Strikes (Minimum Service Levels) Bill

Debate between Barry Gardiner and Laura Farris

2nd reading
Monday 16th January 2023 Commons Chamber

[Laura Farris]

I am grateful to both SNP Members for their interventions. I am coming on to those points, so I will make a tiny bit of progress, if I may.

On the point raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry), we already know that transport and education meet the ILO’s test, because the ILO told the United Kingdom that in its response to the challenge to the Trade Union Act 2016 submitted by the TUC in 2015. In its response, the ILO committee of experts—Members can look it up; it is on the website—said that in relation to transport and education

“recourse might be had to negotiated minimum standards for these sectors as appropriate”.

We also know that many comparable countries take a much tougher line than the Government are proposing. In the United States, to give one example, 38 out of 50 states ban public sector strikes altogether.

[Barry Gardiner (Brent North) (Lab)]

The hon. Lady is presenting a reasoned case, but she knows, and she has just used the word, that these things should be negotiated. The measures in this Bill are by fiat of the Secretary of State.

[Laura Farris]

I thank the hon. Gentleman for his point. I am coming to all these things, so if he will give me a moment, I will continue.

In the United States, 38 out of 50 states have an outright ban on public sector strikes, including New York. Other states, such as Canada, Australia, Italy and Spain, all have embedded in statute minimum service levels that apply to important public services, and those services are often drawn much more widely than the Government are proposing. They include waste collection, postal services, broadcast services, the administration of justice, water distribution and energy supply.

I pick out those states not as random examples, but because every single one is a member of the International Labour Organisation. They are bound by exactly the same rules as us, and they are among our closest comparators around the world. Even more importantly, the International Labour Organisation has adjudicated all their statutory minimum service levels, and a 2019 publication from the ILO in Geneva commented:

“These examples illustrate the wide diversity of approach that ILO member states have adopted to address the challenges posed by industrial disputes in essential services”.

Minimum service levels

“supported by the ILO’s supervisory organs, exist to manage the balancing act between these necessary restrictions and the individual worker’s fundamental labour rights”.

I have not heard a single Member of Parliament tonight explain to me why the ILO is wrong or why the Government are striking the wrong balance when they have a mandate for what they are doing.

P&O Ferries and Employment Rights

Debate between Barry Gardiner and Laura Farris

Monday 21st March 2022 Commons Chamber

[Laura Farris]

I think that that is correct, and I think that that was what the Secretary of State was alluding to. It is also the case that DP World has obviously concluded that it would prefer to make a severance payment that takes into account the 90-day consultation period, the notice period and the redundancy period, because that is less hassle for them than going into a consultation for 90 days with the RMT and facing strike action.

I will come to my solution in a moment, but I want first to briefly address what Labour Members have said about banning fire and rehire. The hon. Members for Ogmore (Chris Elmore) and for Sefton Central (Bill Esterson) said that the commendable private Member’s Bill presented by the hon. Member for Brent North (Barry Gardiner) would have done that. Let me, with great respect, refresh the House’s memory. The hon. Gentleman said at the time:

“I have no intention in this Bill of banning, and there is nothing in this Bill that would ultimately ban, fire and rehire. There is an important reason for that and I will come on to it in my speech.”—[Official Report, 22 October 2021; Vol. 701, c. 1051.]

[Barry Gardiner (Brent North) (Lab)]

The hon. Lady is absolutely correct: nothing in my Bill would ultimately have stopped fire and rehire, and that was with the full cognisance of the 22 unions that supported it. As she knows, however, there were measures in the Bill that would have prevented the current situation.

Employment and Trade Union Rights (Dismissal and Re-engagement) Bill

Debate between Barry Gardiner and Laura Farris

Friday 22nd October 2021 Commons Chamber

[Laura Farris]

I hope that what I am going to say will answer the hon. Gentleman’s criticism.

There is another point that I cannot ignore. I invite every Member to turn to proposed section 187F, which deals with the proposed “Award of compensation” to be made by any employer who fails to comply with the proposed new consultation requirements. It states:

“ The amount of compensation awarded shall, subject to the following provisions, be such as the employment tribunal considers just and equitable in all the circumstances”.

That is exactly the same compensation measure that is used in whistleblowing and in discrimination law. It opens the door to uncapped compensation in the area of unfair dismissal, which has a cap, It therefore drives a coach and horses through the entire principle of compensation in unfair dismissal hearings. It would make fire and rehire the only form of unfair dismissal in which the employee could receive an uncapped compensatory award. If the employee had been dismissed for gross misconduct or for being bad at his or her job, the award would have been capped at 80 grand. That cannot be right.

What will all this do to the employer who is thinking about renegotiating terms of employment? The employer will be too nervous to do it, and will lay people off. Let us take the employer in the case of Garside & Laycock v. Booth 2011, who had proposed a 5% reduction in wages which every single balloted member of staff except one had accepted. Employers would not do that; they would lay off the whole workforce. Is it better or worse for people to take a less attractive variation in their terms of employment or to lose their jobs altogether?

[Barry Gardiner]

I am grateful to the hon. Lady for engaging so closely with the Bill. I think she knows she is over-egging it, because any tribunal would look at the situation in the round. The Bill is drafted as it is because it chimes with the legislation on redundancy. Again, to be technically proficient, the Bill has to merge with the other Acts.

[Laura Farris]

I am afraid the hon. Gentleman is incorrect. This concern was raised by my head of chambers and it is shared across the employment Bar. We cannot have a just and equitable jurisdiction in the law of unfair dismissal as it does not work.

The hon. Member for Feltham and Heston (Seema Malhotra) raised a point about the aviation sector. The conduct of British Airways was poor, but there is an important issue at stake. If in primary legislation the risks of fire and rehire are so great that employers are more inclined to lay people off, think what that would mean for airline pilots, for example. Airline pilots must fly within a two-year period to retain their flying licence. If they are sacked by British Airways at a time when the entire travel sector is struggling badly, they would be very unlikely to get a job and it could easily be two years. It is not just the loss of a job; it is the loss of an entire career. We need to tread very carefully when we consider primary legislation in the area of fire and rehire.

--- Later in debate ---

[Laura Farris]

Thank you, Madam Deputy Speaker. I will take those first two points in succession. The first was about whether these issues are not better raised in Committee. The answer, respectfully, is no, because I do not think an area as technically difficult as this belongs in primary legislation, and I have explained why the Bill is at odds with the Trade Union and Labour Relations (Consolidation) Act 1992, the intentions of Parliament when that Act was passed and the existing web of laws at section 98 of the Employment Rights Act 1996 dealing with unfair dismissal. The issues covered in the Bill belong in a code of practice backed up with financial penalties, rather than in primary legislation.

To take the point made by the hon. Member for Edinburgh West (Christine Jardine), I of course accept the stress that people were subjected to, and all the work that Members on the Government side of the House are doing is directed at minimising that, but the solution we are considering and discussing must not give employers leeway to abuse employment rights. We have been thinking about that just as much.

It is precisely because I do not think employees should have a gun to their head at the start of consultations that I cannot support clause 1 of the Bill, which requires employers to lay all their cards on the table on the issue of fire and rehire from the start. Rather than demanding full disclosure from day one, we should be much more sensitive to the legitimate desires of businesses to remedy defects before they have to reveal they are on the verge of failure, given what that might mean for their business at a stage before they would wish to disclose it.

[Barry Gardiner]

I agree that it really important to take the heat out of the situation at the very beginning. The hon. Lady is absolutely right—I mentioned it myself—about the importance of not having section 188 on the table immediately. That is why, starting at line 20, the Bill says:

“The employer shall consult with a view to reaching an agreement to avoid decisions being taken to terminate contracts of employment, or to introduce changes in work organisation or in contractual relations.”

The precise point that the hon. Lady has made is there on the face of the Bill.

[Laura Farris]

The hon. Gentleman knows that proposed new section 187B(2) says:

“The information to be disclosed is all information relating to the employer's undertaking”.

It would be almost impossible for an employer to comply with that without its having to put on the table the fact that it is considering dismissal in the first instance.

I hope that, if my speech has strayed into technical issues of industrial relations law, that reveals how difficult this question is and how any attempt to impose primary legislation runs significant risks of unintended consequences that would be much worse for workers’ rights and job losses. We on the Conservative Benches depart from the Opposition in that we think there is strength and flexibility in existing employment law, but we also think that it could do with being robustly reinforced through potential financial penalties. I hope the hon. Member for Brent North is reassured that we take this issue as seriously as he does. We are also thinking hard about it, and I am confident that we will deliver for workers’ rights.