Three attacks on the right to strike

The Tories are looking at ways to force ‘minimum servicing,’ agency strike-breakers and a massive increase in damages onto the unions

Commentary icon28 Jun 2022|Comment

Keith Ewing

Professor of Public Law, King’s College London

The government response to the RMT dispute is straight from the Tory playbook.

A simmering resentment of a trade union, pick a fight with the same union, control the management of the dispute and use the dispute for partisan political ends which serve no public interest, with passengers and workers treated as collateral damage. Use it also as cover for even more attacks on the right to strike.

So far the strike has generated three proposals to change the law, adding to the burden of restrictions introduced since 1989.

First are the much-publicised proposals to allow employers to hire agency workers to act as strike-breakers.

This had been floated by the Cameron government in 2015 at the time of the Trade Union Bill, but not implemented. Even Cameron’s ministers could see the folly of this measure.

Agencies have made it clear that they are not interested in stunts of this kind. Why would they would want to be drawn into bitter disputes? Why would they risk reputational damage by supplying scabs?

There is a shortage of skilled workers. Where are the skilled workers available in numbers to do this work? Given the safety issues (especially on the railways), why are we even contemplating proposals of this kind?

Second, we have the Tory proposals for minimum-service agreements during strikes, initially proposed in their 2019 election manifesto for the railways only.

It remains to be seen whether it is extended to other sectors. But the danger of course is that a minimum service obligation is a form of state-imposed strike-breaking and a synonym for a minimum-disruption obligation.

It is a proposal fraught with difficulty. What would be a minimum service? 10 per cent, 50 per cent, 75 per cent? On all lines and at all times of the day? Who decides? And who decides which staff are to be involved as state-mandated strike-breakers? All staff? Or just those who are selected? If the latter, selected by whom? What happens if anyone selected refuses to strike-break, insisting on exercising their right to strike?

At the moment, the statute book contains a much-overlooked provision, which states that no court can “compel an employee to do any work or attend at any place for the doing of any work.”

Is this to be repealed? Is the protection from unfair dismissal to be removed from workers who refuse to strike-break? What about the liability of the union? If workers refuse to surrender their right to strike, will the union be liable if the strike goes ahead?

Senior Tories excited by this proposal tell us that minimum-service obligations operate in France, Italy and Spain.

But what they don’t tell us is that the right to strike is constitutionally protected in these countries and that trade unions do not labour under the same restrictions as they do in this country. What is being proposed by the Tories is an additional burden, not an alternative.

The whole Thatcherite programme was about prohibiting strikes. They banned solidarity action and secondary picketing. That didn’t work. So they required ballot and notice requirements. That didn’t work. So they tightened the rules and increased the thresholds. That didn’t work. So now minimum disruption during strikes: the right to anaemic industrial action. When that fails, what next? Why not a total ban in some — or indeed all — sectors?

Finally, we have the third proposal which was sneaked out on Thursday, the day the Tories were thrashed at Wakefield, and Tiverton and Honiton respectively.

This is the proposal to raise the damages threshold for unlawful industrial action to £1 million in the case of unions with over 100,000 members. So far as I am aware, there was no demand for this from employers, and there has been no consultation with anyone.

Like the agency workers’ proposals, the increase in the damages threshold can be done by regulations and does not need an Act of Parliament — that is to say by ministerial fiat by using powers bequeathed by Thatcher in 1982 for this purpose.

But the powers have never been used in all the years that they have existed. So why use them now? And why not require full parliamentary approval for what is an important issue of principle?

Also, like the agency workers’ proposals, the higher damages threshold raises questions of compatibility with the post-Brexit Trade and Co-operation Agreement with the EU.

This requires us to “effectively implement” ILO Conventions. It is hard to see how a £1 million damages bill for taking action which is protected by international law would be consistent with the latter obligation.

But who cares about the law? Was it even considered?

Which takes us back to the RMT strike. As was said with contemporary relevance in relation to a rail dispute in another country in 1915, “through their union they have put in a request that their wages be so advanced that they may maintain the same standard of life as heretofore.

“That modest request must be acceded to, and all the rest of the palaver … dispensed with.”

Originally published in the Morning Star on 27th June 2022. 

Keith Ewing

Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is also the President of the Institute of Employment Rights