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The anti-strikes bill is far worse than we thought

The "Minimum Services" bill is so vague it would allow any passing minister to force as many people into work as they please - eliminating more that just the right to strike. It's among the most dictatorial laws proposed in Britain in recent memory. 

January 14 2023, 09.31am

Before the government had published the full text of the  Strikes (Minimum Service Levels) Bill, critics had already shown that the legislation as outlined was misconceived. It would enable bad employers to threaten workers with dismissal. It would go far beyond anything attempted by any similar government in Europe. It would weaken unions, and make the right to join a union worthless. 

Now that the bill has been published, we can see that none of these fears captured the true authoritarianism of the government’s plans. For this incarnation of the Strikes Bill is different even from the last version of the Bill published by ministers a mere eight weeks ago

The idea of minimum-service level is this. Let’s suppose that a one-day strike was to take place in a bus garage. The government might say that, by striking, drivers inconvenience commuters who need to get to work on a particular workday. Under a minimum-service regime, the union would have to ensure that a certain proportion of the drivers came in and worked on strike days.

This kind of obligation is always likely to weaken the right to strike, and the wider the groups of workers who come within it, the worse it will be. When ministers first raised this legislation, they said it would only cover rail workers. Within the weird, ideological mind-set of the right, you could imagine a justification for limiting the workers’ right to strike - because they were too powerful. That was the government’s excuse for fixating on the ticket staff and rail maintenance workers of the RMT. But the new bill will subject whole sectors of the economy to the same regime - even workers have never been on strike before, or who are underpaid.

The bill chooses six industrial sectors which will be subject to minimum-service regimes. They include all transport workers, all education workers and all health workers. The average daily salary of a bus driver is £86.43 in England. Teaching assistants earn even less, £72.41 per day. No-one could pretend that bus drivers are overpaid. Prone to strike without real justification? Tell that to the members of the RCN trade union, founded 107 years ago, which has struck this winter, for the first time in the union’s history.

The cruelty of a minimum-service regime will depend on how draconian it is in each workplace. Let’s go back to my example of a bus garage strike.

Suppose 500 bus drivers and managers work there. A rule-maker might order that of those 500 normal bus drivers, the union would have to ensure that 50 came in, or 250, or 500 of them. Depending on where you set the level, the consequences of the new regime will vary. If, on strike days, only 50 drivers had to come in, then the minimum-service system would be an administrative burden but one the union might shrug off. (Chances are that the garage employs at least 50 managers who would come in anyway). Such a rule would annoy unions which already suffer requirements about paper ballots, notification, limits on who can strike and why, and who can picket, which are among the toughest of any European states

But if you set the minimum level at 500 of the 500 bus drivers, then you would have required unions to abandon the work they do now, as workers' representatives. In any year, across the economy, there are something like 150 million sickness days. In a bus garage of 500 people, that would equate to an average daily absence rate of about 10 people. If ministers said that the union had to guarantee a minimum-service level of 500 people, that figure would be higher than the employer would expect even on a day with no strikes. The union would stop being a device of the workers and become a new group of busybody managers instructing sick people to work.

One of the vindictive elements of the new bill is that it does not include any sort of limitation clause: it doesn't say, for instance, that  a minimum-service level cannot be set above 5% or 10% of the total workforce. Without that limit, the risk has to be that the levels are going to rise to the point where no union could ever strike without failing to meet the service-level threshold, and making itself vulnerable to court claims that would bankrupt it.

Who decides?

The bill will give ministers the power to draft minimum-service levels. At least, under the original draft bill, there was a pretence that service levels would originate not from ministers but through consultation. That would have worked by compelling transport unions, in advance of any intended strike, to enter into negotiations with the employer about what levels of service the union would guarantee in a strike. If the two sides were unable to agree, they would have to apply to an existing industrial court, the Central Arbitration Committee (CAC), which would listen to both sides before imposing a minimum-service level.

In its new draft, the government has stripped all of that out and replaced it with the idea that ministers have the detailed knowledge required to fix different service levels in not health, education, transport, also fire and border services and nuclear energy.

Ministers do not have the knowledge of industry to be able to distinguish what sort of service levels might be appropriate, for example, in each of the very different parts of a hospital. On top of that, consider the turnover in government and how this would decision-making. The government managed to appoint six different Education Secretaries in 2022. No-one could justify a system in which each new Education Secretary would be able to say, as 2023 wore on, “I know that my predecessors set a minimum-service level but they were too soft on the NEU. To prove my strength to the Daily Mail, I am going to double it”?

There are other unattractive features of this bill. As well as enabling ministers to set minimum-service levels, it even permits them to rewrite laws passed by Parliament. But these three elements alone, the breadth of its bill, its silence as to how many workers will have to work in each workplace, and the excessive power it gives to ministers, together make it a law of which only a dictator could be proud.