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Defend the right to strike: government attacks on democracy and the legal rights of the working class

by Professor Keith Ewing and Lord Hendy KC

I

ON FRIDAY of last week, the House of Commons supported two notable private members’ Bills. These dealt with the rights of hospitality workers to receive the tips left by customers, and with the right of parents to paid neo-natal leave. These measures were, however, wholly overshadowed by two government Bills which in contrast represent an unprecedented attack on the ability of workers to enjoy a decent, secure and dignified working life.

II

The Retained EU Law (Revocation and Reform) Bill will wipe out an entire body of law on the ground only that it has its origins in the EU pre-Brexit. It will not apply to all EU law, but mainly to regulations that were introduced under the European Communities Act 1972.  

This will include working time protections, the right to holiday pay, the protection of agency workers, and measures relating to fixed term and part-time workers.

These rights will automatically come to an end at the end in December, though the government has the power under the Bill to save some these rights from extinction. Part of the controversy about the Bill is that the government has failed to indicate whether, and if so to what extent, this power will be used.  The right to paid holidays in the future now depends on Grant Shapps.

It is he who will decide whether our holiday pay and other rights will survive.  Apart from the fact that it is intolerable that one man should be in a position to determine the future of workers’ rights, it is equally intolerable that this Bill has been introduced despite being in breach of the post-Brexit Trade and Co-operation Agreement (TCA), a treaty which the British government made with the EU.

The latter — which was approved by an Act of Parliament in 2020 — makes detailed provision for the protection of workers’ rights. This includes the “non-regression” clause in Article 387. This means that we cannot “weaken or reduce” employment rights in a way affecting trade or investment. On the contrary, we are expected to “continue to strive to increase their respective labour and social levels of protection”.

III

There is, however, an additional series of obligations in the TCA, whereby all parties commit to “implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted” (Article 399(5)).

The latter guarantee is one which it appears the government never intended to honour, as the Strikes (Minimum Service Levels) Bill makes clear. This will increase to the point of virtual extinction the legal restrictions on the right to strike.  

These restrictions were first introduced by Thatcher in the 1980s so that by 1997 Britain already had “the most restrictive laws on trade unions in the Western world” (to quote a former prime minister).  

Since then the Trade Union Act 2016 imposed further restrictions. And regulations this year permitted agency workers to be hired to break strikes, and the limit on damages payable by trade unions to be quadrupled.  

Under the Strikes (Minimum Service Levels) Bill, Grant Shapps is proposing to give himself an unlimited power to set minimum service levels (MSL) in strikes in six key sectors, including health, fire and rescue, education and transport.  

When such a strike takes place, an employer will have the duty merely “to consult” the relevant trade union over the number of workers and the work required to be done to fulfil the MSL. Thereafter the employer will unilaterally identify the individual workers required to operate the MSL in a daily “work notice”. A worker who refuses to comply will lose unfair dismissal protection if dismissed.   

For its part, the union will be required to take “reasonable steps” to ensure that all members identified in the work notice comply with it. Such “reasonable steps” are not defined. 

May it require a union to instruct relevant members that they must not strike on pain of discipline — or even expulsion? Failure by the union to take “reasonable steps” will render the strike unlawful, with far-reaching consequences.

Thus, if the strike is unlawful, this will have the effect of removing automatic unfair dismissal protection from all strikers, which means that workers will be penalised for an oversight of the union for which they are not responsible. It will also expose the union to injunctions and claims for damages.  

This in turn will give rise to the consequential risk of contempt of court proceedings, heavy fines, and the sequestration of the union’s assets in the event of non-compliance.

Like the Retained EU Law (Revocation and Reform) Bill, the Strikes (Minimum Service Levels) Bill is a clear violation of International Labour Organisation (ILO) standards.   

It is also as a result a breach of the TCA by which the British government and Parliament solemnly committed only two years ago to implement ILO obligations, reinforcing the suspicion that the TCA was an agreement which the Tories never intended to implement.   

IV

An affront to democracy and legality, the Retained EU Law (Revocation and Reform) Bill  and the Strikes (Minimum Service Levels) Bill follow the authoritarian path set by Johnson, Truss and now Sunak.  

As workers react to the cost of living crisis caused by the cartel of oil and gas producers ramping up the price of energy in order to make billions of dollars of extra profit, the government has reacted. 

Not by nationalising, requisitioning or even taxing the corporations who inflict this outrageous extraction of wealth but by attacking the resistance of the working class.   

This year alone, the Police, Crime, Sentencing and Courts Act criminalised political protest. The Elections Act will disenfranchise millions through voter ID. The Judicial Review and Courts Act limits the power of courts to remedy unlawful government action. 

The Nationality and Borders Act may strip citizenship from six million inhabitants. And the government plans to repeal the Human Rights Act to remove fundamental rights. 

Only a fool will think that these measures will be the end of it. The attacks will continue. Earlier this year the Daily Mail carried Shapps’s manifesto for further restrictions. These included allowing the Civil Contingencies Act 2004 to be used to ban strikes.   

The latter would enable regulations to be introduced making organising, calling and participating in a strike a criminal offence.   

All this is a short step from a de facto ban on the right to strike. The attacks on democracy must be stopped.  

Workers’ rights must be respected. Unlawful government action must be restrained. 

The fightback continues. Join us tonight to hear more at Hamilton House, National Education Union, Mabledon Place, London WC1H.  

Defend the Right to Strike!
 

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