Authoritarian and draconian

Professor Keith Ewing and Lord Hendy KC assess the content of the government’s new Strikes (Minimum Service Levels) Bill.

The Strikes (Minimum Service Levels) Bill gives extraordinary power to the government to deny to workers what is universally regarded as a fundamental human right. It extends to six sectors – health services, fire and rescue services, education services, transport services, nuclear decommissioning, and border security – identified in the Tories’ Trade Union Act 2016. The latter required strike mandates in these services to have the support of at least 40% of those eligible to vote as well as a majority of those voting.

The purpose of the 2016 Act was clearly to stop strikes in these ‘important public services’. That hasn’t worked. So now we have even more draconian proposals, adding to the intolerable burden of restrictive laws on the right to strike.

In 1997 a former Prime Minister stated, correctly, that Britain has ‘the most restrictive laws on trade unions in the Western World’. Since then additional restrictions have been introduced, not only by the Trade Union Act 2016, but also regulations permitting agency workers to be hired to break strikes, and quadrupling the limit on damages payable by trade unions.

Clapped for their heroism during COVID – the workers in these sectors are now rewarded by offers of sub-inflationary wage increases and the threat of denial of one of their human rights. The current Bill does away with the requirement in the earlier Transport (Minimum Service Levels) Bill (now abandoned) that a minimum service level (MSL) in the event of a strike should be negotiated by agreement between trade unions and employers. Instead, the new Bill gives complete and unfettered discretion to Grant Shapps to set the MSL in each of the six services.

It is a point well made by many trade unionists that the Bill is staggering for its one-sided lack of reciprocity. For while the government proposes to impose MSLs on workers and their unions, performance levels (MSLs by another name) specified in government regulated services (eg. railways, ambulances) are frequently breached when services are running normally – without penalty. Where a strike fulfilling the requirements of the current restrictions does take place, an employer has the duty merely ‘to consult’ the relevant trade union over the number of workers and the work required to be done to fulfill the MSL set by Shapps.

Thereafter, an employer unilaterally identifies the individual workers required to operate the MSL in a daily ‘work notice’. A worker who refuses to comply will lose unfair dismissal protection if dismissed, even though the individual may not know that he or she has been identified as someone required to strike-break: there is no duty on the employer to inform workers’ individually. Remarkably the obligation is only to inform the union of the workers required to work.

The union is then required to take ‘reasonable steps’ to ensure that all members identified in the work notice comply with it.

The question is what are ‘reasonable steps’ for a trade union? Must it inform its members (but not non-members) of the contents of the ‘work notice’? Issue an instruction to relevant members that they must not strike? Instruct them to cross picket lines? Discipline or expel those who insist on striking (even though by law the union is forbidden from disciplining a member who refuses to strike).

Failure by the union to take ‘reasonable steps’ will render the strike unlawful, remove automatic unfair dismissal protection from all strikers, and expose the union to injunctions and claims for damages with the consequential risk, of contempt of court proceedings, heavy fines, and the sequestration of the union’s assets in the event of non-compliance.

Thus unions must operate as instruments of coercion over their own members, a role which unions have never previously been required to perform, and which they should not now be obliged to do.

Authoritarian in intent and draconian in nature, the Bill will do nothing to resolve the current disputes. It will simply exacerbate feelings of injustice. The experience of banning strikes during World War Two showed that if workers are deprived of the right to strike, they will find other ways to express their discontent. These will be much harder to contain, making disputes much more difficult to resolve. Rather than court international obloquy, the government would be better placed addressing the problems underpinning worker discontent. Everyone is entitled to fair pay and decent working conditions.