Scope of proposed 40% strike threshold in Trade Union Bill confirmed: what does this mean for rail?

Despite being less than a month into 2016, we have already witnessed a series of walkouts/near stoppages in the rail sector. After strikes by Arriva employees during the first week of January, last week came the turn of the Tube workers, with proposed industrial action over the new night Tube services suspended merely days before that action was due to commence. It is perhaps not surprising therefore that the government has now clarified the application of its proposed additional 40% threshold for ballots on strike action in important public services, contained in the Trade Union Bill. In doing so, workers in passenger rail services performing “important public services” have been brought expressly in scope.

What is the 40% threshold?

The government has proposed that for strike action in key public services a threshold of 40% of support from all members eligible to vote must be passed. This is in addition to its other proposed threshold, which will apply to strike action across all sectors – that a threshold of 50% of ballot turn-out is met.

Which rail workers are in scope?

The government published (along with its announcement on 21 January 2016) its consultation response on the proposed 40% ballot threshold and draft regulations (see here). These provide clarification on which private sector workers provide “important public services” and therefore potentially fall within the requirements for a 40% ballot threshold for strike action. The regulations provide that with respect to passenger rail services, “important public services” include:

• maintenance of trains or of the network;
• signalling or controlling the operation of the network; and
• ticket sales and other services which enable trains to operate.

The proposed threshold if enacted will therefore apply to union members in rail carrying out a whole range of roles including train drivers, conductors, guards, safety staff, maintenance and signalling and electrical control staff.

In explaining the intention behind this expansion, Employment Minister, Nick Boles declared: “These new thresholds ensure the right to strike is fairly balanced with the right of people to be able to go about their daily lives and work”. The consultation response itself explains, “The national rail network enables people throughout the country to get to work and make other important journeys such as attending hospital appointments, visiting a relative who is unwell or getting to and from school. Strike action affecting railway services will have a major impact on the ability of people to work or go about their daily lives and consequently on the economy. In some cases, alternative transport options may not be available across all affected areas.”

What does this mean?

Whilst tighter ballot thresholds in rail may seem a welcome move for those responsible for keeping the trains running, it is important for the sector not to be too complacent about the impact of the proposed legislation. As many commentators have been quick to point out, the ballot in the recently suspended Tube strikes would still have passed the new thresholds. It will be important for employers to ensure they have a clear understanding of the proposed legal developments in this area and how these may play out in practice. Our earlier update on the key proposals in the Trade Union Bill is here.

The Trade Union Bill is still progressing through Parliament, with the next key date being 8 February 2016, when it is due to be examined by the House of Lords committee. However, with recent discussions regarding the impact of the Bill on Labour’s union funding and with members of the Welsh Government rallying against the provisions, it is clear that the progress of the Bill will be far from straightforward.