“The TUC has called a Special Congress to chart the movement’s resistance to this law. It’s widely believed the Congress will not call for non-compliance with the Strikes Act but will offer support to affiliates that choose to go down the non-compliance route.”
Adrian Weir
By Adrian Weir, Campaign for Trade Union Freedom
Successive Conservative Governments have since 1980 passed more and more restrictive anti-union laws that have had as their objective:
- to limit unions’ ability to organise
- to limit unions’ ability to bargain collectively by limiting their ability to organise effective industrial action
- to interfere with union rules books, particularly to limit unions’ political activity.
The Strikes (Minimum Service Levels) Act became law in the summer and continues this trajectory with the House of Lords on 6 December starting to put in place some but not all of the deeply dangerous provisions of the Act.
In summary, the Act as passed in the summer allows the Government to prescribe minimum service levels (MSLs) to be maintained in the event of a strike in six key areas of public service (although some may be privately provided):
- border security
- education
- fire and rescue
- health services
- nuclear decommissioning
- railways.
In these six sectors, in the event of a strike an employer may issue a “work notice” that specifies which workers will be obliged to attend work to ensure that the minimum service is provided. Unions will be obliged to take steps to ensure that their members named in a “work notice” do attend work otherwise an employer may obtain an injunction against the union which could lead to claims for damages or even sequestration. Workers who fail to attend work in these circumstances may be dismissed with no claim for unfair dismissal at the Employment Tribunal.
The Government has chosen to use Regulations to specify at what level the minimum service will be set in each sector or sub-sector to avoid any meaningful debate in Parliament. As we shall see these minimum service levels have been set so high that they effectively remove any right to strike for many of the workers concerned. Such a fundamental restriction of human rights should have been subject to full parliamentary scrutiny rather than by unamendable regulation.
Regulations for border security cover two sub-sets: Border Force and the Passport Office. For Border Force workers the Government has specified that on strike days services must be provided at a level that means they are no less effective than if a strike were not taking place. This must mean that essentially there will be no right to strike in Border Force. The Regulations may not be explicit but there is no other way of interpreting the text although the Government has separately said that about three quarters of the workforce at work may be sufficient to meet the requirement.
For the workers in the Passport Office the requirements are slightly less draconian.
For workers in health services the first target is ambulance crews although we may expect further regulations covering other clinical and non-clinical workers in the future. Although the Regulation breaks the ambulance service into two subsets, emergency services and non-emergency patient transport for both sets of workers the prescription is the same. They will be expected to work to a minimum service level as they would if the strike were not taking place that day.
Essentially, ambulance crews have had their right to strike removed.
The third set of workers to get this treatment from the Government are those on the railway. Again there is a division into various subsets of workers mainly connected with passenger services, freight traffic is not at the moment covered by the Regulations.
Firstly, for passenger rail services the Regulations stipulate that the MSL is set at 40% of timetabled services. Secondly, for those working on the railway infrastructure the MSL is that primary routes must be kept open between 6 o’clock in the morning and 10 o’clock at night. Thirdly, for those working on “light rail” which is underground railways, tram services and so on the MSL is set at 40% of timetabled services.
Perhaps indicative of the lack of coherence in Government thinking with this Act if the London Underground was running at 40% capacity but with the same number of passengers the railway would have to be closed because of severe overcrowding. Even union compliance with the MSL would result in no trains!
The Government is allegedly consulting on MSLs in education. The consultation is focused on primary and secondary schools and FE colleges with two possibilities for a minimum service level.
The first proposal sets out measures to prioritise attendance of vulnerable children/young adults, examination candidates and, the children of key workers. The second, alternative proposal focuses on all primary school children to receive teaching on strike days plus measures to prioritise attendance of vulnerable children/young adults, examination candidates and, the children of key workers.
It will come as no surprise if the Government opts for the second proposal that would effectively remove the right to strike from the majority of primary school teachers.
The House of Lords also approved a statutory Code of Practice on Reasonable Steps to be Taken by a Trade Union when served with a “work notice.” These “reasonable steps” are threefold: (i) a union must identify its members set out in the “work notice” as soon as is “reasonably practicable” (ii) a union must then advise all members so identified not to strike on the days covered by the “work notice” and urge compliance with the “work notice” (iii) a union must then advise its picket supervisors that pickets must not seek to persuade those identified in the “work notice” from not crossing the line and going to work.
Any failure by a union to adhere to these “reasonable steps” will make the strike action unlawful and leave the union open to be sued for damages. All members who persist with what will have become an unlawful strike will be liable for dismissal with no recourse to claim unfair dismissal in the Tribunal.
It is such a shame Labour peers were instructed to support “regret” motions which have no legal effect whatsoever for all three sets of Regulations and the Code of Practice. Although it says it will repeal the Act, Labour just can’t bring itself to oppose this outrageous legislation.
The TUC has called a Special Congress on 9 December to chart the movement’s resistance to this law. It is widely believed that the Congress will not call for non-compliance with the Strikes Act but will offer support to affiliates that choose to go down the non-compliance route. However, it would seem that the Congress will back a call to refuse to tell members to cross picket lines.
The Special Congress will probably call for a national demonstration, as determined by Congress in September, against the Act, probably in Cheltenham to mark the 40th anniversary of the banning of unions at GCHQ.
The movement has been here before of course; a Special Congress was called in 1982 to mobilise resistance to Norman Tebbit’s Employment Act, the second of the anti-union laws. For all of the fighting talk at Wembley here we are 40 years later with a whole panoply of anti-union laws passed in the intervening period ending up with Strikes (Minimum Service Levels) Act, an existential threat to the unions.
In addition to whatever comes out of the Special Congress the movement will need to mobilise on two fronts. Firstly, to go to employers, particularly in public service, and make the case to them not to issue “work notices”, they are not obliged to; it is not a mandatory requirement. Secondly, and most importantly, to campaign among union members, with shop stewards and other workplace leaders, like never before that the Act must be resisted and opposed.
- The Campaign for Trade Union Freedom/Institute of Employment Rights briefing paper on the Regulations and Code of Practice by Keith Ewing & John Hendy can be read here.
- Adrian Weir is Assistant Secretary of the Campaign for Trade Union Freedom. Follow on Twitter aka X @AMJWeir and @ctufevents
