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The Tories' ‘minimum service levels’ legislation could face legal challenge

The government's current proposals to force transport unions to effectively break their own strikes may go against legally binding post-Brexit trade agreements — but we cannot fix this in the courts alone, write KEITH EWING and LORD JOHN HENDY KC

IN an earlier article on the Transport Strikes (Minimum Service Levels) Bill recently introduced by the government, we drew attention to the bizarre proposal that employers and trade unions should negotiate minimum service agreements.

The duty is to apply even where a trade union is not recognised by the employer for collective bargaining. Failure to reach an agreement will lead to the Central Arbitration Committee being summoned to do the government’s bidding by making a minimum service determination.

In this article, we examine another aspect of the Bill, together with the government’s claim that the legislation can be justified by reference to practice in other countries — specifically France and Spain — where it is said minimum service requirements already exist.

The choice of France as a comparator is a poor one: the legislation authorising workers to be “requisitioned” to provide minimum service levels has never been deployed for transport strikes. Italy would have been a more appropriate example.

But returning to the Transport Strikes (Minimum Service Levels) Bill, our concern here is specifically with how its proposals will operate to restrict the right to strike, to which three questions need to be addressed.

First, who will determine which workers are to provide minimum services, and as result be denied the right to strike?

The answer it seems is the employer, who is to be empowered to issue a “work notice” which will “identify the persons required to work during the strike,” and “specify the work to be carried out.”

It is true that the employer will be obliged to “take such steps as are reasonably practicable to consult the union” before giving a work notice, and that it will also be obliged to “have regard” to the views expressed by the union.

Nevertheless, the work notice is to be imposed without securing the “agreement” of the union, contrary to the International Labour Organisation (ILO) requirement — expressed in a complaint by Spanish unions about the “abusive” operation of minimum service levels — that such demands should not be imposed unilaterally.

Secondly, what will be the union’s duty to ensure obedience to the employer’s work notice demand?

Here we find that unions will be required “to take reasonable steps to ensure that the persons identified in the notice do not take part, or continue to take part, in the strike.”

This is a serious obligation for the state to impose and suggests that the union will be obliged to take steps to actively undermine the effectiveness of the strike, including potentially a duty to discipline its own members for refusing to work during a strike they have voted to support.

It is difficult to believe that such a requirement is consistent with ILO Convention 87 and it is difficult to find any corresponding obligation in other countries where minimum service levels operate. In the complaint from Spain referred to above, the ILO emphasised the importance of respecting the right to strike, while in France (and Belgium) only non-union members can be called upon to provide minimum service levels (in sectors other than transport where the obligation has been imposed).

Here the government, in contrast, is proposing that even union members can be requisitioned by a work notice.

Which brings us to the third question. What happens if the workers refuse to be dragooned for strike-breaking, or if the union fails to comply with its duty to take reasonable steps to ensure that they do?

The answer is that the workers will be liable to dismissal and will lose their right to claim unfair dismissal for taking part in a lawful strike, even though the action has otherwise complied with statutory notice and ballot requirements. Workers will also be exposed to whatever other sanctions the employer might impose.

While workers in Italy who fail to comply with minimum service requirements may be subject to minor disciplinary sanctions by the employer, we understand that they may not be dismissed.

Nor are the unions there subject to the draconian liability faced by British trade unions if they fail to comply with the proposed duty to take “reasonable steps” to ensure that workers break the strike.

By virtue of what is being proposed in the Bill, the union will lose its statutory protection against employers looking for injunctive relief to have the union action stopped.

The union will also lose its protection from damages claims by employers, the cap on damages recoverable conveniently increased earlier this year by the then business secretary.

True, the Bill suggests that there will be no liability in damages to passengers or other third parties for breach of the union’s duty to seek to ensure that workers strike-break.

Nevertheless, it may be possible for a passengers’ group or government proxy to employ statutory powers first introduced in 1993. These authorise members of the public to restrain by injunction or interdict strikes affecting “the supply of goods or services to an individual.”

The foregoing liabilities are in addition to new sanctions to be introduced by the Bill.

Although the circumstances in which these sanctions can be applied are currently opaque, it is nevertheless clear that there is a general power of employers to complain to the Central Arbitration Committee and then the Employment Appeal Tribunal.

The latter is to be empowered to issue the union with a “penalty notice” — a form of quasi-criminal fine or “civil penalty,” the amount to be determined by regulations yet to be issued. Presumably the money paid under a penalty notice will go to the government.

The proposed legislation is wholly disproportionate and as suggested thus looks vulnerable to legal challenge because:

• The employer will have the right unilaterally to requisition workers and to determine who works and for what purposes in breach of ILO requirements that there should be adequate safeguards against abuse.

• The proposed duty of the union to encourage/require strike-breaking (which applies to members and non-members alike) appears to be unprecedented and impossible to defend.

• The proposed penalties and sanctions are wildly excessive. A union could be hit for both damages payable to the employer, and, perhaps separately, for a quasi-criminal sanction (a penalty notice).

In these and other respects, it seems likely that the Bill goes way beyond what would be permitted by the ILO and what would be tolerated elsewhere.

As a result, inadequate and unexplained claims about what happens in other countries will not protect the Bill from legal challenge. However, it is in the political arena that these measures have to be defeated.

For although the government may claim a mandate for what is proposed, it has no mandate to break the law or to violate ILO Convention 87, a treaty which it solemnly undertook to respect in the legally binding post-Brexit EU-UK Trade and Co-operation Agreement.

Professor Keith Ewing is president of the Institute of Employment Rights and Lord John Hendy KC is chair of the IER (www.ier.org.uk).

National conference: From Pentonville to P&O: union rights and Tory wrongs — campaigning for free trade unions, Saturday December 3, 11am, Mander Hall, NEU Mabledon Place London WC1H 9BD.

Visit www.tradeunionfreedom.co.uk for more information.

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