January’s Trades Council meeting agreed a response to be submitted in response to the Government’s “consultation” on “Hiring agency staff to cover industrial action”.
We are by no means convinced that those in power give anything but the most cursory attention to what they receive during these exercises, but they do at least provoke us into articulating our views on the matters raised and you can never rule out the possibility that a sufficiently widespread negative response may, at least, lead to a degree of reconsideration.
On this matter itself, indeed, the Government did run a similar exercise in 2015 and found such a lack of enthusiasm, even on the employers’ side, that the proposal was left in abeyance.
What the Government intends to do is repeal regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which provides that:
“an employment business shall not introduce or supply a work-seeker to a hirer to perform—
(a)the duties normally performed by a worker who is taking part in a strike or other industrial action (“the first worker”), or
(b)the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker”.
They first returned their attention to this question in the Summer of 2022, when they published the “Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022”.
Kwasi Kwarteng, who was Secretary of State for Business, Energy and Industrial Strategy (Secretary of State) at the time, more or less admitted that this was an impulsive reaction to the “cost of living” strikes: “In light of militant trade union action threatening to bring vital public services to a standstill, we have moved at speed to repeal these burdensome,1970s – style restrictions”. His action was successfully challenged by Trade Unions who won a case in the High Court in 2023. The presiding judge criticised ministers for acting in a way that was “unfair, unlawful and irrational”.
But despite this rebuke – and strong opposition from unions and employers – the government has resurrected the idea again.
Even the Recruitment and Employment Confederation (REC), which represents suppliers of agency workers, has called the announcement of this new consultation “a disappointment, given the scale of opposition from employers and workers to the previous proposal”.
If the government goes ahead with this measure we feel it risks exposing Agency workers to pressure to work as strike-breakers, all workers to a dilution of their right to take effective strike action and service-users to unsafe practices.
The International Labour Organisation (ILO) Private Employment Agencies Recommendation, 1997 (No. 188) (discussed and adopted at the 85th Session of the International Labour Conference) clearly says (para. 6) that “Private employment agencies should not make workers available to a user enterprise to replace workers of that enterprise who are on strike”. Where internationally respected guidance is so specific Britain should not be so out of step with it. As “Staffing Industry Analysis” dryly commented in its “Daily News” on 21/06/2022 “The provision of temporary agency workers to replace strikers has long been illegal in most developed economies, as well as many undeveloped ones”.
You can see the full text of our submission here: