The Strikes (Minimum Service Levels) Bill published yesterday by Grant Shapps, the business secretary, is something of a hostage to fortune. It tells us little about how the legislation is intended to work. It also tells us that the government itself has little idea of how the legislation will work.
Why otherwise would ministers be seeking a prospective Henry VIII power, allowing them to amend future acts of parliament? The power would apply to any “consequential” legislation that may be passed in the current session, subject only to the affirmative resolution procedure in relation to primary legislation and the negative resolution procedure in relation to secondary legislation.
“It is possible that not all of the necessary consequential amendments have been identified in the bill's preparation,” the government says. That’s a lame excuse for a prospective power, particularly as we are told that this bill is not being rushed through parliament.
The 1992 act
To understand what the bill would do, we must start with the Trade Union and Labour Relations (Consolidation) Act 1992. This legislation does not give workers the right to strike, as such. Instead, it provides protection for trade unions and employees in increasingly limited circumstances.
If unions call strikes in accordance with the law, employers can’t sue themfor inducing workers to break their contracts of employment. Staff who would otherwise face the sack for going on strike are protected from dismissal.
The current legislation includes detailed provisions requiring unions to ballot their members before taking industrial action. Section 234A of the 1992 act sets out the information that a union must now give an employer — which includes categories of worker, workplaces and staff numbers — for a strike to be protected by the act.
The new bill
The minimum service levels bill would insert six new sections after section 234A. These are headed:
234B Power of secretary of state to specify minimum service levels
234C Work notices relating to minimum service levels
234D Work notices: disclosure of information
234E Work notices: no protection if union fails to take reasonable steps
234F Regulations: consultation and supplementary
234G Interpretation of terms relating to minimum service levels
The bill introduces some novel concepts. Let’s look at them.
A work notice is a notice in writing given by an employer to a trade union in relation to a strike that the union has previously notified to the employer.
The work notice will specify that levels of service are to apply in relation to a strike.
Levels of service are set by ministers under minimum service regulations.
Minimum service regulations apply only to relevant services.
Relevant services will be defined by ministerial regulations. But they must come within one of these categories:
fire and rescue services;
decommissioning of nuclear installations and management
of radioactive waste and spent fuel;
A strike does not include an overtime ban or a call-out ban.
The work notice must identify the workers who are required to to work during a strike so that the levels of service specified by the minimum service regulations are met. The work notice must also specify the work that these workers must carry out in order to provide those levels of service.
A work notice must not identify more people than reasonably necessary to provide the minimum levels of service.
The employer must consult the union about the number of people to be identified in the work notice. Individual work notices can be issued for individual days, even if the strike runs for several days.
It will not be a breach of confidence or data protection laws to identify individual workers by name. However, the employer must have no regard to whether or not an individual worker is a union member.
An employee who fails to comply with a work notice may be sacked.
If the union does not take reasonable steps to ensure that the members who are identified in the work notice comply with it, the union will lose its protection against being sued. However, damages would be limited to the losses caused by the union’s failure to ensure compliance with the work notice.
Before making minimum service regulations, the secretary of state
”must consult such persons as the secretary of state considers appropriate”. These regulations must be approved by both houses of parliament.
The bill would apply to England, Wales and Scotland. It would take effect immediately after it has been passed and apply to strikes that had already been called.
What we don’t know
We don’t know what the minimum service levels will be in each service. Indeed, we don’t even know which services will be brought within the legislation: broad categories such as health and education cover many different types of work.
Shapps told MPs that the government was “introducing legislation focusing on blue-light emergency services and on delivering on our manifesto commitment to secure minimum service on the railways”. But the bill extends to other services that the government says are “critical to keeping the British people safe and society functioning”.
We don’t know how minimum service levels will be calculated or expressed. We don’t know how it will be possible for employers to translate service levels into specific work notices addressed to individual employees.
What the government doesn’t know
The government doesn’t know what changes it will have to make once this bill is passed. Under clause 3, the secretary of state would be able to make regulations that
amend, repeal or revoke provision made by or under primary legislation passed before this act or later in the same session of parliament as this act.
This is a supercharged Henry VIII clause. Why should MPs or peers pay any attention to any related legislation that may be brought before them later in this session when they know that, unless they object, a secretary of state may simply amend, repeal or revoke it?
Anyone seeking answers to these questions will gain little assistance from what Shapps told MPs yesterday. His oral statement was made before the bill was published and so he said nothing about its specific provisions.
Indeed, one of his responses was positively misleading. Asked by the Labour MP Mike Amesbury how many teachers, ambulance workers, social workers and rail workers would be sacked for “standing up for their right to strike and withdraw their labour”, he replied:
The answer to the question is none. I have not seen a single police officer sacked or a member of the army sacked, and they have no-strike deals.
But this is a false comparison: strikes by the police and troops can never be lawful. The bill makes removes protection from workers who are currently allowed to strike without losing their jobs. An amendment to section 238A of the 1992 act introduced by paragraph 8 of the schedule to Shapps’s bill makes clear, according to the government’s explanatory notes,
that there is no automatic protection from unfair dismissal for an employee who is identified in a valid work notice but participates in the strike contrary to that work notice, provided that their employer has (before the strike day) given the employee notice of the work specified in the work notice that they are required to carry out on the strike day and a statement that they must comply with that work notice.
How practical is all this?
The government is confident that the bill is compatible with the human rights convention. Article 11 says that
Everyone has the right… to form and to join trade unions for the protection of his interests.
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety… or for the protection of the rights and freedoms of others.
However, the legislation may founder on its technicalities. Shapps hopes to reach voluntary agreements with workers in various sectors. But, as the government accepts, the detail required in setting relevant service levels for each service will be significant. “For example, the level of service in the transport sector might need to have regard to the service requirements at different times of day and at weekends or bank holidays,” it explains.
We can be sure that the first work notices will be challenged in the courts. Perhaps the government’s reforms would be more effective if they were less ambitious.
Update 16 January: the bill was given a second reading by the Commons. Earlier, this blog was quoted by the deputy leader of the opposition, Angela Rayner:
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The employer would otherwise have a claim in tort. Tort is a civil wrong, occurring when a person causes someone else to suffer loss or harm, for which the courts can provide a remedy such as damages or an injunction.
Legislate in haste, repent at leisure
How would the employer legitimately select the employee to perform the selected service without breaching the Article 11 right of the employee?