The Strikes Bill will put the UK at odds with much of Europe
The Strikes (Minimum Service Levels) Bill is being pushed through Parliament with some speed. It shows the government’s determination to prove it is dealing with strikes in the public sector.
In fact, what it does is to introduce powers for government ministers to set a minimum service level in designated sectors; including health, fire and rescue, education and transport to name a few.
The minimum service level will be made by the relevant minister via “minimum service regulation”. Employers would then issue work notices to a trade union taking planned strike action. This would identify workers required to work during the strike in order to reach the minimum level of service set by the minister. The notice must not list more people than “reasonably necessary” to provide the level of service. Under the bill, trade unions are obliged to take “reasonable steps” to ensure their members comply with the work notice. This is causing real concern among trade unions and their relationships with their members.
There is no provision for negotiation with trade unions
The bill will restrict the protection of trade unions from legal action, as well as removing the automatic protection of employees from unfair dismissal if the minimum services were not delivered.
The government has said that the introduction of a minimum service level brings the United Kingdom “in line with many other modern European nations, such as Spain, Italy, France and Ireland”. Is that the case? Well yes and no.
First, there is no such thing as a constitutional right to strike in the UK. Strike action in the UK is seen as unlawful unless trade unions jump various hurdles to ensure the strike is lawful. One slip and the employer can seek an injunction to stop the strike.
By contrast, in most European states there is a right to strike and so the starting point of the law is that strike action is lawful: any limitation must be narrowly drawn. This is consistent with the view of the International Labour organisation (ILO). It recognises there can be limits on strike action in essential services but emphasises that “the service required must genuinely and exclusively be a minimum service” and it must be “strictly necessary to meet the basic needs of the population … while maintaining the effectiveness of the pressure brought to bear” by the strike. The proposed UK bill does not meet this standard.
Second, in most European countries which have legislated for it, minimum service levels involve an agreement between trade unions and employers. By contrast, the UK bill introduces a power for ministers to set a minimum service level. There is no provision for negotiation with trade unions. Employers must consult with the trade union before issuing work notices, but do not have to negotiate or agree on which workers can be required to work. The bill does not distinguish between union and non-union workers.
Third, in more than two thirds of European countries, a dispute between a trade union and an employer over a minimum level of service should be resolved by either an independent body or through arbitration. In some states, notably Germany, the dispute can ultimately be resolved by a court. The UK bill does not indicate how a trade union can challenge a minimum service level or a work notice and does not provide a role for an independent body, such as the Central Arbitration Committee, in dispute resolution.
So, the UK bill, in claiming to be European, is in fact cherry picking those European rules it likes but not the wider protections offered by the rules, such as negotiations with trade unions and a power to go to court. It is in fact an un-European, European, bill.
Catherine Barnard, professor in European Union law and employment law at the University of Cambridge and deputy director of UK in a Changing Europe. For further reading on the bill you can access the research via this link.
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