Heading in the Wrong Direction

1. Introduction

‘Global Britain’ is the ambitious term used by the UK Government for describing Britain’s place in the world after Brexit. Attempts at definition have focused on its critical role as a defender of liberal democracy against global authoritarianism. This includes respect for universal human rights (p. 20), deep commitment to multilateralism (page 44) and compliance with international rules and rulings (p. 29).

The narrative of the UK as a democratic crusader has an obvious blind-spot: the widening gap between its law on industrial action and ILO core labour standards on freedom of association. While not explicitly protected under Conventions No. 87 and No. 98, the ILO considers the right to strike an ‘essential means through which workers and their organizations may promote and defend their economic and social interests’ (para. 753)  and an ‘intrinsic corollary to the right to organize protected by Convention No. 87’ (para. 754). Beyond its systemic importance for effective collective bargaining, the right to strike is also a fundamental civil liberty that grants workers a modicum of power in voicing their dissent against policies that affect them. History shows that major restrictions on the right to strike are often the ‘canary in the coal-mine’ of authoritarianism – an authoritarian sign to be ignored only at each society’s peril.

Since 1980, numerous statutory interventions by Conservative Governments have established a web of stringent procedural and substantive conditions that must be met for industrial action to be lawful. Pursuing a strategy of deliberate non-compliance with ILO standards, successive Governments have ignored multiple criticisms by ILO supervisory bodies. These recently include criticisms of the prohibition of secondary industrial action, the notice requirements and minimum turnout thresholds for strike ballots (pp. 153-154) and the application of these thresholds to the education and transport sectors (p. 153).

An approach consistent with the ‘Global Britain’ ambition would prioritise closing this gap. However, recent developments signal a movement in the opposite direction. The UK Government recently repealed the prohibition on the use of agency workers as strike replacements. This measure was taken in response to the repeated railway strikes against below-inflation pay offers and in anticipation of a growing number of pay strikes in many sectors in the forthcoming period. In addition, the current Prime Minister Liz Truss announced during the Conservative leadership elections her intention to swiftly enact several further restrictions on industrial action within the first 30 days of her premiership. These include the:

Are these measures compatible with international labour standards on freedom of association as interpreted by its two main supervisory bodies, namely the tripartite Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR)? To answer this question, it is necessary to discuss the ILO position for each measure separately before considering the ILO norms on their cumulative effect.

i) The Use of Agency Workers as Strike Replacements

On 21 July 2022, almost imperceptibly and during the Conservative leadership election, the UK Government repealed the regulation previously prohibiting businesses from supplying agency workers for ‘duties that are usually performed by a worker on strike’, which was backed by criminal sanctions. This was a revival of a proposal for abolition contained in the 2015 Conservative Manifesto describing the prohibition as ‘nonsensical’ (p. 19), which was dropped at the time after a public consultation. While the current repeal was presented as a response to the transport strikes in view of reducing their impact on transport services, its scope is universal and not confined to the transport sector or public services. The measure was justified on the grounds that industrial action ‘must not come at the cost of unreasonable disruption to important services for members of the public or unreasonable cost to businesses at a time when both are struggling with the rising cost of living and doing business’ (para. 2.4). It was framed in a preventative manner to ensure that ‘any future strikes will cause even less disruption and allow adaptable, flexible, fully skilled staff to continue working throughout’.

This measure is not in conformity with ILO standards. Both supervisory bodies have been critical of all forms of strike replacements. They consider them to be a ‘serious violation of freedom of association’(CFA; para.  918) and a practice that ‘seriously impairs the right to strike and affects the free exercise of trade union rights’ (CEACR; para. 175). The prohibition on the use of agency workers as strike replacements is also contained in ILO Recommendation No. 188 (Art. 6). While for the UK Government the prohibition is ‘nonsensical’, for the ILO it performs a systemic function in preserving the efficiency of industrial action that could otherwise be undermined or neutralised by the employer using replacement strikers. In addition, it protects worker solidarity along with agency workers, as the precarious nature of their employment places them at a greater risk of feeling compelled to accept such an assignment for fear of losing future assignments.

ILO standards permit strike replacements strictly only in respect of ‘essential services’ (para. 918),a position reiterated by the CEACR in a comment on the UK’s proposed repeal of the prohibition in 2016 (p. 154).This term is narrower than the ‘important public services’ under the Trade Union Act 2016 which encompasses health, education of those under 17, fire, transport, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security.

‘Essential services’ cover only those sectors where ‘the interruption of which would endanger the life, personal safety or health of the whole or part of the population’ (para. 830). While the relevant assessment is context-specific to each country, the CFA has produced a list of examples of sectors that may be considered essential services. These include the hospital sector, electricity and water supply services, telephone services, police, and firefighting (para. 840). Conversely, among those sectors which cannot be deemed essential are the transport, rail, education and postal services sectors (para. 842). Hence, out of the ‘important public services’ recognised by the UK, the education and transport sectors should not be included. To the contrary, it was strikes within the transport sector that have prompted the current Government to repeal the prohibition on the use of agency workers as strike replacements.

Besides the substantive incompatibility, the repeal raises concerns over its compatibility with ILO standards on procedural grounds. These relate to the CFA recommendations that consultations on measures related to the scope and exercise of trade union rights should be ‘in-depth’ (para. 1542) and ‘full, frank and detailed’ (para. 1545).

Indeed, no consultation took place in the period before the repeal. And while the Government could invoke the 2015 consultation as satisfying this condition, it is unlikely to succeed. Not only the consultation is outdated (occurring seven years ago) but it would also be a stretch to claim that a two-month consultation in 2015 without any systematic involvement of social partners (representatives of employers and workers) is ‘in-depth’, ‘full’ and ‘detailed’.

Twelve unions have already launched a judicial review of the repeal on the grounds, among others, of a lack of consultation and breach of human rights and ILO standards. It is also notable that, in a rare instance of consensus among social partners, the measure has been subject to strong criticism by the business community. Neil Carberry (the CEO of the Recruitment & Employment Confederation and a former Low Pay Commissioner) categorically denied that it is a ‘pro-business move’ while also noting that ‘it will also not provide the workers that the government wants, and it puts agencies and agency workers in a very difficult position, with potential health and safety and reputational risks to consider’. While ILO standards do not require states follow this consensus, they recommend that reforms affecting trade union rights only results from consultations with ‘the most representative organizations, in order to find, as far as possible, shared solutions (para. 1542)’. At the very minimum, this consensus underscores the need for a more effective consultation that systematically take into account the opposing views of different social partners. It is also obvious that the Government did not show any interest in seeking ‘shared solutions’ with the social partners.

ii) Minimum Services in ‘Critical National Infrastructure’

The proposed requirement of ‘minimum services’ being maintained during strikes affecting ‘critical national infrastructure’ would be a major reform of UK industrial action law, which traditionally lacks direct restrictions on the number of striking workers. This measure follows the 2019 Conservative Party Manifesto commitment to introduce a minimum services requirement during transport strikes as it is not ‘fair to let the trade unions undermine the livelihoods of others’ (p. 27). However, under Liz Truss’ proposal its application is extended beyond transport.

ILO standards do not prohibit the use of minimum services requirements but provide a framework of conditions for their operation. Regarding the scope of their permissible application, minimum services are allowed according to the CFA (para 866)in the following cases:

1. Essential public services in the strict sense of the term;
2. Strikes whose ‘extent and duration’ might be such as to result in an acute national crisis endangering the normal living conditions of the population; or
3. In ‘public services of fundamental importance’

The essential services category was discussed above. As for the second category of ‘acute national crisis’, this applies in exceptional cases of crisis. In another context, the concept of ‘acute national crisis’ was interpreted by the CEACR as referring to ‘genuine crisis situations, such as those arising as a result of a serious conflict, insurrection or natural, sanitary or humanitarian disaster, in which the normal conditions for the functioning of society are absent’ (para. 140). One could potentially envisage, for example, a prolonged strike of refuse collection workers which is not an essential service sector as falling under this category if leading to a ‘sanitary disaster’.

However, the category of ‘public services of fundamental importance’ is much broader and covers sectors that are not essential services. The CFA also uses the similar term ‘public utility’ (for example Nigeria, Case No 2432 Nigeria, para. 1024). This category could potentially accommodate sectors of ‘critical national infrastructure’ as proposed by Liz Truss. The CFA has accepted the following non-essential service sectors as ones where minimum services could be justified: ferry services and ports (paras. 886-888), railway activities (para. 889) the transportation of passengers and commercial goods (para. 893), banking services (para. 895), the petroleum sector (para. 895), and the education sector (para. 899). In a specific comment on the UK’s list of important public services, the CEACR has confirmed that the education sector, along with railway and transport sectors, could be subject to minimum services even though they are not essential services (p. 153). As a result, in short, all ‘important public service’ sectors under the Trade Union Act 2016 could fit this category.

ILO standards, though, establish a framework of conditions for the use of minimum services.

The first concerns the need to preserve the effectiveness of industrial action. The CFA states that the extent of the minimum services should ‘not render the strike ineffective’ (para. 874) or call it into question (para. 867). It should be restricted ‘to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service’ (para. 874; emphasis added) or to ‘ensuring that users’ basic needs are met or that facilities operate safely or without interruption’ (para. 867). While there exists an element of flexibility in the interpretation of these standards, it is clear that minimum services requirements should not be set at such a high level as to make the strike ineffective or above the level required for covering basic needs.

Secondly, ILO standards attach special significance to social dialogue and the involvement of both parties in the negotiation of minimum services. They seem to assign priority to a negotiated settlement between the parties (para. 878). The standards require that ‘both sides must be able to participate in determining the minimum services’ (para. 882). This is justified on two grounds. First, to allow the exchange of views on what is strictly necessary. Second, it is also to make sure that they do not ‘result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services’ (para. 881). Unilateral determination in case of the failure of bilateral negotiations is not permitted (para. 883). And per ILO standards, it is preferable that the negotiations on the definition and organization of these minima should be held before the dispute ‘so that all parties can examine the matters with the necessary full frankness and objectivity’ (para. 875).

Liz Truss’ suggestion that the minimum services requirement will be ‘negotiated in each industry’ seems to hint toward a social dialogue mechanism but it is unclear in which form. And the absence of effective social dialogue institutions at a sectoral level in the UK makes this likely to be even more difficult. Here, it should also be noted that a negotiated minimum service would be the first instance in the UK that sectoral social dialogue could be used as a direct mechanism for fixing a condition for the legality of industrial action – that is, if the Parliament opts for sanctioning the non-compliance with the minimum services requirement with the loss of statutory immunity that protects trade unions and workers from civil legal action following strikes. This, in turn, would raise the more fundamental question of enforceability if these terms were included in collective agreements whose terms are usually not legally binding.

The third set of conditions concern the independence of the dispute resolution process. Any disagreements should be resolved by a body ‘having the confidence of the parties concerned’ (para. 883) and through a definitive ruling ‘only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action’ (para. 885). The Minister or the Government should not be involved in resolving disagreements over the minimum services requirement. This will most likely be the task of Employment Tribunals. A higher degree of juridification would be an inevitable outcome as the tribunals or higher courts would have to engage with delicate interpretative questions as to the required minimum services.

iii) Raise of the minimum threshold of support of eligible union members required in strike ballots in important public services from 40% to 50%

The next proposal concerns the raising of the requirement of 40% of all eligible union members voting in favour of industrial action in ‘important public services’ to 50%. While this threshold could be acceptable in respect of essential services (in the narrow sense of the term), its application to ‘important public services’ will widen the gap with ILO standards for the education and transport sectors.  The CFA has already found a requirement of 50% support from eligible workers as ‘excessive’ and one that ‘could excessively hinder the possibility of carrying out a strike, particularly in large enterprises’ (para. 806) while noting that a requirement for an absolute majority ‘involves the risk of seriously limiting the right to strike’ (para. 807).  The CEACR also insists that account should be ‘taken only of votes cast’ (para. 147).

In a previous comment on the 40% requirement of support from eligible workers under the Trade Union Act 2016 in important public services, the CEACR expressed its concern that it will touch upon the education and transport sectors and that it ‘is likely to severely impede the rights of these workers and their organizations to organize their activities in furtherance and defence of their occupational interests without interference’ (p.153).

iv) Notice Period and Cooling-Off

Notice periods and cooling-off periods for industrial action are means of delaying when the industrial action can begin and thus interfering with the union’s ability to choose the timing of industrial action. Liz Truss’ proposals involve the extension of the minimum notice periods for the beginning of industrial action (from two to four weeks) and the establishment of a cooling-off period of six-months after a successful ballot so that unions cannot strike as many times as they wish.

The proposal to extend the minimum notice for the beginning of industrial action from two (which can be reduced to 1 week if the parties agree) to four weeks is problematic in respect of ILO standards. Notice periods are acceptable for the ILO only if they are ‘reasonable’ (para. 799). There is no hard-and-fast rule as to the duration. The CFA has considered a 48-hour notice to be reasonable (para. 800) while stating that a 20-day period ‘in services of social or public interest does not undermine the principles of freedom of association’ (para. 801). The CEACR also stresses that ‘advance notice should not be an additional obstacle to bargaining’ (para. 145) and an advance notice requirement of 60 days is ‘excessive’ (para. 145). However, a general four-week notice period is hard to reconcile with ‘reasonableness’. It obviously exceeds the minimal requirements of publicity to enable preparation by the employer and communication to the public and is intended to hamper the effectiveness of industrial action and potentially allow time for the employer to use agency workers. Here, it is important to note that the CEACR already in its examination of the 40% threshold of support of eligible union members for a successful ballot in important public services (under the Trade Union Act 2016) has stated:

‘…with concern that the Government does not consider it necessary to carry out a review of sections 8 and 9 of the Act as it is satisfied that the measures in place relating to 14 days’ notice to be given to employers of industrial action are reasonable, proportionate and based on a balanced approach’.

Since this comment was for a two-week notice period, a fortiori it means that a four-week notice period would further widen the gap with ILO standards.

Similarly, the compatibility of the cooling-off period with ILO standards is dubious. The CEACR accepts the legitimacy of cooling-off periods but only ‘as a stage designed to encourage the parties to engage in final negotiations before resorting to strike action’ in which case they ‘may be seen as measures taken to encourage and promote the development of voluntary bargaining’ (para. 145).  But, as with notice periods, they should not ‘pose an obstacle to ‘collective bargaining’ (para. 145). Considering the Government’s rationale behind cooling-off period as to make strikes more difficult and not to promote conciliation and mediation mechanisms, it is unlikely that they would satisfy ILO standards. The measure is even more problematic in light of the six-month mandate for industrial action which is incompatible with the CEACR position that unions ‘should be able to call a strike for an indefinite period if they so wish’ (para. 146).

v) Cumulative Effect

The general absence of a prohibition on the use of agency workers as strike replacements, the 50% minimum threshold of support from eligible union members for successful strike ballots in important public services, and the universal increase of notice periods from two to four months are measures that are manifestly incompatible with ILO standards. Whereas the ILO does not prohibit minimum services requirement as such if they are established in accordance with the prescribed conditions and a cooling-off period if used as a stage to facilitate the dispute resolution, it is important to also assess their cumulative effect. This is essential since even an acceptable measure on its own could, however, raise concerns over its compatibility with ILO standards vis-à-vis its cumulative effect with other existing restrictions.

The CFA states that ‘the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations’ (para. 789). In its discussion regarding the Trade Union Act 2016, the CEACR adopted a cumulative approach by noting ‘the expiration of the ballot mandate, coupled with the extensive notice requirements [at that time 2 weeks] and the current context of a postal ballot, were likely to hinder the capacity of workers’ organizations to exercise their activities free from interference’. These measures if enacted would have the cumulative effect of a stronger substantive limitation on industrial action. For example, the lengthening of the notice period, the introduction of a cooling-off period in conjunction with the six-month mandate would severely restrict the industrial action by limiting the amount of strikes following a given ballot.  Moreover, the four-week notice period would give more time to employers to hire agency workers as strike replacements. With regards to the ballot, the 50% threshold of support of eligible union members is even more difficult to achieve because of the mandatory requirement for a postal ballot and the Government’s refusal to permit digital ballots (as used in the Conservative and Labour Party leadership elections).  On top of all these restrictions, the use of minimum services requirements would limit even further the effectiveness of industrial action.

The Government does not hide that the aim of these measures is to restrict the effectiveness of industrial action. It is to let ‘honest, hardworking people to get on with their lives’ (former Business Secretary Kwasi Kwarteng) and ‘make sure that militant action from trade unions can no longer cripple the vital services that hard-working people rely on’ (Liz Truss). This is relevant to assessing the compatibility of these measures with ILO standards as the declared purpose of the Government is to impose further substantive restrictions on the right to strike. Taken together, these measures would impose a further substantial limitation on industrial action and thus are problematic from the perspective of ILO standards. The assessment of the impact of the proposed minimum services requirement would be different if it was the sole restriction, or if it was imposed in exchange for the loosening of other restrictions – but this is not the case. Should these measures be enacted, the UK would have one of the most restrictive frameworks for industrial action in the world.

3. Conclusions

With the repeal of the ban on using agency workers as strike replacements already in force, these measures risk further widening the substantial gap between UK law on industrial action from ILO standards. And while ILO standards are often routinely ignored by certain governments, they are still legally binding international law obligations, including for the UK (as it has ratified Conventions No. 87 and No. 98). Moreover, as they relate to the core labour right of freedom of association, they form part of the obligations under the UK-EU Trade & Co-Operation Agreement. They are also part of the duties under the recently concluded trade agreements with Australia (Art. 21.4) and New Zealand (Art. 23.5) (but on the condition that their violation is committed to ‘encourage trade or investment’). The recent EU-Korea panel decision (issued under the EU-Korea free trade agreement), finding Korea in breach of its duty to respect, promote and realise the core labour standards drew heavily on ILO and the comments of its supervisory bodies for determining the meaning of freedom of association.

In addition, the right to strike is given effective recognition in domestic law as part of Article 11 of the European Convention of Human Rights and its application through the HRA 1998. In Demir and Baykara (on collective bargaining) and Enerji Yapi-Yol Sen v Turkey judgment (on the right to strike), the ECtHR strongly relied on the ILO supervisory bodies for determining the content of the right. More recent decisions, though, have complicated this route. The RMT v UK ECtHR judgment on secondary action and the Court of Appeal judgment Mercer v Alternative Future Group Ltd & Ors on the lack of protection short of dismissal for participation in industrial action recognise a wide margin of appreciation to the Government outside of restrictions on the core or ‘inner core’ of trade activity. However, given the view of the ILO supervisory bodies of the use of strike replacements outside of essential services as a ‘serious violation’ of freedom of association (CFA; para.  918), it is hard to see how one could escape the conclusion that the lack of prohibition strikes at the ‘core’ of trade union activities.

Apart from these legal issues, the widening gap between UK law on industrial action with ILO standards is a directly pertinent matter to the nature, status, and ambition of Global Britain as a defender of democracy. The right to strike is a vital to a confident democratic society as it allows for a pluralist expression of various interests. It needs to be defended and promoted in line with international labour standards, established in an inclusive way by Governments, representatives of employers, and trade unions. A Global Britain genuinely committed to multilateralism and to consolidating its role as a defender of democracy can neither afford to ignore this blind-spot nor be tempted to restrict it for short-term gains or an ideological agenda. These restrictions send the wrong message to authoritarian regimes worldwide considering imposing similar restrictions as a means of consolidation. It also undermines UK’s human rights agenda, such as the credibility of UK’s call for the ILO to be more assertive in condemning China’s use of forced labour in the Uygur region.

Eliminating instead of widening the gap regarding the law on industrial action is vital to addressing charges of ‘double standards’ when compliance with core labour standards is requested from global partners. It can allow the UK to proudly demonstrate its commitment to the rule of law and to supporting industrial action, repressed in so many authoritarian countries. It is thus imperative that the current Conservative Government or a possible future Labour Government would start the process of engaging in good faith with the social partners and the ILO for a comprehensive review aimed at bringing its law in conformity to the ILO standards. This would be to the benefit of ‘Global Britain’ as it positions itself in the upcoming struggle against global authoritarianism, likely to define at least the next quarter of the 21^st century.

This article was first published on the UK Labour Law Blog, here.