CLAIM:
“Tonight we’re voting to restore the balance between the right to strike and the public’s right to know that critical services are protected. It brings us in line with other European countries.” – Tory MP Oliver Dowden on Twitter, January 16 2023
DOORSTEP ANSWER
With inflation running at over 10%, no government can legally compel workers to work, which is what the new “minimum service” legislation proposes. Better to negotiate than play ideological games.
WHO IS OLIVER DOWDEN?
A Cambridge-educated lawyer, Dowden previously worked for a controversial New York public relations firm best known for representing big tobacco and the US asbestos industry. Initially a Remainer, Dowden soon switched to backing Boris Johnson to replace Theresa May, then dumped Johnson to become an early backer of Rishi Sunak. He’s now a senior minister in the Cabinet Office charged with driving the Government’s political and policy agenda, including confronting the trades unions.
The Sunak government introduced new legislation into the Westminster Parliament aimed at imposing so-called “minimum service levels” to be maintained by striking trades unions in the ambulance, fire and rail sectors. This legislation proposes to make unions and striking workers provide a basic level of service (as determined by the employer) and subject to penalty (possible breach of contract and possible financial indemnity) if they refuse. It is difficult not to see this legislation as a political and legal minefield.
CURRENT LEGAL SITUATION
In Britain, trade unions have never been recognised as legal persons with entrenched legal rights, as are commercial companies. Instead, over the decades, unions have been granted varying degrees of immunity from prosecution for taking industrial action in defence of their members. No Labour government has sought to change this situation by giving trade unions a constitutional legal standing. In recent decades, many existing, hard-won common law immunities have been removed by successive Tory legislation. It is against this background we need to assess Dowden’s comments.
Under Article 11 of the European Convention on Human Rights (which still holds sway in Britain despite Tory efforts to the contrary) workers have the right to freedom of association, including the right to join trades unions. But industrial action, including striking, is only legal if it follows specific rules laid down in the Trades Union and Labour Relations (Consolidation) Act of 1992.
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These rules include being a union recognised in the workplace, balloting union members and giving reasonable notification to employers. The Act applies equally in Scotland as industrial relations matters and employment law remain powers reserved explicitly to Westminster. Note that a strike by workers not in a union is a breach of contract and can lead to sacking. There is no absolute right to strike in Britain.
Last September during a Commons debate, Jane Hunt, the Conservative Under Secretary for Business, Energy and Industrial Strategy, confirmed that the Government has no intention of devolving employment rights to Holyrood. Her reasons included the claim that a two-tier system of employment rights would disadvantage employers and “suppress the free flow of labour between England and Scotland”. By the latter, presumably, is meant that if employees in Scotland had stronger rights it would attract workers northward but not southward.
CRIMINAL PROSECUTION
The existing 1992 Act imposes significant theoretical penalties for breaking trade dispute rules, which undermines Oliver Dowden’s implicit contention that the law is somehow imbalanced or favours striking workers, especially in the public sector. Under the current 1992 Act (Part V), a striking worker deemed to have broken their contract of service in a way that results in danger to human life or to “valuable” property is committing a criminal offence and actually can be imprisoned. This is a draconian threat that hangs over any public sector worker in the caring services. It is worth noting that personal injury and damage to property are equated in the legislation.
DO MINIMUM SERVICE LEVELS WORK?
Limitations on the right to strike in the public sector, including so-called minimum service rules, are common throughout Europe. On this basis, the Conservative government (and Dowden) argue that the UK is merely catching up on the rest of the continent – a rather rare point of reference for the Tory Party.
However, the situation is not quite as it seems. In France, for instance, no government has actually attempted to force striking transport workers to meet minimum service requirements by requisitioning employees to return to work. To do so would likely lead to a political crisis. Again, in Italy, the penalties imposed on striking workers for failing to meet minimum service levels have aften proved derisory.
Against this reality, it is worth noting that the Conservative government is attempting to include in the new legislation the concept of a “statutory work notice” which will “identify the persons required to work during the strike,” and “specify the work to be carried out.” Quite how this will be enforced is difficult to see. Possibly, a striker could be dismissed for failing to comply with the order, but that hardly ensures continuity of the service. Equally, fining a striking worker for non-compliance won’t see more ambulances or trains driven. It is difficult not to conclude that the new legislation is more about intimidation and playing to the Tory base than about resolving disputes.
POSSIBLE LEGAL CHALLENGES
The UK is party to the International Labour Organisation Convention 87, which provides the basis for international law covering labour law and disputes. Ironically, the Conservative government under Boris Johnson solemnly reaffirmed its commitment to ILO 87 in the EU Brexit treaties. There are reasonable grounds to conclude that the draft new minimum service legislation is in violation of ILO 87.
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For one thing, the new legislation seems wholly disproportionate. An employer will have the right unilaterally to requisition workers and to determine who works and for what purposes. This is almost certainly in breach of ILO statutes that there should be adequate safeguards against employee abuse. Again, proposed penalties and sanctions are excessive. A union could be hit for both damages payable to the employer and criminal sanctions. Expect multiple legal challenges to the law if it passes in its current form.
FACT CHECK RATING
Another zero for the Government. Unless, of course, those Cabinet ministers refusing to sit down and discuss with the unions are also subject to minimum service rules.
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