Strikes (Minimum Service Levels) Bill

(Limited Text - Ministerial Extracts only)

2nd reading
Tuesday 21st February 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, the public expect the essential services that they pay for to be there when they need them. This Bill aims to maintain a reasonable balance between the ability of workers to strike and the rights and freedoms of the public to access essential services during those strikes.

The latest ONS data shows there were 843,000 working days lost because of labour disputes in December 2022. This brings the number of strike days lost between June and December to nearly 2.5 million, which is the highest since 1989. Industrial action is disruptive for everyone: for those who rely on those essential services to get to work or care for their families, for the NHS trying to get the backlog down, and for schools trying to recover lost learning after the pandemic. It also, of course, vitally impacts on our local businesses, whose sales and productivity suffer.

While we are pleased that voluntary derogations were eventually agreed for the strike action in health sectors in December 2022 and early this year, I am afraid that is not guaranteed to be the case for future action or in all sectors. Indeed, during the ambulance service strikes in December and January, some derogations were not agreed until immediately prior to the strike action, leaving employers with sometimes only hours, not days, to implement full contingency plans. This creates a great deal of uncertainty for everyone concerned, including the staff, the public, patients and their families. Further, there is no guarantee that where derogations have been agreed the required numbers of staff will not strike on the day itself. This can create uncertainty and inconsistency across the country, and unnecessary risk to patient safety.

While I would emphasise that the Government firmly believe that the ability to strike is important—it is rightly protected by law—the recent industrial action has highlighted the disproportionate impacts that strikes can have on the public. We need to be able to have confidence that when strikes occur, people’s lives and livelihoods are not put at undue risk, and so do the public; that is why this legislation is needed.

I turn now to the detail of the Bill, which establishes a legal mechanism to implement minimum service levels for periods of strike action affecting certain services. It achieves this by making amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 that add obligations relating to minimum service levels to the list of requirements necessary for the union’s strike action to be protected from liability in tort.

The legislation will enable minimum service levels to be implemented in key sectors via regulations. The key sectors specified in the Bill are broadly the same set that were defined as important public services in the Trade Union Act 2016, which have long been recognised as important for society to function effectively. The six key sectors are health services, fire and rescue services, education services, transport services, the decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. These are the right sectors, given the economic impacts of their potential disruption as well as the impacts on public safety and the ability of the public to go about their daily lives.

Regulations will be tailored to each relevant service to meet legitimate aims, such as safety, public health, access to work and to healthcare, among others. The Government believe it is only right that minimum service levels and the services they apply to are informed by consultations, as required by the Bill, and that there is parliamentary scrutiny of the regulations before they come into effect. This is why these regulations must be approved by both Houses of Parliament before they can be made.

The Bill and subsequent regulations are designed to enable employers to specify the workers required via a work notice in order to meet minimum service levels during strikes within those relevant sectors. Should a union notify an employer of strike action in accordance with existing rules, the Bill will allow the employer to issue a work notice to the union, seven days before the strike, specifying those workers needed to work during the strike and the work that they will need to carry out to secure the minimum level of service.

Work notices must not include more persons than are reasonably necessary to meet the minimum service level and employers must not have regard to whether a worker is or is not a member of a union when producing the work notice. Employers must consult the union on the number of workers to be identified in the work notice and the work to be undertaken, and have regard to any of their views before issuing that notice. Each employer and union must also adhere to data protection legislation regarding those work notices.

To enable a minimum service level to be achieved on a strike day and where a work notice has been issued, a trade union must take reasonable steps to ensure its members, when named on a work notice, comply with it and therefore do not participate in the strike. What is considered “reasonable” will to an extent depend on each specific situation and could include making it clear in its communications with members that, where members are named in a work notice and required to work on a particular day, they should attend work on that strike day. A union which fails to comply with this obligation could lose its protection against liability in tort.

Additionally, if an employee takes strike action despite being named on a work notice, they will lose their automatic protection against unfair dismissal for industrial action. While it is up to the employer, not the Government, as to whether disciplinary or legal action is taken in instances of non-compliance, these measures are necessary to enable employers to manage these situations in the same way as they would now with unauthorised absences or unprotected strike action.

The Bill ensures that minimum service levels align to existing law in respect of taking industrial action and associated legal protections. These provisions are needed to make minimum service levels effective where they apply. This legislation is not about sacking workers; it is about protecting people’s lives and livelihoods by enabling minimum service levels to be applied during strikes.

The Government have already released consultations on the minimum service levels for our blue-light ambulance and fire services and for rail services. These consultations ensure that the public and industry stakeholders, including employers, unions and their members, are all able to provide feedback on what the minimum service levels should be and how they are proposed to work.

Everyone wants to see an end to current strikes and we are doing all we can to negotiate fair and affordable pay settlements with the unions. But at the same time, we must act to protect the public for the future. This legislation is not about stopping or preventing strikes. It simply brings us into line with many other modern European countries, such as Spain and Italy, where minimum service levels are a common way to reduce the impact strikes can have on the public. However, we are not going so far as to ban strikes completely. We are taking a fair and reasonable approach by asking that, before a union takes strike action within a relevant service, they agree adequate voluntary arrangements of cover where they are necessary. Where this has not happened, we will introduce regulations to enable minimum service levels to be applied.

We are of course always mindful of and thankful for the contribution that public sector and other workers make to our country. But if trade unions continue to take disproportionate and potentially unsafe industrial action, we firmly believe that we need to take steps to protect the public. I beg to move.