The Trades Union Congress (TUC) has noted that “UK workers are currently enduring the longest pay squeeze in more than 200 years – with average pay still worth £85 a month less than in 2008. And in the public sector average pay is down by £204 a month in real terms compared to 2008″.
We have had over a decade of the “pay restraint” those in power regularly advocate, and it has left many people now struggling to pay the most basic bills.
The severity of the inflationary spike in 2022, coming after a period in which real earnings had at least begun to climb back to 2008 levels, tipped workers across the economy into taking industrial action to try and protect their living standards.
This is the point at which the British Government has chosen to propose legislation to undermine the impact of strikes in some sectors. They want to pass a law that will allow employers to dictate to individuals that they must work even when they are in dispute, with the penalty for dissent being that they might be sacked – or their Union’s funds left without the protections that were settled early in the last century.
The “Strikes (Minimum Service Levels) Bill” proposes legislation that will apply in several different areas of employment across both private and public sectors – (a) health services; (b) fire and rescue services; (c) education services; (d) transport services; (e) decommissioning of nuclear installations and management of radioactive waste and spent fuel; and (f) border security.
The envisaged process is as follows:
- The “Secretary of State” can determine a minimum service level for any activity in these sectors when faced with industrial action.
- It is then up to the employers involved to interpret how to implement this.
- These employers are given the power to Issue “work notices” to the Trade Unions involved, which
- a) identify the persons required to work during a strike in order to secure that the levels of service under the minimum service regulations are provided, and (b) specify the work required to be carried out by them during the strike in order to secure that those levels of service are provided.
- It is then up to each Union to take “reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice”.
- The penalty for non-compliance is that the normal protections around strike action no longer apply. The Trade Union can be sued by the employer for losses due to a strike, and dissident workers “fairly” dismissed.
The Government has claimed that the ILO (International Labour Organisation) sanctions minimum service level legislation, which is true up to a point. What they have tabled, however, goes well beyond anything the ILO speaks about and would be in clear breach of its guidance.
The scope of the proposals covers both areas where Unions themselves have acknowledged a need for minimum cover and areas where there is really no argument for it at all. What if, say, all rail services were to be shut down in a strike? Where exactly is the problem with that, other than from the point of view of inconvenience? The ILO, through decisions of the Committee on Freedom of Association, makes it clear that the “establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance”. It also says that a “minimum” should clearly be a “minimum”: “Minimum service should be restricted to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service, while ensuring that the scope of the minimum service does not render the strike ineffective”.
Tonia Novitzhas commented in an article for “UK in a Changing Europe” (Minimum service levels legislation: in conflict with strikers and with Europe): “The failure to limit these sectors to ‘essential services’ recognised in the ILO amounts to a significant breach of Article 11 of the ECHR. This follows from the judgment of the European Court of Human Rights (ECtHR) in Ognevenko. This case is cited by the government in its Memorandum on ECHR to suggest that minimum service levels are welcomed by the ILO and in the Council of Europe.
In fact, this case was a challenge to Russian treatment of rail transport as an essential service. The ECtHR made clear that this should only be possible: (1) for public servants exercising authority in the name of the state; (2) for services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (3) in the event of an acute national emergency. That view is in line with the principles established on freedom of association by ILO supervisory bodies which scrutinise implementation of labour standards set by that Organization.
If the Russian government wished to prevent strikes in the rail transport sector, it was necessary to give reasons explaining how these criteria were met. Minimum service levels were considered appropriate by the ECtHR as an alternative to a ban on strikes in a given sector, but only if those three ILO criteria were satisfied. Notably, France does enable minimum service levels but not in public transport”.
The British Government’s proposals make no provision for anyone to contest the reasonableness or practicality of either the Secretary of State’s initial service level determination or of any “work notice”. The ILO, on the other hand, emphasises the desirability that any outcomes should arise from discussions and be subject to some form of “independent” arbitration: “Negotiations over the minimum service should be ideally held prior to a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. Any disagreement should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned”.
“Unilateral determination by the employer of minimum service, if negotiation has failed, is not in conformity with the principles of freedom of association. Any disagreement in this respect should be settled by an independent body having the confidence of the parties concerned”.
We don’t know how minimum service levels will be calculated or expressed. We don’t know how it will be possible for employers to translate service levels into specific work notices addressed to individual employees. The Government itself has commented that: “The detail required will be significant in order to reflect the many different circumstances that are applicable even in one relevant service” – and it is unclear exactly how precise employers will need to be in specifying “the work required to be carried out”.
The proposed legislation would grant employers the opportunity to use their power to compel work attendance as an additional means of disrupting Trade Union organisation and morale. As Ioannis Katsaroumpas, (‘The Strikes (Minimum Service) Bill: A Blatant Violation of International Labour Standards’, UK Labour Law Blog, 18 January 2023, available at https://uklabourlawblog.com/) points out, the Bill “provides no guidance or criteria as to how the employer would determine those workers subject to a duty to work under a ‘work notice’. It only states that they should not be included because of union membership. This is a very weak safeguard that provides a wide scope for abuse by an employer. What if an employer decides to select workers based on their participation in previous industrial action(s) or picket lines or based on their intention to participate in the industrial action or picket lines subject to the minimum services? Or what if an employer decides to select union activists or those leading previous strikes in order to reduce their effectiveness by moving them from the picket lines to work? All these cases would not be directly covered by this safeguard because the selection will still not be based on grounds of union membership”.
Professor Ruth Dukes (Professor of Labour Law, University of Glasgow) comments on the University of Glasgow School of Law Blog: “That employers should be awarded state-backed power, in this way, to force named individuals to work is quite astounding and arguably at odds with the fundamental principle that the employment relation is a contractual and, therefore, consensual one. This is a principle recognised, as Keith Ewing and Lord Hendy point out, in section 236 of the Trade Union and Labour Relations (Consolidation) Act, which provides that no court can ‘compel an employee to do any work or attend at any place for the doing of any work’. It is a principle that has otherwise been upheld in UK law since the repeal of the Essential Work Orders that were in force, exceptionally, during the second world war”.
The full potential impact of the Bill can only be understood by placing it in the context of other national legislation around industrial action. Ioannis Katsaroumpas (as above) notes: “The Strikes (Minimum Service Levels) Bill is another legislative episode in the never-ending ‘death by a thousand cuts’ of trade unions’ ability to mount an effective lawful industrial action. As it is well-known, industrial action in the UK is subject to a wide range of legal restrictions that work cumulatively to make less likely its occurrence (such as stringent ballot thresholds or wide scope for injunctions) or constrain its effectiveness (such as long notice periods, short ballot mandates and the permissible use of agency workers as strike replacements)”.
The Conservative Party website quotes Rishi Sunak as saying “Freedom and openness have always been the most powerful forces for progress”. But our European contemporaries pity our lack of fundamental liberties. Responding to the British Government’s intentions European Trade Union Confederation General Secretary Esther Lynch said: “The UK already has among the most draconian restrictions on the right to strike in Europe, and the UK government’s plans would push it even further away from normal, democratic practice across Europe……There is no comparison to be made between (the) system of social dialogue, and the political conflict the UK Government is stoking over public sector pay”.
Where public safety might actually be at risk, British Trade Unions have always provided emergency cover during industrial action – and they are the best people to do this, having an interest and investment in making that cover effective. The bottom line, though, is that we are workers, not conscripts or slaves. This Bill is an affront to liberty and democracy, and nothing more than a blatant attempt to use the power of the state to frustrate workers’ efforts simply not to continue getting poorer.