Strikes (Minimum Service Levels) Bill and the ILO: A Reply to Sunak

I

It is a matter of some surprise that the Prime Minister should justify the Strikes (Minimum Service Levels) Bill on the ground that minimum service levels are authorized by the ILO, and that legislation of this kind operates in France, Spain and Italy.   What he did not say is that the blank cheque which the Bill gives to Grant Shapps to determine when workers can strike is not consistent with what the ILO demands. or with the law relating to minimum service levels in other countries.

To begin with, the right to strike is protected by ILO Convention 87 (on Freedom of Association and the Right to Organise), a commitment to implement which the United Kingdom re-affirmed in the Trade and Co-operation Agreement with the EU.  That agreement and the commitments it contains was solemnly endorsed by Parliament in the European Union (Future Relationship) Act 2020, of which parliamentarians will be fully aware.

Although ILO Convention 87 has been construed to protect the right to strike, the ILO supervisory bodies – notably the Freedom of Association Committee, and the Committee of Experts respectively – accept that like other rights, in certain circumstances it is permissible for the State to impose limits on the exercise of the right.  In the case of important public services, minimum service requirements exceptionally may be introduced only under tightly controlled circumstances.

The ILO Freedom of Association Committee has expressed concern that these tightly controlled circumstances are not met by the legal position in France (the law on the statute book), while Spanish trade unions have complained to the ILO Committee of Experts that the operation of the minimum service law in Spain does not comply with ILO Convention 87 (the law in practice).  So although minimum service requirements appear to be permitted in France and Spain on limited grounds, they are not necessarily good examples to follow, either because of the substance of the law or the manner of its operation in practice.

II

In the case of France, in 2011, the ILO Freedom of Association Committee condemned French law following the requisitioning of workers during a dispute at an oil refinery during a national dispute about pensions.  This was done under the authority of laws which gave to prefectures wide powers to requisition workers to perform work required to deal with various emergency situations.   The Committee’s judgment (‘Conclusions’) was very critical of the French government saying this:

it is important that the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does 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.

Where the parties cannot agree, the view of the Freedom of Association Committee is that ‘any disagreement should be resolved by an independent body, such as the judiciary, rather than by the Government’.

Under the Strikes (Minimum Service Levels) Bill in contrast, the minimum service levels are to be determined by Grant Shapps:  there is no provision for negotiation between employers and trade unions.  When a strike does take place, the employer must consult (but is not required to negotiate) with the trade union before requisitioning workers by means of a work notice.  But having consulted, the employer is required only to ‘have regard’ to the union’s views:  it is not required to reach an agreement.

Nor is there any provision for the judicial determination of any disagreements about what would be an appropriate minimum level, to ensure that – in the words of the tripartite ILO Freedom of Association Committee – the strike does not become ‘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’.

III

Which brings us to Spain, where the ILO Committee of Experts addressed the statutory framework following concerns about its operation having been raised by Spanish trade unions.   Under the Spanish system it was claimed by the government that

the most common intervention by the government authorities is the determination of minimum services for essential services; its intervention is impartial; the establishment of these minimum services has to be undertaken on the basis of a restrictive criterion, without achieving the normal level of operation, and there must be adaptation and proportionality between the protection of the interests of the community and the restriction of the right to strike; this has to be done through a legal provision, following a hearing of the strike committee, with sufficient publicity and the reasons being given to allow those affected to defend their positions and any subsequent judicial review; in each case, the characteristics and circumstances of the strike have to be taken into account; minimum service orders can be challenged in the courts, and failure to comply with them does not render a strike unlawful.

In some respects, these seem like exemplary provisions with multiple safeguards against employer over-reach, and the Spanish government’s identification of the impartiality of the system, restrictive criteria, and proportionality, are constraints notably absent from Shapps’ Bill.

Unlike France, the problem in Spain appears to be not the content of the law but its operation, which the Spanish unions claim violates Convention 87.  The unions have complained that whatever the law may say, ‘in an important number of such essential services, the Government authorities refuse to enter into dialogue with trade unions for the determination of minimum services and instead establish them in a unilateral and abusive manner’.  In information provided separately to the European Social Rights Committee, Spanish unions have also complained:

In strikes affecting essential services for the community, when agreement on minimum services has not been attained, the government has been imposing disproportionate minimum services that, in effect, restrict the right to strike. Although they can be legally appealed, the court’s rulings, determining whether they are abusive or not, are usually delivered after the strike is over, while, in the meantime, the imposed minimum services are compulsory.

Practically all the rulings regarding legal appeals of abusive minimum services have been made in favour of trade unions. However, by then the strike was over and the right to strike had been consciously limited, since the minimum services imposed in the case of essential services for the community have been attaining 100% of the workers assigned to them, or between 80% and 100%, based on the abusive use of the legal capacity to impose incomprehensible minimum services.

Returning to the ILO Committee of Experts, the latter observed that ‘minimum services should be negotiated prior to the commencement of the dispute, and the rules established should be of a permanent nature’.  So the Spanish government was asked again ‘to address through social dialogue with the most representative organizations of employers and workers the operation of the machinery for the determination of minimum services and the other issues and concerns raised by these organizations in relation to the exercise of the right to strike’.

Shapps’ proposals to make regulations to prescribe MSLs appear to fall short of these demands made of the Spanish government.  True, he is proposing rules to be established that will be of a permanent nature.  But these will not be the product of social dialogue.  On the contrary, they are to be imposed unilaterally.  Nor is provision to be made to require minimum services to be negotiated prior to the commencement of the dispute.  These are to be imposed by the employer after consulting the trade union within the framework created by Shapps.

The voice of the trade union is thus completely diminished both in terms of setting the MSLs, and in determining how they are to apply in any particular case.

IV

Which brings us finally to the position in Italy, which has not been the subject of a complaint to the ILO (although the law on minimum service levels has now been raised before the European Social Rights Committee).   There are many reasons why the Italian situation has so far not troubled the ILO, not the least being that it sets standards which appear broadly compatible with ILO obligations.  In doing so, the Italian law reveals the extent to which the Shapps’ Bill falls short not only of ILO standards, but also what seems to be best international practice if MSLs are to be used.

The Italian system is governed by the Law of 12 June 1990, No 146, which regulates strikes in all essential services (rail, air transport, health service, customs, etc.).   The aim of the law is to limit strikes in these services with the unions’ collaboration, which means that the minimum service levels should be established by trade unions and employers through collective bargaining.   The collective agreement establishes the minimum numbers of workers necessary to guarantee the minimum services, and the procedures for identifying the workers obliged to work.

In the event of a failure to agree, or in the event of the agreement being considered inadequate, the minimum service can be fixed by an independent body.  Currently composed of five members nominated by Parliament, the latter (called the ‘Commissione di Garanzia’ (Guarantee Commission)) must encourage the parties to reach an agreement, failing which it is required to set the minimum standards.   All five members of the ‘Commissione di Garanzia’ are labour law professors, and their work is fully transparent.   For details see here.

Thereafter, if a worker violates the minimum service requirements, he or she can be disciplined, but only by way of a fine up to four hours pay, or suspension from work for up to 10 days.   In contrast to what is being proposed by Shapps, dismissal is expressly forbidden in Italian law.   The effect of Shapps proposal would not only be that workers who refuse to be requisitioned will lose their unfair dismissal protection for participation in a lawful strike.  It would also mean that if a union fails to take ‘reasonable steps’ to ensure that those who are requisitioned do not take part in the strike, then everyone will lose their full protection from dismissal for taking part in what would otherwise be a lawful strike.   That is quite a consequence.

V

Let’s return to the Strikes (Minimum Service Levels) Bill and government claims that (a) minimum service levels are authorized by the ILO, and (b) that legislation of this kind operates in France, Spain and Italy.  That may be so, but what is being proposed by the British government appears to be inconsistent with ILO obligations as determined by the ILO supervisory bodies – particularly in relation to French law and Spanish practice.

The Bill raises these specific areas of concern:

• It makes provision for service levels to be determined unilaterally by Shapps without any requirement of trade union and employer involvement;
• In the event of a strike, the employer is required only to consult the union as to the service levels required within the framework determined by Shapps;
• Consequently, there is no obligation on the employer to negotiate an agreement with the trade union about service levels in advance of the strike;
• As a result, there is no role for an independent agency or the courts to adjudicate any disputes where there is a failure of the parties to agree on minimum levels;
• The Bill makes no provision to ensure that the scope of the minimum service requirements are not so excessive that the strike becomes ineffective in practice.

Quite apart from the foregoing, it is questionable whether other aspects of the Bill are consistent with ILO Convention 87.  These include:

• The duty on the union to take ‘reasonable steps’ to ensure that members requisitioned by work notices unilaterally issued by the employer do not take part in the strike;
• the latter directly contradicts the principle of freedom of association by requiring trade unions actively to take steps to undermine the effectiveness of their own action in the interests of the employer.
• the sanction on the union for failing to take ‘reasonable steps’ to ensure strikebreaking by workers subject to the work notice;
• the removal of unfair dismissal protection from trade union members who refuse to cross picket lines – excessive compared to Italy; and
• the removal of unfair dismissal protection from all strikers where the union has not taken ‘reasonable steps’ to ensure those subject to a work notice do not participate in the strike.

As pointed out by Ruth Dukes in an extremely valuable piece on the IER Blog, these concerns have implications not only for compliance with ILO Convention 98, but also the European Convention on Human Rights, ‘given the willingness of the European Court of Human Rights in some cases to refer to international law when interpreting Article 11 of the Convention’.   To say the least, the ministerial statement of compatibility with the Human Rights Act 1998 on the face of the Strikes (Minimum Service Levels) Bill seems wildly optimistic.

Furthermore, given the cumulative weight of restrictions on the right to strike in the UK (‘the most restrictive laws on trade unions in the Western World’ as Mr Blair described them in 1997), the fact that many aspects of those restrictions have been condemned by the ILO supervisory bodies as incompatible with ILO Convention 87, the absence of similar restrictions in France, Spain and Italy (indeed almost anywhere else in Europe), the ILO is not likely to view the additional impact of the Bill with favour.

We are grateful to Professor Vincenzo Bavaro, Professor Emmanuel Dockes, and the late Professor Riccardo Del Punta for advice in the preparation of the piece.  The authors are solely responsible for any errors or misunderstandings.