House of Commons Second Reading
Strikes (Minimum Service Levels) Bill
16 January 2023
UNISON Briefing
UNISON is the UK’s largest union with 1.3 million members. Our members work in public services, for private contractors providing public services and in essential utilities. They include frontline staff and managers, working full or part time in local authorities, the NHS, the police service, higher education, colleges and schools, the electricity, gas and water industries, transport and the voluntary sector. As a trade union dedicated to tackling exploitation, protecting working people and to promoting decent pay and work, UNISON opposes the proposals contained in this Bill.
The Bill’s proposals:
This Bill gives the UK Government sweeping and widespread executive powers to infringe on fundamental trade union and democratic rights in Great Britain:
- It curtails the right to strike and weakens protections against unfair dismissal and freedom of association.
- It affects large swathes of the labour market where UNISON represents workers including health services, fire and rescue services, education services and transport.
- With little detail or safeguards on the face of the Bill, it gives Ministers blunt powers to set unspecified ‘Minimum Service Levels’ during strike action which undermine existing arrangements.
- It withdraws protections from individual workers exercising their right to strike. This could mean frontline workers face dismissal for taking part in lawful industrial action.
- It makes unions financially liable unless they attempt to force striking workers to go to work which will have a chilling effect on the ability of trade unions and their members to exercise their right to withdraw their labour.
- Imposing minimum service levels will not bring us closer to other European countries. It will worsen the already hostile anti-trade union legal framework in Britain and render us further from social partnership arrangements in, for example, France, Italy or Spain.
The Bill will hand unprecedented powers to the State to dictate industrial relations with little constraint[1]. The lack of detail and legal safeguards for individual workers is alarming. The legal commentator Joshua Rozenberg calls Clause 3 ‘a super-charged Henry VIII clause’. He asks “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?”[2]
The Clause gives the Secretary of State the power to:
“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”.
The Bill’s aims and powers will empower the state to infringe the rights of individual citizens. The Government’s attempts to rush this Bill through Parliament with shortened timescales and minimal time for scrutiny, debate and consultation undermines the role of parliament in providing due diligence and creating fair and reasoned legislation.
Background
There is a crisis in public services – but not one caused by workers. The last decade has seen increasing crises in public services: serious recruitment and retention issues, large real term pay cuts and services which are failing the communities they are meant to serve. Nowhere are these failures more serious than in health and social care. The Care Quality Commission (CQC) has warned the Government of serious recruitment and retention issues in the sector and the impact this was having on service delivery in England. The annual workforce report of Skills for Care released in October 2022 showed that staff shortages increased by 52% up to 165,000 vacancies during 2021/22[3]. These issues are fundamentally driven by low pay in the sector. The CQC’s ‘State of Care’ report[4] last October also highlighted that:
- 9 in 10 NHS leaders have warned of a social care workforce crisis in their area which they expect to get worse;
- Of care home providers who reported workforce pressures, 87% of care home providers and 88% of homecare providers told the CQC they were experiencing recruitment challenges;
The House of Commons Health and Social Care Committee reported last July that the healthcare sector was facing the greatest workforce crisis in their history. The Committee reported that “most depressing for many on the frontline is the absence of any credible strategy to address it” and called for the Government ‘to stop photographing the problem and deal with it’[5].
There are therefore very serious issues for service users that deserve the full attention of the Government. Anti-strike legislation does not address these problems – it will not shorten waiting lists, increase pay, solve recruitment or retention problems or strengthen service delivery. It will only worsen industrial relations and reduce good will. UNISON urges the Government to prioritise critical issues in health and social care rather than attacking the democratic rights of its workforce.
Encouraging employers to sack the very people on whose hard work and goodwill these services depend will not solve these problems – it will make them worse.
Patient safety & life and limb cover
The patient safety justifications used by the Government for their new laws are also contradicted by arguments they themselves made a few months ago.
In November 2022, the Government in its Memorandum on the ECHR implications of the Transport Strikes (Minimum Service Levels) Bill[6] argued that minimum service levels were not necessary in sectors such as health or the fire and rescue service saying “important factors exist to mitigate the impacts of industrial action in those sectors on wider society………For example, in relation to industrial action in emergency and patient care type services, workers need to have regard to the provisions of section 240 of the 1992 Act. This renders unlawful any wilful or malicious breach of contract, where the probable consequences of this will be to endanger life, cause severe injury or expose valuable property to destruction or severe injury. To ensure strike action does not leave employees in breach of this provision, unions in relevant sectors include guidance to their members on their approach to ‘life and limb’ arrangements. ….Unison’s Industrial Action Handbook refers to granting ‘life and limb’ exemptions in certain circumstances, noting consideration should be given to allowing ‘life and limb’ cover for residential homes for children and the elderly, emergency duty social work and emergency meals-on-wheels[7].”
The Government therefore knows that when UNISON’s ambulance workers go on strike emergency cover provisions will be in place. These are drawn up by each Ambulance Trust through negotiations with unions and benefit from the experience and expertise of local union representatives and local managers who have a detailed understanding of the day-to-day operational needs of their services. Agreements on emergency cover at employer level are more flexible than a national agreement as they are tailored to reflect differing union membership distribution in multi-union environments; differing local population needs; variation in anticipated call volume in each Trust; and the spread of job groups involved in the strike in each Trust and workplace. Agreements across all the Trusts have allowed for rapid escalation mechanisms to enable additional staff to be deployed from picket lines and continuous dialogue to respond to changes in call volume during the strike period.
This approach reflects the fact that, as highlighted by the Government in its memorandum[8] , UNISON has an agreed policy on industrial action and emergency cover and agrees the exemption of certain categories of staff from the strike where there otherwise would be a direct danger to the life or limb of any person, in line with existing legislation. This applies in the emergency services in the NHS and similarly in local government to ensure public safety is protected in services such as residential homes for children and the elderly, emergency duty social work and emergency meals-on-wheels.
The use of minimum service levels in other countries
The Government has sought to defend its proposals by saying that MSLs are used in other countries. This argument was called ‘disingenuous’ by Conservative peer Lord Balfe, who highlighted a survey done by the European Trade Union Institute which showed the UK was far more restrictive of trade union rights than other European countries and that even where MSLs existed they were ‘often not used or enforced’.
MSLs in Italy and France are the result of voluntary agreements, not imposed by the State. As highlighted by the TUC, the use of MSLs in other European countries exist within social partnership systems that give more power to workers and trade unions than the UK which already has one of the most regulated systems of industrial action in the world. Employers in the EU are more often willing to accept independent binding arbitration, something UK employers are mostly unwilling to consider. Unions in the UK have to comply with highly complex legislation, including onerous notice and balloting requirements. The complexity of current legislation means that UK unions are at greater risk of legal challenge than their European counterparts, with employers able to win injunctions for minor administrative errors and thereby preventing industrial action from taking place. Additionally, UK unions face greater financial sanctions, recently increased to a maximum of £1 million, for any unlawful industrial action that takes place.
In contrast, industry level collective agreements cover most sectors and the great majority of employees in France with over 95% of employees in France covered by collective bargaining arrangements.[9]
In Spain, workers elect work committees in enterprises with more than 50 workers and trade union sections can be formed in those with more than 250 employees. The works committees and trade union sections also have the right to call strike action and engage in collective bargaining.[10] And the Spanish government has recently implemented a series of progressive reforms to strengthen collective bargaining rights at sectoral level, and tackle temporary work.
In Italy there is widespread sectoral collective bargaining setting minimum standards on a vast range of issues including pay, hours, holidays, maternity leave, sickness absence, training, health and safety, the use of temporary workers, disciplinary rules, union rights, social benefits (welfare), recruitment and job classification. Meanwhile, the Cassa Integrazione Guadagni state-backed fund operates in many sectors to pay workers between 80 per cent and 100 per cent of earnings if their industry is hit by bad times.[11]
In Italy a worker who refuses to attend work under the terms of an MSL can be disciplined by their employer. But this falls short of the dismissal that UK workers are being threatened with if they fail to attend.[12]
Damage to partnership working and industrial relations
The ability of unions to organise lawful industrial action is essential for effective collective bargaining. It ensures that employers take the views of the workforce seriously and engage in genuine and meaningful negotiations. When negotiations are unsuccessful, unions may decide to run a ballot for industrial action. Ballots serve an important purpose by concentrating employers’ minds and demonstrating the strength of feeling amongst the workforce. Taking industrial action is always a last resort for unions. It prompts renewed negotiations and important improvements for working people.
Workers take industrial action at the cost of their own pay. Trade unions and their members are mindful of all these issues when they vote to take strike action and act responsibly when deciding whether to strike. Trade unions will always be mindful of the financial cost, particularly to low paid workers, when taking any form of action.
When the Government passed the Trade Union Act 2016 for Great Britain with its restrictions on trade union activities, UNISON warned that it would damage industrial relationships and increase the number, duration and intensity of strikes. We said:
“Trade union activity provides workers a place to voice their experiences and mechanisms to resolving grievances and disputes. Trade unions therefore play a central role in resolving disputes in the workplace and in avoiding the need for industrial action. Placing tighter restrictions on trade unions is likely to prolong and escalate disputes in the workplace, making them more difficult to resolve swiftly and amicably.”
In the intervening years imbalances of power and inequalities in the labour market have widened, pay has fallen and the UK’s workers face a new era of financial hardship. The Government’s disappointing response is to pass yet more anti-trade union legislation. The results will be similar.
The right to strike is a fundamental one, which should be respected in a free and democratic society. The UK is a signatory to numerous international standards, such as the ILO Conventions, but also include the ICCPR and ICESR which both expressly prohibit legislative measures which would prejudice ILO Convention 87[13]. The UK must also reconcile how the European Convention on Human Rights (ECHR) and its caselaw safeguards the right to freedom of association, including the right to form and join trade unions and the right to freedom of expression without state interference. UNISON does not agree with the government that its proposals do not infringe on Article 11 of the ECHR.
UNISON calls on the Government to enhance social partnership structures and boost tri-partite bodies to improve negotiations with unions and help avoid or quickly resolve disputes rather than attacking workers rights.
UNISON calls on MPs to reject these irresponsible and draconian proposals and legislate to improve workers’ rights, not damage them.
[1] https://www.theguardian.com/commentisfree/2023/jan/12/tories-anti-strike-bill-greater-industrial-upheaval
[2] https://rozenberg.substack.com/p/how-the-work-bill-will-work
[3] https://www.skillsforcare.org.uk/adult-social-care-workforce-data/Workforce-intelligence/publications/national-information/The-state-of-the-adult-social-care-sector-and-workforce-in-England.aspx
[4] https://www.cqc.org.uk/publications/major-report/state-care
[5] https://committees.parliament.uk/publications/23246/documents/171671/default
[6] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1112462/transport-strikes-minimum-service-levels-bill-echr-memorandum.pdf
[7] ibid
[8] ibid
[9] Norton Rose Fulbright (2017). Labour and employment law in France www.nortonrosefulbright.com/en/knowledge/publications/f1d8c939/ten-things-to-know-about-labour-and-employment-law-in-france
[10] Holm-Detlev Köhler (2021). Trade unions in Spain: Structural Conditions and Current Challenges, FRIEDRICH-EBERT-STIFTUNG
[11] De Matteis, A., Accardo, P. and Mammone, G. National Labour Law Profile: Italy, ILO www.ilo.org/ifpdial/information-resources/national-labour-law-profiles/WCMS_158903/lang–en/index.htm
[12] Ewing, K, and Hendy, J. (1 November 2022). “Minimum Service Levels and Transport Strikes – 2” Campaign for Trade Union Freedom www.tradeunionfreedom.co.uk/minimum-service-levels-and-transport-strikes-2/
