Strikes (Minimum Service Levels) Bill goes to Committee & Report Stage

Unions voice serious concerns

30 Jan 2023| News

As the Government’s controversial Strikes (Minimum Service Levels goes to the House of Commons Committee & Report Stage, trade unions have voiced serious concerns about workers’ rights and good industrial relations. Unison, representing 1.3 million workers, have outlined the following concerns about the legislation. MPs will spend up to six hours considering the remaining stages of the Bill on Monday. Ahead of today’s reading, they say:

This Bill gives the UK Government sweeping and widespread executive powers to infringe on fundamental trade union and democratic rights in Great Britain.

  • It curtails the right to strike and weakens protections against unfair dismissal and freedom of association in ways that violate ILO Labour Standards. Our concerns are shared by the US Government and the head of the ILO.
  • It withdraws protections from individual workers exercising their right to strike. This could mean frontline workers face dismissal for taking part in lawful industrial action.
  • With little detail or safeguards on the face of the Bill, it gives Ministers blunt powers to set unspecified ‘Minimum Service Levels’ during strike action which undermine existing arrangements.
  • The Bill grants ‘virtually unlimited power to the Secretary of State to determine the minimum service levels and the employer to apply them’
  • Clause 3 of the Bill has been called a ‘super-charged Henry VIII clause’ which gives the Secretary of State the power to ‘amend, repeal or revoke provision made by or under primary legislation passed before this act or later in the same session of parliament as this act.’
  • The Government’s attempts to rush this Bill through Parliament with shortened timescales and minimal time for scrutiny, debate and consultation undermines the role of parliament in providing due diligence and creating fair and reasoned legislation

Amendments

A series of amendments have been laid at this stage, designed to limit the scope of the Bill, including:

Amendment 1 which would preserve existing protections from unfair dismissal, including for an employee who participates in a strike contrary to a work notice under this Bill.

Amendment 4  which would require the Government to publish assessments of how the proposed legislation would impact on workforce numbers, individual workers, equalities, employers and trade unions before the Bill comes into operation.

Amendments 100 & 101 which remove the Secretary State’s powers to amend, repeal or revoke primary legislation through regulations and also remove the Secretary of State’s powers to bring in regulations to amend, repeal or revoke primary legislation, later in the same session of Parliament as this Act, respectively.

Amendment 102 which would ensure that any regulations made under clause 3, must be made under the affirmative resolution procedure.

Amendment 67 which requires the publication of a report from Joint Committee on Human Rights before the Act can come into operation

Amendments 15 & 99 which would stop the Secretary of State from being able to set minimum service levels for disputes that have already been balloted for, and would stop regulations under this Bill from being applied to strikes which have already been balloted for, respectively.

Amendments 9 & 75 would remove “health services” from the Bill and would exempt various occupations and sub-sectors of the health sector from the regulations in the Bill respectively.

Amendments 10, 11, 74, 12 & 74 which would remove “fire and rescue services”, education services, would exempt various occupations and sub-sectors of the education sector, remove transport services from the Bill and exempt various occupations and sub-sectors of the transport sector from the regulations in the Bill, respectively.

Amendment 3 which would require the Government to assess health and safety performance in the affected sector before making minimum service regulations.

Amendments 70, 71 & 72 which are intended to require employers to take reasonable steps to ensure the serving of work notices does not prevent lawful industrial action from taking place.

Amendment 69 which is intended to ensure that specific workers cannot be prevented from striking by this Bill.

Amendments 64 & 68 which ensure that the selection of persons for work notices cannot be targeted at trade union activists and is intended to give legal recourse in cases where employers may choose to target trade union members with work notices.

Amendments 103 & 104 which aim to ensure that minimum service levels are reached by negotiation between employers and trade unions.

Amendments 65 & 66 which are intended to promote good faith engagement between the employer and trade union when consulting over work notices.

Amendment 63 which would ensure that the trade union’s legal duty is restricted to making its members aware of the content of the work notice.

Amendment 118 which would avoid picketing alone being a cause for a claim against the union under the Act on the basis that this was inducing an identified person to take part in the strike.

Amendment 8 which would require that each relevant Select Committee conducts and publishes inquiries on how the Act will impact on each named sector, before the Act can be brought into operation.

Amendment 5 which would require that the Government consults with a range of stakeholders for each affected sector before making regulations, including relevant trade unions, employers, Government Departments and Select Committees.

Amendments 7 & 6 which would require that the consultation may be satisfied only by consultation completed before the passing of the Act and which requires that the Government makes public any and all consultations, respectively.

Unison cite a number of academic sources that have challenged the Government’s narrative on the proposed legislation:

Ewan McGaughey, a specialist in employment and enterprise law, argues that the Bill’s provisions ‘amount to forced labour’. He points out that:

In France, the so called “minimum service” laws simply require 48 hours’ notice for transport unions to strike (eg, Transport Code article L1324-7), or five days for health workers (Labour Code article L-2512-2). This is purely so that employers can find other staff to cover. In the UK, the law already requires two weeks’ notice, plus an extra week to tell the employer before a strike ballot, and the ballot must be by post – often taking four weeks. The French right to strike is individual. There is no sacking or suing.

The comparisons with Spain, Germany and Italy are also very misleading:

In Italy, minimum service levels are agreed in collective agreements with unions, based on Law No. 146 of 1990, which unions effectively drafted. There is no right of the government, let alone an employer, to force people to work or sack them, or sue the union. In Spain, the Constitutional Court tightly controls all limits on the right to strike, for strict safety or security reasons. In Germany, unions make collective agreements for minimum services, and only when an agreement cannot be reached may a court step in; it is not a government minister, let alone an employer who has the power to decide. Germany has no requirement for arcane postal ballots before strikes, it enables workers to take solidarity action

Ioannis Katsaroumpas, a specialist in employment law, calls the Bill ‘a blatant violation of international labour standards’ pointing to the cumulative impact on the ability of workers to take industrial action by legal restrictions in the UK.  Katsaroumpas points to the huge powers given to both the Secretary of State and to the employer within the Bill’s provisions which he calls “dual unilateralism’ saying that it would ‘widen the already extensive gap between UK law on industrial action and ILO standards’. He argues that ‘this runs counter to the ILO approach which assigns priority to the social partners’ determination of the regime and distrusts government’s involvement in the process’.

TUC’s general secretary Paul Nowak said:

“The Government is trying to keep MPs in the dark about the draconian nature of this Bill. But make no mistake – this legislation will give ministers sweeping new powers to restrict the right to strike.

The Government must not be allowed to duck scrutiny. This spiteful legislation would mean that when workers democratically vote to strike, they can be forced to work and sacked if they don’t comply.

The Minimum Service Levels Bill is undemocratic, unworkable and almost certainly illegal, and crucially it will likely poison industrial relations and exacerbate disputes rather than help resolve them.

It is shameful that parliamentarians are being forced to vote blindly on such far-reaching new laws. We urge MPs from all parties to vote against this nasty Bill.”