24/01/2023

GB Strikes (Minimum Service Levels) Bill

The Government has just published the controversial Strikes (Minimum Service Levels) Bill In the Government’s Press Release of 10 January 2023 it states that the new laws will allow government to set minimum levels of service which must be met during strikes to ensure the safety of the public and their access to public services.

This Bill is much wider than the previous Transport Strikes (Minimum Service Level) Bill. However it only extends to England and Wales and Scotland not Northern Ireland.

It gives the Secretary of State (SOS) very wide powers to specify minimum service levels in the following categories:

(a) health services;
(b) fire and rescue services;
(c) education services;
(d) transport services;
(e) decommissioning of nuclear installations and management of radioactive waste and spent fuel;
(f) border security.

The Press release stated that the government will first consult on minimum service levels for fire, ambulance, and rail services. This is in recognition the severe disruption that the public faces when these services are impacted by strikes, especially the immediate risk to public safety when blue light services are disrupted.

However, in the other sectors such as education, other transport services, border security, other health services and nuclear decommissioning it is anticipated that these levels will in the first instance be set by agreement between the employer.

There the government expects parties in these sectors to reach a sensible and voluntary agreement between each other on delivering a reasonable level of service when there is strike action. However, the Bill gives the government the power to step in and set minimum service levels should that become necessary.

Where minimum service applies, employer may give a “Work Notice” to a trade union.

Work Notice must:

• identify persons required to work during the strike to secure that minimum service levels are provided.
• specify the work to be carried out by them to ensure minimum service levels provided.
• not identify more persons than are reasonably necessary.

Employer must not have regard to whether person is / is not trade union member when identifying them to work

Before giving notice employer must:

• consult union about number of persons and work to be done
• have regard to any views expressed by unions

There will be no protection if union fails to take reasonable steps for all identified in work notice to work. The remedy it appears is for employer to sue the union for damages (equivalent to loss sustained by the employer if the union had taken the reasonable steps.

Employees protection against being automatically dismissed will only apply if employee has not been in breach of Work Notice.

COMMENTARY

The Bill is very wide reaching and lacking in any detail about how the SoS will determine what is the threshold for the ‘Minimum level.’ It has been heavily criticised with the Regulatory Policy Committee issuing a statement on the lack of an impact assessment for the Strikes (Minimum Service Levels) Bill

There was some speculation that this was to maintain safety but no mention of safety in the Bill. Arguably each of the categories could be defined very widely and encompass both private and public sectors.

The Commons Library Research Paper on the Strike Bill is a very helpful document setting out the factual and legal background, comparing the UK to other jurisdiction and summarising the commentary on it.

We can certainly foresee this Bill as being challenged as an infringement of the right to strike and we do not foresee any similar measures being coming in in Northern Ireland.