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The Strikes (Minimum Service Levels) Bill Explainer

Trade unionists across the UK face already some of the most restrictive anti-union laws in Europe. Deindustrialisation and decades of trade union demonisation culminated in the Trade Union Act 2016 which Alan Bogg, Professor of Labour Law at the University of Oxford, described as authoritarian. This regressive trend continues with the announcement of the Strikes (Minimum Service Levels) Bill on 30th January.


This passed through the House of Commons with MPs voting 315 to 246 to send the bill, which would guarantee minimum service levels during industrial action, to the House of Lords where it will be debated and scrutinised.

What are Minimum Service Levels?

On 10 January 2023 during the second reading on Monday 16 January, the then Business Secretary Grant Shapps introduced new anti-union laws designed to undermine the right of firefighters, paramedics, rail workers and other workers from taking legal, legitimate strike action in defense of their pay and work conditions. Minimum service requirements impede trade union members’ right to strike and limit the very effectiveness of strikes - they do this by imposing minimum levels of cover that are legally required. These measures could lead to striking staff losing their employment protections and ultimately being sacked. Ironically, it is entirely possible that under this legislation if shop stewards/branch officials were to not cross a picket line there would be grounds for dismissal.


Workers will be vulnerable to dismissal during a strike in any services of the government’s choosing within six sectors:

  1. Health services

  2. Fire and rescue services

  3. Education services

  4. Transport services

  5. Decommissioning of nuclear installations and management of radioactive waste and spent fuel

  6. Border security

How does this effect how Trade Unions operate?

It comes as the government is accorded a great deal of latitude through secondary legislation – so-called Henry VIII powers — to retain or abandon former EU legislation as part of the Revocation and Reform bill. This new legislation will mean that the Secretary of State will be able to decide statutory minimum service levels for a string of public services under the terms of a new anti-strike bill.


Concerningly, no details for what level of minimum services would be required have been given and this ambiguity means that under the law, the business secretary would be granted the powers “to make regulations providing for levels of service where there are strikes in relevant services”. The bill in name details how employers must consult with unions on what this means in practice before a strike in the hope they reach voluntary agreements on minimum safety levels. However, in line with the spirit of the bill, if voluntary deals cannot be reached the government would have the power to unilaterally impose the arrangements.


What are the government’s criticisms of the Trade Unions?

The government whilst maintaining that they believe in the right to strike have posited that they are introducing this legislation to curtail the unions in order to protect the lives and livelihoods of the British people. They have singled out unions representing ambulance crews, who have participated in industrial actions, for not setting out national minimum service levels.


However, there is a deliberate misrepresentation of how emergency workers already have sufficient arrangements in place to ensure public safety such as paramedics responding to Category 1 calls (i.e. cardiac arrest).


Moreover, this is not by chance but by design as ambulance staff stagger their industrial action over the course of the day to cover gaps, with none walking out for more than 12 hours and many doing so for no more than six hours. Historically, Trade Unions at a local level have run emergency cover during strikes based on local agreements e.g., the Camden Social Work Strike of 1992 when social work staff of about 150 went on strike in an attempt to win better pay.


Again, whilst minimum service levels were ensured on this NALGO (now UNISON) endorsed strike again there were subject to union busting tactics. The local authority paid more than £100,000 to a recruitment agency to head-hunt temporary social workers - reminiscent of the 2022 P&O dispute. It is clear that these policies being called for are already in place without the need for harsher legal penalties.

The chart above from the ONS displays the working days lost due to strike action each year from 1970 to 2019 (the last finalised annual figure). It exposes the true scale of industrial action that took place from the early 1970’s to the mid 1980’s under Thatcher compared to relatively no working days lost in the noughties.

Furthermore, it is clear that the current amount of working days lost (last recorded figure is Nov 22’) is again relatively very low indeed not even matching the highest level since 1990 which was in 2012.


Hence, the reaction of the government to current strike action is wholly disproportionate to the scale of what they deem a ‘problem.’ It only serves to highlight the current government inexperience in relation to industrial relations and how this is a poorly executed strategy borne out of political expediency and unfortunately not one grounded in reality.


But don’t they have minimum service levels in Europe?

The government are keen to mention that our European neighbours require some sort of minimum service provision. However, in Germany, France, Italy, and Spain the right to strike is guaranteed by their constitutions.


In Italy, minimum service arrangements are set out in collective agreements between unions and employers. In Spain, where minimum service levels imposed can be excessive, they are challenged via the judiciary.


Hence, workers on the continent work in an industrial relations climate with more collective bargaining and negotiation. This more collegiate approach instills more trust between workers and bosses. However, irrespective of the state of industrial relations in Europe we should as a nation not engage in what has been a race to the bottom – a Delaware effect.


Inflation and Public Sector Pay

Like many workers, public sector workers are being forced to use food banks and choose between heating and eating. The government has introduced these proposed laws when workers are facing an inflation rate currently more than 10% and expected by the Westminster government’s own watchdog the Office for Budget Responsibility (OBR) to remain high into next year.


The government has been hawkish in imposing a two year pay freeze for 2010 and 2011 on all public sector workers and between 2012 and 2017 it imposed a 1% pay cap. The inflation we see is due to extraneous factors such as the War in Ukraine and coming out of the pandemic which saw hikes in energy prices. What’s more, annual food inflation reached 16.8% in December 2022 due to a shortage of supply of grain. While the government frames workers demands for higher pay as the cause of this headline figure the real reason can be attributed to these aforementioned inflationary pressures. The government has also made the claim that ‘giving in’ to the unions demands would result in an inflationary wage spiral. However, when we see record breaking profits, such as the £45.2bn that ExxonMobil just announced, this is a very hard pill for the public sector to swallow.


The Institute for Fiscal Studies (IFS) says that an inflation-matching pay award to all public sector workers would cost £18 billion when the government claims it could cost £28bn – they are ignoring the tax returned from higher wages. The day after Grant Shapps brought forward his new anti-union laws, the Westminster Public Accounts Committee revealed that an eye-watering £42 billion in unpaid taxes are owed to the HMRC.


Separately, the Wealth Tax Commission report, A wealth tax for the UK (2020) estimated that more than £30 billion could be raised by the government to fund this public sector pay increase. This flies in the face of the fiscal rectitude the government is championing when there are opportunities to increase tax revenue from those at the top, private sector pay increases outstrips that of the public sector and shareholders are enjoying lucrative dividends cheques because of record breaking profits.


Reaction

Despite the government alleging the Bill has International Labour Organisation (ILO) backing and the Government’s regulations are compatible with ILO rules, minsters have admitted the Government has had no contact with the ILO about the Strikes (Minimum Services Levels) Bill. Furthermore, only last week as the World Economic Forum in Davos, ILO director general Gilbert Houngbo reportedly expressed concern about the Government’s plans.


The Trades Union Congress warned unions would “fight every step of the way” to block the government’s legislation, which aims to ensure public services function adequately during strikes.


Mick Lynch, General Secretary of the RMT rail union, called the bill “an attack on human rights and civil liberties which we will oppose in the courts, parliament and the workplace”.


Sharon Graham, General Secretary of Unite, called it “another dangerous gimmick from a government that should be negotiating to resolve the current crisis they have caused”.


Government Reaction

“The government has a duty to the public to ensure their safety, protect their access to vital public services and help them go about their daily lives,” said the government.


“The government will always protect the ability to strike, but it must be balanced with the public’s right to life and livelihoods.”


Conclusion

After a decade of austerity and this cost-of-living crisis we find ourselves in, with living standards in free fall, this Bill attempts to take away the very leverage that the Public Sector has: the right to withdraw their labour. The government is attempting to put public sector workers against those who are also facing pay stagnation in the private sector. The argument isn’t to then demonise those public sector workers who are unionised but instead to collectively demand better working conditions and an increase in pay in line with inflation. The COVID-19 pandemic demonstrated the critical role the public sector played in navigating this once in a century crisis. The government awarded them with claps but when they ask for something in return, they are being left empty handed. This new Bill goes even further and will effectively hogtie them before they even come to the negotiating table.


Trade Unions play a vibrant role in civil society and are the lynchpin of the labour movement. The reason we have maternity leave, a minimum wage, child labour laws and these statutes that we hold as a prerequisite are because of the trade union movement. This concerted attack on the right to strike is an attack on us all. The inevitable processes of globalisatation and modernisation should not be seen as an opening to dimmish the role of the worker but rather an opportunity to forge a more sustainable and ethical future between capital and labour. In this spirit, employers should be considering employee representation on boards, committing to regionally designated living wages, moving towards a 4-day week, providing safer working conditions and practices, and exploring employee ownership models.

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