September’s Trades Council meeting received a report on the progress being made by the Government in implementing the Strikes (Minimum Service Levels) Act 2023.
For the provisions of the Act to take effect there will need to be a proclamation, by regulation, of what “Minimum Service Levels” will mean in specific sectors, plus publication of a Code of Practice outlining the steps any affected Trade Unions should take to comply with these to avoid the normal legal protections being removed from any relevant industrial action.
“Consultations” have already been undertaken in respect of “Fire and Rescue”, “Ambulance” and “Rail”, and a further “consultation” has been opened in respect of “Hospital Services”. There is also a “consultation” on the “Code of Practice outlining steps a trade union should take to comply with the Strikes (Minimum Service Levels) Act 2023” (which will close on the 6thOctober).
So far as we are aware, Trade Unions have decided not to participate in these consultations, having regards to the general principle of “non-compliance” with the Act. This is certainly the position we adopted, discussion of the arrangements for forced labour striking us as being alien to British and Industrial Relations values.
The consultations do, nevertheless, have the virtue of further exposing Government thinking on the matter.
The International Labour Organisation has said 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”. Any Minimum Service Level “must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear”.
It is clear to us that what our Government is intending goes far beyond these definitions.
In the first place, they do not appear to offer any grounds for applying any Minimum Staffing Level to short duration strikes affecting the rail industry. When examining concrete cases, the ILO supervisory bodies have considered that it should be possible for strikes to be organized by workers in both the public and private sectors in numerous services, including the following: the banking sector, railways, transport services and public transport, air transport services and civil aviation, teachers and the public education service. Short disruptions in these areas are inconvenient from the point of view of the public, but do not pose any existential threat to the state or to individuals.
Secondly, it is clear that the Government wishes to impose a reduced service, rather than a minimum service. One “option” considered in the “Fire” regulations, for instance, would involve setting “the number of fire appliances (or a percentage of normal appliance capacity) required to deliver essential services, which would then require a minimum level of firefighters to crew those as well as necessary control room staff” – with nothing said as to how near or far this would be from a “business as usual” level. One option considered for “Rail” is an alternative “timetable” “adjusted to an appropriate minimum service level which would be set based on evidence from consultation, such as corridors that are used by high volumes of people to get to work or access key services”.
The mechanism envisaged by the Act is that it will be the Government which defines the “Minimum Service Levels”, but the employers involved who have the right to interpret what these imply in respect of the numbers and grades of workers required to deliver them.
It is the employers who are then empowered to give “work notices” to the Trade Unions, identifying “the persons required to work during the strike” and “the work required to be carried out by them”.
If things come to it, it will be interesting to see how much detail they will be expected to give regarding the “work required to be carried out”, presuming that any workers who do turn in under compulsion will do so with the intention of carrying out that most effective means of industrial sabotage – actually following management instructions.
It is also interesting to note that employers exercising this power of compulsion don’t appear to face any consequences should they get the numbers wrong.
But this is to digress. What the Act and the draft Code of Practice envisage is that once a Trade Union has been given the “work notices” it then becomes its responsibility to identify which persons specified are actually its members and then issue each of those members with an individual communication or notice to advise them not to strike during the periods in which they are required by the work notice to work, as well as to encourage them to comply with the work notice. The Union does not appear to be obliged to tell the employer which of the persons specified are not members or take any action in relation to these.
The draft Code says that the notice should tell each of these members that “that the member should receive from the employer (either in the same or in separate communications from the employer): i. a notice of the work that the member is required to carry out during the strike under the notice given to the union, and ii. a statement that the member is an identified worker in relation to the strike under section 238A of the Act and must comply with the notice given to the union”.
The Act itself seems to be silent on the matter of employer/employee communication, but the draft Code says the members targeted: “should receive from the employer (either in the same or in separate communications from the employer): i. notice of the work that they are required to carry out during the strike under the notice given to the union, and ii. a statement that they are identified workers in relation to the strike under section 238A of the Act and must comply with the notice given to the union……….if those members receive both of those from the employer, they must carry out the work during the strike or lose the protection against dismissal that is provided by section 238A of the Act”.
So, the penalty an individual worker faces for not complying with a “work notice” is that their dismissal would not be regarded by a Tribunal as “unfair”. The penalty a Trade Union faces for not complying with the steps outlined is that its strike action would not be protected from claims of damages by the affected employers – ie. we are back to the early days of the twentieth century.
The law makes 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”.
The ESPU (European Public Service Union) has pointed out that the ability of public sector workers to take effective industrial action is under threat in various ways across a number of European countries: The right to strike in the public sector in Europe | EPSU – “The right to strike is fundamental for trade unions in underpinning their ability to organise, collectively bargain and represent their members. However, this right has often been restricted for public service workers and in recent years has come under attack”.
Writing in “The Jacobin” in December 2018, Alex Gourevich argued that the right to strike is not just a freedom in itself, but one of the few ways workers have to expand the sphere of their freedoms: “A higher wage expands workers’ freedom of choice. Expanded labour rights increase workers’ collective freedom to influence the terms of employment. Whatever the concrete set of issues, workers’ strike demands are always also a demand for control over portions of one’s life that they do not yet enjoy”.
“Put differently, the right to strike has both an intrinsic and instrumental relation to freedom. It has intrinsic value as an (at least implicit) demand for self-emancipation. And it has instrumental value insofar as the strike is an effective means for resisting the oppressiveness of a class society and achieving new freedoms……..But if all this is correct, and the right to strike is something that we should defend, then it also has to be meaningful. The right loses its connection to workers’ freedom if they have little chance of exercising it effectively. Otherwise they’re simply engaging in a symbolic act of defiance — laudable, perhaps, but not a tangible means of fighting oppression.”
Concern for the welfare of workers and how they are impacted by the imbalance of bargaining power between themselves and employers leads to the conclusion that industrial action is one of the few effective tools we have to counterbalance the disparity. Jorge Andre Leyton Garcia (in “The Right to Strike as a Fundamental Human Right” <Revista Chilena de Dereche – vol44 – 2017>) points out that the right to strike has been widely accepted as a fundamental human right and essential element of Freedom of Association, though not one free of contested interpretations.
It seems to us that a key objective of our Government is really quite prosaic and short-term. It wants to counter significant public appreciation that current public sector strikes are a response to worsening working conditions and reductions in real earnings by re-framing them as an issue of “legality”. By making strike activities “illegal” it wants to put focus on “the rule of law”, rather than on economic justice and living standards. But following this narrow ambition tempts them into trashing fundamental rights simply because they lead to inconvenience and people being unwilling to live under their thumb.
The Trades Union Congress has voted to:
- build coalitions to campaign for non-compliance and against further restrictive trade union legislation;
- build an appropriate industrial response to defend workers’ right to strike;
- implement a campaign alongside others defending the fundamental rights of working people to resist MSLs;
- legally challenge the Minimum Service Levels (MSLs) legislation;
- coordinate demands from affiliates and call on employers, devolved governments, mayors, fire authorities, local authorities and other public bodies to refuse to implement the MSLs legislation and issue work notices and work with the trade union movement to render MSLs inoperable;
- support demonstrations and hold a national march opposing the legislation and calling for repeal of the anti-union laws;
- mobilise support for any affiliate seeking assistance, whose union and members are sanctioned for non-compliance; and
- organise a Special Congress, size to be determined, to explore options for non-compliance and resistance.
Our legal system operates on the presumption that whilst Parliament has the power to legislate in a way that infringes fundamental rights, it can be relied upon not to do so. But, as Anne Ramberg put it in “The Rule of Law: perspectives from around the globe”, “The Rule of Law requires many things. It requires adequate legislation duly adopted. There is a requirement as to form. But there is also a qualitative threshold. The law must properly incorporate societal values including the demands of human rights and international humanitarian law”. At the end of the day, it is up to the public to define and defend the fundamental values which even legislators should not transgress. The campaign against the Strikes (Minimum Service Levels) Act 2023 will be one involving non-compliance with the law precisely because it will be one to defend an element important to preserving the Rule of Law – the necessity of protecting our human rights.