State Coercion

The six sectors the Bill applies to are those identified in the Tories’ Trade Union Act 2016, which 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. Those working in these services were clapped for their heroism during Covid—and they’re now being rewarded by offers of below-inflation pay rises and the threat of denial of one of their human rights.

In taking new powers, Shapps proposes to add to the cumulative weight of restrictions on industrial action. In 1997 a former Prime Minister stated, correctly, that Britain has ‘the most restrictive laws on trade unions in the Western World’. Since then, further extensive restrictions have been introduced not only by the Trade Union Act 2016, but also by regulations permitting agency workers to be hired to break strikes, and by quadrupling the limit on damages payable by trade unions.

Unlike the now-redundant Transport (Minimum Service Levels) Bill introduced in October, the current Bill not only expands the workforces required to have a minimum service level (MSL), but does away with the requirement that the MSL for each sector should be negotiated by trade unions and employers. Instead, the new Bill gives complete and unfettered discretion to Grant Shapps to set the MSL.

This means Shapps may well set MSLs at such a high level that any strike will be rendered largely ineffective. The only constraint on Shapps is likely to be that in many of the six sectors, chronic underfunding and short-staffing mean only low MSLs can be fulfilled even in normal times, when no-one’s on strike. The ambulance service and Avanti trains, as just two examples, exemplify that—and highlight the unfairness of requiring workers, but not employers, to fulfil MSLs.

Ministerial power aside, the Bill is a symptom of how the Department for Business, Energy and Industrial Strategy (BEIS) has become not only the friend of employers, but an instrument of the coercive state. Despite his protestations in the Commons about respecting the right to strike, Shapps and his civil servants are proposing to take the power to render the right to strike no more than a right to a meaningful but ineffective protest. There will be a right to strike only to the extent permitted by BEIS.

That authority will be reinforced by wholly disproportionate sanctions to ensure obedience to the State’s will. Where a strike does take place within the framework permitted by our already restrictive current laws, an employer (who might have provoked the strike, for example, by ‘fire and rehire’) will only be required ‘to consult’ the relevant trade union over the number of workers needed, and the work to be done, to fulfil the MSL pre-set by Shapps.

Having consulted, but with or without the union’s agreement, the employer then has the unilateral right to issue a ‘work notice’ identifying the individual workers required to operate the MSL. A worker who refuses to comply will lose unfair dismissal protection if they are dismissed. While not as far-reaching as the Essential Work Orders in force during the Second World War, the Bill proposes for the first time since then a statutory provision that enables employers, with the authority of the State, to requisition workers.

In other words, the government is authorising employers to do what not even a court in this country can do. Under the Trade Union and Labour Relations (Consolidation) Act 1992, section 236, no court can ‘compel an employee to do any work or attend at any place for the doing of any work’.   But having notified the union of the identity of the workers to be compelled to work, the Bill then requires the union take ‘reasonable steps’ to ensure all members identified in the work notice comply.

The question is this: what would a trade union have to do to show it had taken ‘reasonable steps’? Issue an instruction to relevant members that they must not strike? An instruction that they must cross picket lines? That, of course, would place the individual worker in an unjust and humiliating position, particularly for someone who was a branch official or shop steward—for whom there are no exceptions in the Bill.

It’s easy to imagine employers arguing in court that the union failed to take ‘reasonable steps’ because it didn’t discipline or expel a member who refused to comply with a work notice, particularly if the failure was persistent. We therefore face the following paradox: since 1988 legislation has meant that a trade union is prohibited by law from disciplining or expelling a member who refuses to take part in a strike. Under this Bill, the same trade union could be required to discipline or expel another member who does take part in that 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 risk of contempt of court proceedings, heavy fines, and the sequestration of the union’s assets in the event of non-compliance. The only way to avoid this is for trade unions, at the behest of the State and on behalf of employers, to operate as instruments of coercion over their own members. It’s a role unions have never in the past been required to perform, and one they should not be obliged to do now.

Another Authoritarian Turn

It’s unlikely that such an authoritarian turn—even greater than others we’ve seen recently—in our labour law is consistent with the UK’s international legal obligations.  These include Article 11 of the European Convention on Human Rights; Article 3 of Convention 87 of the International Labour Organisation (ILO); Article 8 of the International Covenant on Economic, Social and Cultural Rights; and Article 6(4) of the European Social Charter 1961. The government reaffirmed its commitment to several of these treaties in the EU-UK Trade and Cooperation Agreement 2021, the effectiveness of which will no doubt be tested in the months to come.

It’s therefore a matter of some concern that our Prime Minister should try to justify the Bill by claiming that minimum service levels are authorised by the ILO. What he did not say is that the ILO supervisory bodies place restraints on the circumstances in which such powers can be used. The blank cheque this Bill gives to Shapps to determine the scope and content of the erosion of the right to strike is the very antithesis of what the ILO demands. Sunak clearly needs more capable advisers.

Little wonder that trade unions are enraged. We should all be enraged: the Bill is contemptuous of parliamentary democracy, and an affront to human rights. Its purpose is to weaken the power of workers and increase the power of employers. In the absence of an effective right to strike, pay and terms and conditions are set by employers without the input of workers. The existence of the right to strike—exercised or not—is the one lever by which power in the workplace can be balanced. This Bill will be a further blow to workers’ shrinking share.

And, crucially, the Bill will do nothing to resolve the disputes causing our current strikes. It will only exacerbate feelings of injustice. As we learned from the experience of banning strikes during the Second World War, if they are deprived of the right to strike, workers will find other ways to express their discontent. These will be much harder to contain, likely making disputes more difficult to resolve as a result.

There is talk of litigation to challenge the Bill, but in our view, it needs to be defeated by a political campaign without the need for the courts, just as the Industrial Relations Act 1971 was defeated fifty years ago. With this in mind, the Bill goes well beyond the government’s 2019 election manifesto commitments. It has no mandate to regulate for MSLs in the expanded range of sectors in the new Bill. This should embolden parliamentarians of all parties to do their constitutional duty: deny ministers the authoritarian powers they crave, and defend the liberties of the people.

This article was originally published on the Tribune website.