paves the way for possible change, providing in section 4 for an independent review on the delivery of secure methods of electronic balloting, and for the use of pilot schemes. The section stipulates that the review shall be commissioned within six months of the passing of the Act. It directs the Secretary of State to consider the report, and in preparing her response (to be published and laid before each House of Parliament) to ‘consult relevant organisations including professionals from expert associations to seek their advice and recommendations’. It does not commit the Government to introduce e-balloting, however, in the House of Commons, Business Minister Nick Boles gave a ‘verbal guarantee’ that e-balloting would be rolled-out provided that the review found it to be safe.
The use of thresholds in pre-strike ballots is controversial because it creates an assumption that abstainers are against industrial action, which is far from always the case.  Over and above that, it gives greater weight to abstentions than to no votes, since a sufficient number of the former will serve to invalid the ballot.  In light of these last points, one cannot help but wonder whether the true motivation for creating higher thresholds might be a wish, on the part of Government, to make it more difficult for trade unions to mount campaigns of industrial action. The Government is committed to a further wave of deep public spending cuts affecting pay, working conditions and jobs, and would, like, perhaps, to minimize the scale of the opposition that it will face in meeting that commitment.
~ Dr Ruth Dukes
- R Darlington and J Dobson, The Conservative Government’s Proposed Strike Ballot Thresholds: the Challenge to Trade Unions (IER August 2015)
- BBC News, 7 Sept 2014
- B. Gernigon, A. Odero and H. Guido, ILO Principles Concerning the Right to Strike (Geneva, 2000), 25
- ILO Digest, para. 585
- ILO Digest paras 604 – 14, 596
- See e.g. Rowena Mason, ‘Eurosceptics question motives for trade union bill climbdown’ The Guardian, 27 April, 2016
- Darlington and Dobson
- N Stanley, Touchstone Blog, July 2014 (http://touchstoneblog.org.uk/2014/07/tory-ballots-where-abstentions-count-more-than-votes/)