Draft Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels)

Debate between Mick Whitley and Chris Stephens

Monday 27th November 2023 General Committees

[Chris Stephens]

That is a magnificent point. This has been debated on various occasions on which we have asked the Government—perhaps the Minister will rise to his feet; I will take his intervention right now—why minimum service levels are necessary on industrial action days, but not at any other time. If there were statutory guidance and a code of practice for employers, one would certainly ask the question: would employers demand that there be more workers on shift on days of industrial action than on a normal working day? The Minister knows this, because it has been raised consistently when we discuss these things that employers are always at it.

I was a proud trade union activist. I refer to my entry in the Register of Members’ Financial Interests: I am a proud member of the Glasgow city branch of Unison. We had to negotiate life-and-limb cover for strike days—yes, the legislation sets out that there has to be life-and-limb cover—and employers would ask for more people on shift on days of industrial action than on normal working days. I will take an intervention right now if the Minister can give us an assurance that no employer across these islands will ask more workers to be at work on days of industrial action than on normal working days. I am more than happy to take an intervention from the Minister right now.

I note for the record that the Minister has not risen to his feet.

Since the passage of the anti-strike Act, there have been suggestions that the Act’s provisions on minimum service levels would be similar to the norms of Europe. Well, no, they are not. I will not repeat all the clarifications that I and others have offered on what actually happens in Europe, as those fell on deaf ears. I will, however, repeat our warnings that this nasty legislation will prove to be severely counterproductive and damaging overall to society. Taking a negotiated, voluntary and successful approach to minimal service levels and mutating it into an imposed, coercive and ultimately failed system is very foolish, but it is unsurprising from those who choose not to listen or learn.

Let me comment in detail on one sector in particular: the health sector. I will do so by referring extensively to the TUC’s consultation response on minimum service levels for hospital services. I will also refer to the views of the British Medical Association and the Royal College of Nursing.

The TUC believes that the Act

“is unfair, undemocratic and likely in breach of our international legal commitments.”

Its view is that it is

“the fundamental right of a worker to take industrial action to defend their pay and conditions”

and that

“secretaries of state are to be given enormous power to define and introduce minimum service requirements”.

It says the Act is

“draconian: it could lead to individual workers being sacked for taking part in industrial action that was supported in a democratic process”,

with trade unions facing large damages if deemed to be non-compliant with this code of practice. Perhaps the Minister will answer the question with which he was challenged by the shadow Minister, the hon. Member for Ellesmere Port and Neston. The Minister was quoted as saying that no one would be dismissed as a result of this legislation, but where does it say that?

According to the TUC, the Act is “unnecessary”—it is “custom and practice” to agree “life-and-limb cover”—and “counter-productive”. That, however, is not the view of only the TUC, which points out that the Government’s own impact assessment suggests that

“industrial disputes are likely to become more protracted and prolonged as a result of introducing minimum service levels”.

In summary, the TUC believes the approach is unacceptable, anti-democratic, draconian and, ultimately, both unnecessary and counterproductive.

Given the purpose of this Delegated Legislation Committee, a further quote from the TUC might prove to be the undoing of the code of practice:

“Given the fact that the services subject to MSLs are to be determined by Secondary Legislation, there remains a number of uncertainties around (a) the extent to which the policy would restrict the right to strike, (b) the relationship between the ability to strike and the strength of workers’ ability to bargain on terms and conditions of employment through collective bargaining, and (c) the value workers place on collective bargaining relating to terms and conditions of employment.”

Those comments are also derived from the Government’s impact assessment.

Conservative Members may simply choose to disregard the findings of such an impact assessment. They would find interesting backers in doing so, as the Government’s own Regulatory Policy Committee judged the impact assessment of the Act

“red-rated as not fit-for-purpose”,

and found that the Government make

“use of assumptions in the analysis which are not supported by evidence”—

here is us thinking that the Boris Johnson days were gone. There are other, less parliamentary ways to describe making use of assumptions that are not supported by the evidence, which I will leave to the imagination of Members.

Let us now explore the views of the British Medical Association and the Royal College of Nursing. Agreement among health sector unions is clear, as the BMA also considers the proposals for minimum strike levels to be

“counterproductive, undemocratic, unworkable, and draconian”.

The legislation seems to be little more than a smokescreen. Instead of addressing the state of the NHS, which currently compromises patient safety on a daily basis, or the underlying reasons why doctors and other healthcare staff have been striking in some parts of the UK, if not in others, the Government are trying to paint healthcare workers as the villains of the piece, rather than the victims of governmental action and inaction. I specifically mention striking “in some parts of the UK,” because a different and more respectful approach to public service employees in Scotland has resulted in something closer to industrial harmony. Perhaps others should watch and learn from what the Scottish Government are achieving in public sector relations.

Throughout these islands, a long-standing history of constructive joint working between NHS employers and trade unions at a local level has patient safety at its heart. The introduction of minimum service levels in hospitals would poison those industrial relations. It would replace a system under which those who understand the local situation tailor their response to the needs of hospital service users with a national service level mandated from Whitehall and designed by those who arrogantly assume that they know better.

Although the Government’s consultation seemed to find that several critical incidents arose due to strike action, data from a freedom of information request suggests otherwise. It is unclear whether any were a direct result of action being called. Rather than demonstrating that patient safety was compromised due to industrial action, the data shows the importance of tackling the stresses that the NHS faces on a daily basis.

The BMA has repeatedly raised concerns that the “reasonable steps” that unions would be required to take to comply with the Act would force unions to act in a way that undermines their responsibility to represent their members. It is not “reasonable” to expect unions to take any steps that would undermine legitimate strike action, for which they will have passed a high threshold to have a lawful mandate under trade union legislation.

[Mick Whitley]

I declare an interest as a member of Unite the union. The hon. Member is making an excellent speech. Does he share my concern that by allowing employers to amend work notices up to the end of the fourth day before industrial action commences, the code risks allowing unscrupulous employers to create formidable and unnecessary bureaucratic hurdles for trade unions to overcome, thereby giving employers the opportunity to intentionally undermine entirely legitimate and otherwise lawful strike action?

[Chris Stephens]

I agree with all that. I know that this will surprise some Conservative Members, but I do believe that there are unscrupulous employers out there. I believe that unscrupulous employers already use existing anti-trade union legislation to try to stop industrial action taking place with some daft minutiae over lists of members and so on. The point I was making is the Government have already imposed extremely high thresholds that trade unios must cross before industrial action takes place.

The draft code of practice does not achieve the necessary clarity of what the duty will mean in practice for trade unions. Instead it presents issues for trade unions over how they will be able practically to implement the proposals. It creates incredibly unrealistic timescales on unions, requiring them to start identifying members

“as soon as reasonably practical”

after receiving a work notice. Such weasel words threaten vindictive penalties for being unable to guess what a Conservative Minster thinks is “reasonable”.

I will refer to some surprising comments from the Royal College of Nursing. They are surprising because the RCN was advised that the legislation would not affect it at all, but perhaps it was not too surprised to discover that that was not the case. A Minister at the Dispatch Box told nurses that the Strikes (Minimum Service Levels) Bill was “not about nurses.” That was always flagrantly untrue, as the RCN clearly stated at the time. Specifically, the Leader of the House said on 26 January 2023 that the Bill was “not about nurses”, and that it was “wrong” to suggest that it was.

Through its draft regulations for NHS ambulance services and the NHS patient transport service, the Government are now explicitly seeking to impose minimum service levels that apply specifically to nursing staff in ambulance services. The RCN asks that Parliament, including Members present here, should hold the Government to their words and reject regulations that would impose minimum service levels on nursing staff.