Following a sustained period of strike action, the UK government has recently introduced a bill to parliament which would require certain public services to provide minimum service levels during strikes. The minimum service levels bill, officially titled the Strikes (minimum services) Bill 2022-2023, recently passed its second reading in parliament after being voted through by 309 votes to 249 votes. It was introduced by the Business Secretary Grant Shapps and will now go to the committee stage of the process.

 

The bill has been widely criticised by trade unions for being “anti-trade union” as it significantly curbs the power of a trade union to strike effectively. It would allow companies to sue trade unions and would also allow companies to sack workers if minimum service levels are not met.  The government have claimed that the legislation is being introduced “to ensure that striking workers don’t put the public’s lives at risk and prevent people getting to work, accessing healthcare, and safely going about their daily lives”.

 

However, the bill is expected to face legal challenges by trade unions. The TUC, the UK’s national organisation of trade unions, have warned that the bill would worsen industrial relations between the government and trade unions and lead to more frequent strikes. The Labour Party have also promised to repeal the legislation if they get into power.

 

Keep reading to learn more.

 

What are the current trade union laws?

 

The current trade union laws are largely regulated by the Trade Union Act 2016.

 

Some of the most significant aspects of the Trade Union Act 2016 include the following:

 

  • Section 2 requires a turnout of 50% or more union members in a ballot for strike action
  • Section 3 requires that workers in important services (health, school education, fire, transport, nuclear decommissioning and border security) must gain at least 40% support of those entitled to vote in a workplace for a strike to be legal.
  • Section 8 requires a union to give an employer 2 weeks’ notice prior to industrial action
  • Section 9 limits the right to take industrial action after a strike ballot to six months, or nine months if the employer agrees.

 

There is currently no requirement for trade unions to provide a minimum level of service during a strike, however the Boris Johnson government did introduce legislation allowing business to hire agency workers during strike action. This measure has been firmly supported by Rishi Sunak’s government.

 

What are the trade union laws in other countries?

 

The government has justified the introduction of this law designed to restrict the power of Trade Unions in the UK by claiming that other countries in Europe also have legislation designed to ensure a minimum service level. So how do the countries that Prime Minister Rishi Sunak cited, France, Italy, and Spain compare when it comes to minimum service levels?

 

One of the main differences is the notice period required prior to a strike. As mentioned, in the UK this is 14 days. However, this differs in the other countries.

 

  • In France, workers have to give 48 hours’ notice before a strike
  • In Italy, it is ten days’ notice
  • While in Spain, ten days’ notice is required if the strike affects companies in charge of public services

 

In France, Italy and Spain, participating in a strike does not lead to being fired, however following the proposed UK legislation, workers could be forced to work and sacked if they do not.

 

While France has had minimum service level legislation in place since 2008, the levels are agreed through negotiations with trade unions. In contrast, the minimum services levels could give the UK Business Secretary the power to decide statutory minimum service levels across a range of sectors.

 

What are the key aspects of the minimum services bill?

 

The Minimum Service Levels Bill would give the Secretary of State for Business, Energy and Industrial Strategy Secretary the power to determine the minimum levels of service which must be maintained in a number of specified sectors.

 

These sectors would include the following:

 

  • Transport
  • Education
  • Health
  • Fire Rescue
  • Border Security
  • Nuclear Decommissioning

 

In addition to the Business Secretary hoping to form what they call “sensible and voluntary agreements” when it comes to minimum service levels, it would also have the ability to impose minimum service levels should they not be agreed.

 

Employers will be required to identify the number of employees which are required to continue working to ensure that minimum services levels are maintained. This will subsequently be communicated to the trade union via a work notice and such workers will be deemed “necessary workers”.

 

The trade union must take “reasonable steps” are ensure that the relevant employees who have been identified in the work notice comply with it. If they do not do so, the trade union risks losing their immunity from being sued under section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). In addition, any workers who continue to strike despite being identified as a necessary worker will lose their protection from automatically unfair dismissal. This has led to some criticism that the government have gone from “clapping nurses to sacking nurses”.

 

Our thoughts

 

While the intention of the bill to ensure that public services have a minimum service level may well be a noble idea, it is questionable as to whether it will achieve its intentions, as well as whether it will hold up to legal challenges. Should the bill go through in its current form, it is likely that it will be subject to legal challenge by trade union on the grounds that it breaches Article 11 of the European Convention on Human Rights (ECHR). This is itself codified in UK law through the 1998 Human Rights Act.

 

The right to strike is enshrined in Article 11 of the ECHR, which gives the right to “freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”.

 

However, there is scope in Article 11 for restrictions to be placed on the right to strike where the restrictions are prescribed by law and “are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” The interpretation of whether the legislation is “necessary” is therefore largely what its legality will hinge on. It is likely that some sectors, such as health, will be more enforceable than others.

 

It is also a substantial change to the way in which industrial action is able to take place across the entirety of Britain, and calls into question what the government calls their commitment to the right to strike by forcing workers to work on strike days.

 

Have questions about this article? Get in touch today!

 

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

 

Email us on info@lisaslaw.co.uk.

 

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

 

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