Are Strikes Being Banned?

Minimum service levels legislation

By Pete Whitelegg

We are currently witnessing the largest wave of industrial action since the start of the Thatcher era.   The current high level of inflation, combined with real wages having stagnated for at least the past 10 years (see charts elsewhere in the magazine), with real standards of living collapsing for many, workers across the board have decided to take action. 

This also comes at a time when real investment in our public services is collapsing. It seems there is no end to the merry go round of think tanks and pressure groups publishing reports highlighting the dire state of our public services. The NHS is short of some 40,000 nurses. There are currently high vacancy rates in many sectors of the economy.

The result is a wave of strikes to arrest the decline in living standards. From rail and bus workers, post office workers to teachers and nurses, all have voted to undertake some form of industrial action. The most prominent of these workers so far have been the rail workers, mainly because of the pivotal role transport plays both socially and economically. This has enabled what is a relatively small union to focus attention on the issues. The attention the RMT has garnered during the current strikes has been greatly enhanced by a leadership with a clear message that resonated with the general public. 

The response of the government to the strikes on Britain’s railways has been somewhat predictable, in that they have attempted to portray rail workers and their actions as holding the country to ransom. Their solution to remedy the situation is to place limits on unions undertaking strike action. On the 20th of October the Government placed before Parliament the Transport Strikes (Minimum Services Level)Bill. The Bill was a manifesto pledge by the Tories in 2019.

This legislation is a direct attack on the rights of all workers to be able to defend their rights and interests. This legislation would render meaningful strike action impotent if not illegal. The Bill is expected to become law next year (2023). This follows on from the government already allowing firms to employ agency workers to cover for workers on strike and the extremely high voting thresholds the unions have to reach just to hold a strike. 

In its attempt to gain some support for the legislation they have claimed this type of legislation is already in place in some of our near neighbours, specifically France and Spain. In France the legislation allowing the state to “requisition” labour to provide minimum service levels has never been deployed. In France and Belgium only non union members can be called upon to provide minimum service levels in sectors other than transport.  France does not suffer from the same anti-trade unions laws as the UK, regarding strike organisations in particular.

The Bill will amend the Trade Union and Labour Relations (Consolidation) Act 1992 inserting new provisions relating to “specific transport services” in England, Scotland, and Wales.  Exactly what those services will be has, as yet, not been specified but will almost certainly include those services covered by the Important Public Services (Transport) Regulations 2017.

These services are defined as

  • any bus service which is a London local service as defined in section 179(1) of the Greater London Authority Act 1999(1);

      (b) passenger railway services;

      (c) civil air traffic control services provided by persons licensed by virtue of requirements in Commission Regulation (EU) 2015/340 laying down technical requirements and administrative procedures relating to air traffic controllers’ licences and certificates pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, amending Commission Implementing Regulation (EU) No 923/2012 and repealing Commission Regulation (EU) No 805/2011(2).

Under the Act transport sector employers and the unions would be subject to a new duty to take reasonable steps to agree binding minimum service levels following consultations with the relevant regulatory authorities.

Any agreement on minimum service would have to satisfy certain conditions

  • Passengers’ ability to travel to and from work, education etc
  • The impact on the economy and the environment.
  • Minimum service levels would apply for a period of 3 months.

There will, in all probability, be a more detailed list of criteria when the legislation is published.

Where the parties concerned fail to agree they may apply to the Central Arbitration Committee which will have power to set minimum service levels. I think it is clear this committee will not rule in the unions favour.

Employers will be able to serve a “work notice” on unions that have given notice of strike action.

The work notice would be required to:

  • Identify the persons required to work during the strike to maintain the agreed service levels.
  • Specify the work required by those persons identified.
  • As far as is reasonable employers would have to consult the unions on the work required.

Essentially this would entail union members, who had voted for a legally constituted strike, to break that strike.

Strike action would cease to be protected under the Trade Union and Labour Relations

(Consolidation) Act 1992 if a union is bound by a minimum service level agreement or if the union in question does not take reasonable steps to ensure those workers who have been identified in the work notice do not take part in the strike.

The employer would then be able to get an interim injunction on the union preventing it from taking strike action. A breach of any of these provisions may incur a fine of up to £1,000,000.

Those who are identified in a “work notice” as being required to work during a strike , who then take part in the strike, will lose automatic protection from unfair dismissal.

This legislation will also apply even if strike action was valid under previous legislation.

Currently this legislation only applies to the transport sector, however at various times the government has indicated it will introduce a package of trade union reforms to include all “critical” services. These may include health, education, postal services and communication.

This Bill was originally introduced by Grant Shapps, the then transport secretary. It has now been transferred to the Department of Business, Energy and Industrial Strategy, the minister in charge of that department beins none other than Grant Shapps. It seems then a reasonable assumption that the Government will now attempt to introduce this legislation to other “critical” areas of the economy.

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