Transport Strikes (Minimum Service Level) Bill

Excerpt from 'Workers' Rights in Times of Crisis' - Prof Keith Ewing & John Hendy KC (Dec 2022)

Commentary icon6 Jan 2023|Comment

Professor Keith Ewing

President of the Institute of Employment Rights

Lord John Hendy KC

Chair of the Institute of Employment Rights

This is an excerpt from the IER booklet, ‘Workers’ Rights in Times of Crisis’, written by Professor Keith Ewing & John Hendy KC & published by the Instititute in December 2022. It is likely that the Transport Strikes (Minimum Service) Bill will be withdrawn and replaced with a new Bill extending its scope early next week, but Keith and John’s analysis of the previous Bill gives a vital overview of  the Government’s direction of travel. 

The Transport Strikes (Minimum Service Level) Bill is a full-frontal assault on the right to strike which seeks to turn trade unions into strike-breakers and collaborators with employers to undermine industrial action. The starting point is an obligation on trade unions (including one not recognised by the relevant employer for collective bargaining) to enter into a minimum service agreement with the employer. This will establish the minimum services the union will in effect be required to guarantee during a strike. It is of course deeply ironic that a trade union which the employer refuses to recognise for collective bargaining over terms and conditions is required by this proposed legislation to bargain collectively over minimum service levels!

Anticipating the likelihood that an agreement will not be reached, the Bill proposes that in these circumstances a trade union and an employer can make a joint application to the Central Arbitration Committee to decide on the minimum service required. And anticipating the likelihood that trade unions are unlikely to agree to any such joint reference, the Bill menacingly provides as a backstop that the Secretary of State for Transport may make minimum service regulations ‘setting out levels of service to be provided’. There is no indication as to what transport services will be covered by the Act. This is a matter for the government to decide in regulations yet to be drafted.

Nor is there any indication of how the minimum service is to be provided. Is it a fixed percentage of services throughout the day or week; or is it defined services at particular times of day (for example during commuting periods)? This too, it seems, will be for the government to determine in minimum service regulations. Whatever those answers, a matter of even greater concern is that when a strike takes place in the services to which this legislation will apply, an employer will be empowered to issue a ‘work notice’ which will ‘identify the persons required to work during the strike’, and ‘specify the work to be carried out’. The unions are to be consulted but the employer has the last word and can impose a work notice, contrary to the ILO requirement that such specifications should be negotiated and not imposed unilaterally.

A matter of greater concern still is that unions will be under a duty ‘to take reasonable steps to ensure that the persons identified in the [work] notice do not take part, or continue to take part, in the strike’. It is to be noted that the duty of the union is not to refrain from inducing members to take part in industrial action in breach of an employer’s unilaterally determined work notice. Rather, it is a duty to take active steps to stop workers from doing so, a duty which extends to all workers – members and non-members alike. Quite what a union has to do to discharge its duty to non-members is not revealed. What is clear is that the union will have a legal duty to take steps to ensure the ineffectiveness of its own strike, including potentially by disciplining its own members.

It goes without saying that serious penalties face workers who fail to comply with demands that they should be requisitioned for strike-breaking purposes. If they are dismissed, they lose the protection against unfair dismissal for taking part in a lawful strike: the dismissal will not be automatically unfair. Unions which refuse to comply with the proposed duty to take ‘reasonable steps’ to ensure that workers break the strike will face injunctions – at the hand of the employer or potentially third parties under existing but so far little used powers introduced by the Major government. They also face liability in damages which may be more attractive to employers now that the ceiling on damages has been increased to £1 million in the case of the larger unions.

Proposals for Further Restrictions

The Transport Strikes (Minimum Service Level) Bill will impose unprecedented obligations on trade unions actively to undermine the interests of their members. For that and other reasons, there are obvious questions about its compatibility with international legal obligations. But as the third specifically anti-union measure introduced in a short period of time, it begs the question of what next? An insight was provided by Grant Shapps who – while Boris Johnson’s Secretary of State for Transport – published a 16-point plan ‘to smash the rail unions’.

Shapps’s manifesto is all the more significant for the fact that he is now the Business Secretary in the Sunak government, and in a position to do something to implement his anti-union proposals. Indeed, three of the measures (agency workers in strikes, increased trade union liability in damages, and minimum service levels) have already been adopted or are in the process of being adopted. The others are wide-ranging and far-reaching, and go well beyond the fantasy of crushing the rail unions.

Some of Shapps’s plans are inexplicable, such as the plan to outlaw the check off (whereby a worker can agree with an employer that their union contributions are deducted from wages by the employer for transmission to the union), and to introduce even further restrictions on facility time for trade union representatives in the public sector, beyond those introduced by the Trade Union Act 2016. Others are designed clearly to tighten legal restrictions on trade unions still further, including a strike ballot support threshold of 50% in important public services. Shapps himself managed only 27,394 votes in a constituency of some 70,000 voters at the 2019 general election, that is to say around 40%.

Further restrictions would require unions to give four weeks’ notice before industrial action could begin, with a ballot authorising only ‘one event’ of industrial action.

That apart, even more information would have to be included on the ballot paper, including the employer’s response to the union position. In addition,

it should be ‘easier for employers to put pay offers directly to workers, rather than via their union, by removing risk of legal sanctions’. This is presumably designed to overturn the decision of the Supreme Court in Kostal UK Ltd v Dunkley, which gave effect to legislation introduced to implement the decision of the European Court of Human Rights in Wilson and Palmer v United Kingdom.

Shapps also proposed ‘absolute limits on numbers attending’, as well as other picketing restrictions including picketing in the vicinity of Critical National Infrastructure sites.

If this was not enough, even more chilling is the proposal to permit the Civil Contingencies Act 2004 to be used to stop strike action. This would enable a senior minister to make emergency regulations to ban strikes by transport workers, dockers, food distribution workers, fuel tanker drivers, postal workers, and health service workers. Powers in the same Act would enable regulations to make it an offence to take part in such action, and to impose criminal sanctions on those doing so.

You can download and read the full booklet here for free.

Professor Keith Ewing

Professor 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 the President of the Institute of Employment Rights and a Vice President of the Campaign for Trade Union Freedom.

Lord John Hendy KC

Lord Hendy KC is Chair of the Institute of Employment Rights. He is a barrister specialising in industrial relations law, based in Old Square Chambers, London. He is President of the International Centre for Trade Union Rights (ICTUR) and a Vice President of the Campaign for Trade Union Freedom.