The Strikes (Minimum Service Levels) Bill published by the government on Tuesday this week represents a serious attack on trade unions and employees taking strike action.
Broadly, it does this by providing a mechanism for employers to serve ‘work notices’ on trade unions organising industrial action in ‘relevant services’ where the government has set minimum service levels. If a union does not take ‘all reasonable steps’ to ensure that its members identified in the work notice comply, it will lose its immunity in respect of the industrial action, and the non-complying workers will lose their protection from dismissal.
More specifically, the Bill gives the Secretary of State power to make ‘minimum service regulations’ specifying levels of service in relation to strikes in ‘relevant services’. There is apparently no limit on the factors the Secretary of State would be permitted to take into account in doing so. Indeed, the only requirement is to consult ‘such persons as they consider appropriate’ before making the regulations which can even include a consultation before the Act comes into force.
These ‘minimum service regulations’ can be made for services within any of the following categories: health; fire and rescue; education; transport; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security.
Where minimum service regulations have been made in relation to a relevant service and a union has given notice of industrial action which relates to the provision of that service, the employer can serve a ‘work notice’ on the union. This would identify the people required to work as well as the work to be performed during the strike in order to meet the minimum service level.
If a union is served with a work notice but ‘fails to take reasonable steps to ensure that all members of the union who are identified’ comply with it, it would lose its immunity from being sued in respect of the strike action. This would apply to the entirety of the action, exposing the union to being sued for damages up to the sums set out in The Liability of Trade Union in Proceedings in Tort (Increase of Limits on Damages) Order 2002, which, in the case of unions with more than 100,000 members is £1 million.
Workers who do not comply with any work notice in which they are identified would lose the protection of section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992. This states that any dismissal for taking part in protected industrial action is unfair if it takes place within the first 12 weeks of taking protected industrial action and may be unfair if it takes place later.
Unlike the Transport Strikes (Minimum Service Levels) Bill published in November, which provided for the involvement of the Central Arbitration Committee in the determination of minimum service levels and minimum service agreements, this new Bill has no such provision and makes no pretence at protection of public safety, the economy or the environment. Its purpose is simply ‘…to restrict the protection [TULRCA] provides to trade unions and employees in respect of strikes…’.
The government has chosen to ignore international labour standards. In Thompsons’ view, that leaves it vulnerable to legal challenge.
Government points to minimum service levels in France, Spain and Italy. But, as Professor Alan Bogg has pointed out, restrictions on the right to strike are cumulative, and none of those countries (even if they enforce minimum service levels) have anything approaching the overall cumulative extent of restrictions being proposed in this Bill.
Aside from the legal challenges that this legislation will face if enacted, the provisions will be hugely challenging to operate at a practical level. It is impossible to see how the Secretary of State would be able to effectively define what minimum service levels should be. And there is obvious scope for abuse by employers on a number of fronts.
To read the Bill in full, click here.