The government has stolen the right to strike from millions of workers

The conscription of workers is an abuse of state power and the government is openly pursuing anti-worker policies.

Unite balloons being flown at a TUC march

In dystopian Britain, millions of workers have lost the right to strike. The right was acquired to counter employers exploiting workers. This helped to improve workers’ pay, working and living conditions and accelerate economic growth. Ever since the late 1970s, workers’ rights have been under attack and former Prime Minister Tony Blair once boasted that the UK has the “most restrictive laws on trade unions in the Western world”.

The draconian Tory law

The draconian Strikes (Minimum Service Levels) Act 2023 marks a new phase. Despite lawful strike ballots millions of workers will be conscripted to work during a strike. This week, despite considerable opposition, the Tory government has enacted legislation specifying minimum service levels (MSLs) that striking workers must provide. The MSL for railways is 40% of the usual train timetable. For ambulance workers, it is around 80% of the staffing level. For border security services at airports, ports and elsewhere 75% of the staff must work during a strike. These requirements do not apply to UK nations with relevant devolved powers. Further MSLs will be issued for other sectors.

The MSLs are accompanied by a Code of Practice, specifying the “reasonable steps” (whatever that means) that trade union must take in ordering their members to cross picket lines and break strikes. The workers refusing to obey will be sacked without any redress and trade unions can be sued for damages by employers.

Millions of workers will not be able to take strike action. For example, in the case of trains, 40% of MSLs can’t be provided without signalling, ticketing, platform, cleaning, security and other staff. They have effectively lost their right to strike.

The mechanics of the law are that a Minister decides the MSLs needed during a strike and ask employers to comply. Employer must select the workers needed to comply with the order and send their names to the trade unions that organised the strike. The union must implement the work order.

To call a strike, a union must give a 14 day notice to the employer. However, the employer is only required to give trade unions 7 day notice to ensure that selected employees work, and has another four days to vary that list. This effectively leaves trade unions with just three calendar days to comply with the non-negotiable order.

From the mass of employee names supplied, a union must determine whether they are its members. It must then send emails (if it knows addresses) and/or first-class letters (will Royal Mail deliver in time?) to inform the members so listed. This could run into thousands. For example, recently 20,000 members of the National Union of Rail, Maritime and Transport Workers (RMT) took strike action. The striking members selected by the employer must receive communication from the union before the strike action i.e. within three days (see above). The union must “encourage them to comply with the work notice”. Such letters no doubt would be carefully crafted by lawyers, at considerable expense to trade unions.

The selected union member “must carry out the work during the strike or could be subject to disciplinary proceedings which could include dismissal”. There is no automatic right of appeal for unfair dismissal or compensation.

Without any consultation the Act has changed the law on picketing. Trade unions may have to appoint “picketing supervisors”. As hundreds of railway stations could be picketed, this would mean appointing hundreds of picketing supervisors or other officials. Paragraph 33 of the Code of Practice says ”the picket supervisor (if present) or another union official or member to use reasonable endeavours to ensure that picketers avoid, so far as reasonably practicable, trying to persuade members who are identified on the work notice not to cross the picket line at times when they are required by the work notice to work.”

This is followed by paragraph 34 stating that: “Unions are not required to notify the picket supervisor of the names of union members identified in the work notice”.

The person selected by the work notice may wave the letter from the union to cross the picket line. The onus is on the union to find a solution.

Unions must not offer any inducements to members selected to work during a strike. If employers decide that trade unions have not taken “reasonable steps”, which is not fully defined, they can sue the union for damages. Inevitably, prolonged litigation will follow.

Anti-worker policies

The conscription of workers is an abuse of state power and the government is openly pursuing anti-worker policies. It should be noted that there are no minimum service levels that water, gas, electricity, rail, banks, insurance and other companies, or government departments must provide to the people. The legislation empowers ministers to impose MSLs on trade unions and striking workers only.

International law, signed by the UK in 1948, requires dialogue between trade unions and employers to set the level of the minimum service. The UK Act, however, excludes dialogue between those parties in setting the level. The Minister alone sets MSLs. Historically, UK trade unions have voluntarily agreed minimum service levels (MSLs) with employers in key sectors, e.g. essential maintenance, but the government has chosen not to build upon that.

Unlike France, Italy, Spain and other European democracies the right of British workers to take strike action is not protected by constitutional or other means. In those countries, workers can’t be sacked for taking strike action. British workers denied the right to take industrial action will struggle to bring intransigent employers to the negotiating table, and their living standards will plummet which will then have knock-on effect on economic activity.

The legislation is underpinned by a threat of dismissal of workers and lawsuits against trade unions. But how will the government or employers find a readymade supply of train drivers, ambulance drivers, nurses and doctors?

Employers can even flout the law. Last year, P&O Ferries illegally sacked 800 workers. The then Prime Minister Boris Johnson said: “P&O plainly aren’t going to get away with it”. The government did not enforce the law.

The legislation does not specify any “reasonable steps” that employers must take to resolve industrial disputes. A macho employer could select more workers than is “reasonably necessary” for the purpose of providing minimum service levels, and humiliate unions to create conditions for lawsuits. The work notice may contain inaccurate information but unions cannot challenge employer’s specification of “reasonably necessary” number of workers needed. Trade unions with limited resources will not be in a position to challenge the might of global corporations, and those doing so face the likelihood of high legal costs and eventual bankruptcy which is perhaps the main aim of the Tory law.

No doubt, aggrieved workers will suspend co-operation with employers and refuse to work overtime or on rest days or out-of-hours, or take sick leave. This will sour industrial relations.

There is also a dilemma for employers. Suppose following Ministerial edicts they choose not to issue work notices. If so, they could leave themselves open to lawsuits by service users for failure to provide minimum service levels.

The leadership of the Labour Party has pledged to repeal the Strikes (Minimum Service Levels) Act 2023 as it is unworkable and infringes basic human rights.

Prem Sikka is an Emeritus Professor of Accounting at the University of Essex and the University of Sheffield, a Labour member of the House of Lords, and Contributing Editor at Left Foot Forward.

Image credit: Garry Knight – Creative Commons

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