The Strikes (Minimum Service) Bill: A Blatant Violation of International Labour Standards

1. Introduction

The Strikes (Minimum Service Levels) Bill (“MSB”)is another legislative episode in the never-ending ‘death by a thousand cuts’ of trade unions’ ability to mount an effective lawful industrial action. As it is well-known, industrial action in the UK is subject to a wide range of legal restrictions that work cumulatively to make less likely its occurrence (such as stringent ballot thresholds or wide scope for injunctions) or constrain its effectiveness (such as long notice periods, short ballot mandates and the permissible use of agency workers as strike replacements).

In this long process, the MSB seeks to tighten the screw even more for trade unions and striking workers. If enacted, the Bill will empower the Secretary of State to make regulations that provide minimum service levels in certain sectors. Following their publication, employers in these sectors would be able to serve the union ‘work notices’ that identify the persons and the work required for securing the levels of service that are required by the regulation. Failure to comply with these notices would mean that those employees would lose the protection against unfair dismissal. At a collective level, the union will be subject to damages in tort if it ‘fails to take reasonable steps to ensure’ that the union members identified in the work notice comply with the effect that all striking workers would lose their automatic protection from unfair dismissal.

The introduction of a new round of further restrictions on industrial action by a Conservative Government is hardly surprising. What is novel, however, is the invocation of ILO International Labour Standards in support of the restrictions. ILO rules are typically ignored by Conservative Governments as evident in the disregard of multiple criticisms by ILO supervisory bodies. The latest example is the repeal of the prohibition of the use of agency workers as strike replacements last July which is clearly against ILO standards and a ‘serious violation’ of freedom of association (CFA; para.  918)

In the House of Commons, Prime Minister Rishi Sunak claimed that the ILO ‘supports minimum service levels’. On its website, the BEIS Department noted in support of the Bill that the ILO ‘recognizes MSLs as a sensible solution to protect the public from serious consequences of strikes’ and ‘accepts limitations on strikes is permissible where life is endangered or other serious consequences for the public’ [sic].

In light of these claims, this post assesses the compatibility of the MSB with ILO standards. It argues that the Government’s claim, to the extent that it implies MSB’s compliance with ILO standards, does not stand up to scrutiny. The MSB will widen the already extensive gap between UK law on industrial action and ILO standards. This is mainly because MSB’s governance model of minimum services is shaped by what could be termed ‘dual unilateralism’, that is executive and employer unilateralism in the determination and application of the minimum service regime. This runs counter to the ILO approach which assigns priority to the social partners’ determination of the regime and distrusts governments’ involvement in the process.

The post is structured as follows. After a discussion of the scope of the minimum service provisions in the MSB, it identifies ‘dual unilateralism’ as a key defect of the minimum services governance. The next part looks at the cumulative effect of the provisions, while the final part concludes that the MSB is a blatant violation of international labour standards.

2. The MSB Scope of Minimum Service Provisions

Viewed in isolation and without considering their cumulative effect, the scope of the MSB complies with ILO standards. The MSB covers the following sectors: (a) health services; (b) fire and rescue services; (c) education services; (d) transport services; (e) decommissioning of nuclear installations and management of radioactive waste and spent fuel; and (f) border security. This list is familiar from the Trade Union Act 2016.  It corresponds to the ‘important public services’ where stricter thresholds apply for successful industrial action ballots (40% of eligible members to vote in favour on top of the 50% turnout requirements).

Indeed, the ILO permits the imposition of minimum service levels in all of these sectors. According to the ILO Committee on Freedom of Association (CFA), they are allowed in the following cases (para. 866):

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’.

‘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).

Education and transport sectors cannot be deemed essential services. However, they could be included in the category of ‘public services of fundamental importance’. Indeed, 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). And in a specific comment during the examination of the UK’s proposed list of important public services under the Trade Union Act 2016, the ILO Committee of Experts on the Application of Conventions and Recommendations (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).

3. ‘Dual Unilateralism’: The Chief Defect of the MSB

From the perspective of international labour standards, the most problematic feature of the MSB is the unilateral construction of the designated governance of minimum services. It is based on ‘dual unilateralism’. The Bill grants virtually unlimited power to the Secretary of State to determine the minimum service levels and to the employer to apply them.  In practice, of course, this dual unilateralism could collapse into single unilateralism. This is because the Government is the de facto or de jure employer in many sectors covered by minimum services, or it plays a critical role in the negotiations due to the provision of funding (as in the education and train transport sectors). This unilateralism operates – and is manifested – at multiple levels.

Firstly, the MSB does not set any substantive constraints on the Minister’s power to determine the required minimum service levels. There are no principles, criteria, or limitations established to govern this discretion. It thus appears as an unrestrained form of executive unilateralism. It represents a further step in the overall direction of an authoritarian approach to trade union regulation (as presciently identified by Alan Bogg in a piece on the TUA 2016).  Moreover, the MSB does not even indicate the type of criteria that the Minister has the power to fix. Will they assume a quantitative form, either as an absolute number or as a proportion of the workforce? Will they refer to categories of workers? Or will they instead take a generic, purposive form, that is to those levels required to meet a certain objective or objectives such as to ‘cover the basic needs of the users’, ‘maintain safety’ or ensure ‘a minimum satisfactory level of education for students’. Or some combination of the above? This silence is of fundamental significance for this type of unilateralism. The Minister operates in a space of unfettered discretion.

This absence of substantive constraints conflicts with ILO standards as determined by its supervisory bodies. While ILO standards permit minimum services in certain cases, 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) 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, 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. The MSB should have contained similar substantive safeguards to be compliant with ILO standards.

Secondly, MSB’s dual unilateralism manifests itself in the lack of any effective procedural constraints on the two-tiered unilateral structure of Ministerial regulation and employer application. More specifically, the Bill only provides that, before making regulations, the ‘Secretary of State must consult such persons as the Secretary of State considers appropriate’. The ‘duty to consult’ here (‘must’) is gravely weakened by the expression ‘as the Secretary of State considers appropriate’. Trade unions are not named as such, and no specific tripartite process is constructed. While a Ministerial failure to consult with unions would probably be rendered unfair on traditional judicial review grounds, this is a striking omission.  This model is in profound conflict to 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). And obviously the MSB itself did not adhere to these requirements as it was introduced without a meaningful prior consultation in accordance with ILO standards.

Subsequently, the employers in the sectors subject to regulations are given the unilateral power to ‘identify the persons’ and ‘specify the work required’ for ‘securing’ the levels of services provided in the regulation. This construction seems to indicate a broad discretion to the employer to make these assessments and, conversely, the operation of the regulations at a more general level. The specified limit that employers should not identify more persons than ‘reasonably necessary’ for the minimum services level set by the Minister does not seem to operate as a substantive constraint on this unilateralism. The precise scope of employer unilateralism would ultimately depend on the operation of executive unilateralism. If the regulation establishes vague or purposiveminimum service levels (such as ‘to cover basic needs’ or to ‘ensure safety’), the employer may have broader leeway in what could be, in practice, an act of determination of minimum service levels.

In this process of employer determination, the MSB imposes minimal consultation requirements. The employer shall only ‘consult the union about the number of persons to be identified and the work to be specified in the notice’ and merely to ‘have regard to any views expressed by the union in response’.

It is very important that the Bill makes no references to the possibility of minimum services decided by collective negotiations and agreements, and fails to designate an independent body to resolve any disputes. Here, the MSB diverges from the Transport Strikes (Minimum Services Levels) Bill introduced last October in the transport sector. In a model closer to the ILO standards, the Transport Bill provided for negotiated agreements between employers and unions (minimum services agreements), and, in case of a failure to agree, for a determination by the Central Arbitration Committee with a power to enforce them. No justification is offered for the MSB’s departure from this model. The MSB privileges a model of employer unilateralism over a system where minimum services are collectively decided by social partners and, if this is not possible, by an independent body.

Even more worryingly, the MSB provides no guidance or criteria as to how the employer would determine those workers subject to a duty to work under a ‘work notice’. It only states that they should not be included because of union membership. This is a very weak safeguard that provides a wide scope for abuse by an employer. What if an employer decides to select workers based on their participation in previous industrial action(s) or picket lines or based on their intention to participate in the industrial action or picket lines subject to the minimum services? Or what if an employer decides to select union activists or those leading previous strikes in order to reduce their effectiveness by moving them from the picket lines to work? All these cases would not be directly covered by this safeguard because the selection will still not be based on grounds of union membership. In these cases, those workers would have a duty to comply with the work notice, with non-compliance entailing the unprotected nature of the whole industrial action if it is deemed that the union failed to take ‘reasonable steps’ to ensure their compliance.

And it is a complex and unclear question whether the protection against detriment on grounds of trade union activities ‘at an appropriate time’ (under TULRCA s 146) may be applicable here. In the Mercer judgment (whose appeal is currently being considered by the Supreme Court), the Court of Appeal refused to extend the notion of ‘detriment’ to cover participation in industrial action as it was not considered to be a trade union activity occurring ‘at an appropriate time’. It may be that the employer’s decision to list union activists and leaders would attract the s 146 protection if it is shown that the targeted activity was ‘at an appropriate time’ (though unlikely to cover a selection based on picket activity), subject to the assumption that being listed is a ‘detriment’. But even in this scenario, the remedy would be an individual remedy. The duty of those workers to comply will remain. A failure to comply would risk exposing fellow workers exercising their right to strike to the risk of dismissal and their union to severe damages if it is shown that the union ‘failed to take reasonable steps’ to ensure compliance. This ‘thin’ construction of the prohibited selected criteria constitutes a grave risk to freedom of association and the fundamental right of workers and unions to organize and strike.  It permits employers to strategically use the practice of arbitrarily listing specified workers for minimum services for weakening the industrial action and potentially ‘sanctioning’ them for legitimate trade union activities in contrast to ILO standards. Even if the Bill is allowed to proceed, it is imperative that this provision is amended as to add as a minimum the following as relevant prohibited selection criteria:

• participation in previous industrial action or industrial actions against the same or different employer and in associated activities (such as picketing);
• intention to participate in industrial action and in associated activities;
• trade union activities.

Moving to the broader picture, this overall architecture of ‘dual unilateralism’ is in profound contrast with the spirit and letter of ILO standards that privilege a consensual determination and application of minimum service levels by the social partners and distrust government involvement in them. ILO standards attach special significance to social dialogue and the involvement of both parties in the negotiation of minimum services. They 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 dissipate 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 by the employer 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).

Finally, it is notable that the MSB provides for no independent body to review and resolve issues around the application of minimum service levels. This is to an extent a consequence of the unilateral configuration of the system. If there are no substantive or procedural criteria that restrain the power of the employers and to the extent that trade unions are treated as consultative bodies, it may follow that, for the legislator, it is up to the employer to have the final say. This goes against ILO standards highlighting the need for the independence of the dispute resolution process. For ILO, 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).

4. Cumulative Effect

The above analysis demonstrates the violation of ILO standards by the MSB’s dual unilateralism. But it should be also noted that, even with regards to the scope of the provisions in relation to which MSB appears to be prima facie compliant, ILO rules take into account the cumulative effect of restrictions. 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). The notion of ‘substantial limitation’ should be understood not as referring only to the specific measure but seen in the broader context and systemic effect with other existing restrictions.

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’. The MSB would impose cumulatively an additional ‘strong substantive limitation’ on top of other restrictions in those sectors concerned. These minimum services requirements and the associated threat of dismissal and damages for non-compliance, would cumulatively interact with the numerous existing restrictions (strict ballot thresholds, long notice periods, short ballot mandates, permissible use of agency workers as strike replacements, threat of injunctions) as to reduce even more the effectiveness of lawful industrial action.

5. Conclusion

Notwithstanding the Government’s rhetoric, the MSB is a blatant violation of ILO standards because of a chief defect: ‘dual unilateralism’. It enshrines a view of the Government and the employers as the only neutral ‘enlightened actors’ to pursue the putative public interest in the form of minimum services, and marginalizes trade unions and by extension workers. The embedding of minimum services in an overall model of unilateralism by the MSB combines the managerial unilateralism of the neo-liberal model of industrial relations and the executive unilateralism of authoritarianism. This makes the British case different to other systems where minimum service levels may be embedded in a collectivist and more balanced system of industrial relations comprising stronger collective institutions, a broader scope for lawful industrial action and in many cases constitutional safeguards.  For example, in Italy minimum service agreements must be set by collective agreements and an independent body exists (Commission of Guarantees) to assess their adequacy.

The overall result of the MSB would be to enshrine a legislated form of unrestricted unilateralism that would tilt the balance of power even more towards employers. And, as discussed, in most cases the dual unilateralism would in practice amount to a single unilateralism. The MSB would give the Government two strategic legal levers in the negotiations – a Ministerial discretion to issue and amend regulations and, as a de facto or de jure employer, to apply them in specific contexts. Industrial disputes and collective negotiations would thus operate in the shadow of this unilateralism with no substantive guarantees as to their setting at a genuinely minimum level.

The MSB’s incompatibility with ILO standards is also important for assessing its compliance with Article 11 of the ECHR on freedom of association. The European Court of Human Rights assigns a major weight to the comments of the ILO supervisory bodies for determining the compatibility of restrictions. For example, in Ognevenko v Russia  (a decision issued in 2019)the ECtHR strongly relied on ILO standards and comments by its supervisory bodies when finding that the dismissal of a striking worker in the railway sector in Russia violated  Article 11 of the ECHR. In this case, the Court reminded the ILO’s CEACR conclusion that in this sector a ‘negotiated minimum service could be established’ (para. 23).

Whatever merits the Government can invoke in support of this Bill, its compliance with ILO standards is not one of them. It is a defect, not a virtue. But if the Government wishes to avoid the charge of an erroneous and opportunistic bad faith invocation of international labour law, it is open to it to invite the ILO to assess the MSB for its compliance with ILO standards as part of a broader review of the industrial action framework. That would be a welcome step towards restoring the international rule of law.

This blog was originally published on the UK Labour Law website.