Strikes (Minimum Service Levels) Bill
Presented by Tim Sharp
Grant Shapps’s anti-union project
Summer 2022 – Grant Shapps’s 16-point plan
Autumn 2022 - Transport Strikes (Minimum Service Levels) Bill
January 2023 – Strikes (Minimum Service Levels) Bill
Timings�
First reading was on January 10.
Second reading as early as Monday 16 January.
Possible that government will seek to force this through the Commons before the end of January using a committee of the whole house for the committee stage.
The first MSLs could come into force as early as June/July assuming Royal Assent in April/May.
They would apply to any strike action after the regulations come into force, even if notice or ballot undertaken before.
What the Bill does
It allows ministers, by regulation, to impose minimum service levels (MSLs) on services within six sectors.
Consultations on specific MSLs on ambulance services, fire and rail to be conducted in parallel with parliamentary process.
It replaces a Bill previously put forward that would have imposed minimum service levels in parts of the transport sector, notably rail (Transport Strikes (Minimum Service Levels) Bill).
Applies to Great Britain only. Employment law is devolved to Northern Ireland.
Big change 1 – range of sectors
MSLs can apply to services within the following categories (s234B(4)):
• Education
• Fire & rescue services
• Transport services
• Decommissioning of nuclear installations and management of radioactive waste and spent fuel
• Border security
These are sectors that were the subject of increased industrial action ballot thresholds under the Trade Union Act 2016. EXCEPT broader definition of education.
Could be very broad definition of “relevant service” encompassing non-essential and ancillary services.
Big change 2 – shortcut to getting an MSL
Notable change compared to Transport Strikes Bill
Gone:
MSLs will be imposed by statutory instrument under the affirmative procedure (s234F(4))
Before regs made, there must be consultation “with such persons as the Secretary of State considers appropriate” (s234F(1)). This consultation can happen before the Bill receives Royal Assent (s234F(5))
The aim of this is to make introduction of MSLs much quicker – as soon as June/July in ambulance, fire, rail.
No immediate plans for other services – government expects voluntary arrangements.
No criteria for an MSL
There is no guide to the factors the Secretary of State would be permitted to take into account when drafting MSL regulations.
No obligation to listen to social partners.
Could this lead to minimum services of, say, 80% of normal service?
Could some groups of workers effectively be barred from striking?
MSLs can cover disputes already been announced/balloted for before Bill gets Royal Assent.
Work notice
Once an MSL is in place, the employer would be able to issue a 'work notice’. This:
Issued at latest on the seventh day before earliest strike date. Can vary it up to end of fourth day before strike date.
Must not identify more persons “than are reasonably necessary” to provide the service set out by the minimum service regs.
Employer must consult the union about the number of persons identified and work to be specified and “have regard” to any views expressed by the union.
The employer must have no regard to whether someone is a union member or not in identifying the people in the work notice.
Implications for unions
A union could face an injunction or paying damages if it is deemed not to have taken “reasonable steps” to ensure that all members of its union identified in the work notice do not take part in the strike action. s234E(1)(b)
The cap for damages was last year raised to £1 million. It has been rare for damages to be sought from unions in the case of “illegal” industrial action so there is some uncertainty about how this would be applied.
The damages could only be claimed for losses linked to not complying with the work notice, not losses employer would have suffered anyway.
Unions that have members operating in a workplace are bound by a minimum service specification, regardless of whether their union is recognised by the employer.
Implications for individuals
If a person specified in their employer's work notice continues to take strike action despite being required to work during the strike, they will lose their protection from automatic unfair dismissal that currently applies for first 12 weeks of strike.
(Part 2 of the Bill)
Enormous powers for SoS
Government is giving itself huge powers, not only to define services subject to MSLs and the nature of the service, but also to make further consequential regulations, even where those regulations amend primary legislation.
What it doesn’t do
Most of Grant Shapps’s 16-points have been ignored – at least for now.
This includes higher ballot thresholds for strike action and even longer notice periods for employers.
Government has already pointed out key flaws in its own proposals
The impact assessment for the predecessor Transport Strikes Bill said minimum service levels could lead to an “increased frequency of strikes” and “reduced terms and conditions” for workers.
The human rights memorandum published for that Bill explained why minimum service levels weren’t appropriate for a range of sectors, including fire, health and education.
For example: “The large number of employers in the education sector would also likely make minimum service arrangements difficult and very burdensome to implement.”
International comparisons
Government cites Spain, Italy, France (Netherlands, Germany)
(Laura Farris MP: South Africa, Argentina, Australia, Canada)
Is it legally vulnerable?
The government makes much of these plans being compliant with International Labour Organisation requirements. In particular, officials say that broadening MSLs to more sectors removes risk that they could be challenged for discriminating against transport workers. But:
1. The new legislation has to be considered in the context of the UK’s wider industrial relations landscape. There are already highly restrictive rules around balloting procedures.
2. The ILO requires compensatory measures for MSLs. Where are they?
3. ILO jurisprudence appears to show that minimum service levels should be negotiated between the collective parties.
The government has outstanding business at the ILO
The ILO has raised concerns about existing UK employment law.
For example:
In 2016 the committee of experts requested the government provide an update on the introduction of electronic balloting; that the government review the impact of new ballot thresholds; and that it review with social partners the impact of an expanded role for the Certification Officer set out in sections 16-20 of the Trade Union Act 2016.
In addition to this, the committee made a direct request in 2018 for the UK government to review with social partners the protection available to workers who stage industrial action and sections 8 and 9 of the Trade Union Act 2016 that relate to procedural requirements for industrial action.
The committee also made a direct request, in connection with Convention 98 for information concerning the measures taken to promote collective bargaining in the agriculture sector.
Conclusion