The Business Secretary will be able to set minimum service levels for six key sectors — and decide what workers are included in the new strike-busting definitions
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New anti-strikes legislation will introduce restrictions on freedoms that are “unprecedented in peacetime”, an industrial relations expert has warned.
Keith Ewing, professor of public law at King's College London and one of the UK’s leading labour relations scholars, told an event in London on Tuesday night that ministers’ Minimum Service Levels bill — currently being rushed through Parliament amid a wave of industrial action — will hand enormous powers to Business Secretary Grant Shapps.
The legislation will force unions to ensure that a certain percentage of staff go to work on strike days in six sectors, from transport to healthcare. But Prof Ewing told the Campaign for Trade Union Freedom that it gives minister Shapps “personal” power on the “scale of an authoritarian government” to decide how it is implemented.
Prof Ewing said: “Shapps will have the power to make regulations which may amend, repeal or revoke any provisions in the act. That is real power to give to a single individual. Shapps can decide what these six different services mean…It's up to him to decide what education means, and what transport means.”
The legislation states that the Secretary of State “may, for the purpose of enabling work notices under section 234C to be given, make provision by regulations for levels of service in relation to strikes” - in other words, he decides what the minimum services levels will be.
“These are decisions for Grant Shapps and Grant Shapps alone…You've got to go back maybe to the 17th century to find a similar situation in which so much power has been given to one individual,” Prof Ewing added.
It comes as Grant Shapps is granted enormous leeway through secondary legislation - so-called Henry VIII powers — to retain or scrap former EU legislation as part of the Revocation and Reform bill. Under the sunset clauses, ministers will be able to “save” some of the retained EU law either indefinitely, delay it, or rewrite it.
Prof Ewing said it meant that this means the Business Secretary will “decide whether you will get the right to retain your holiday, pay, your protection of equal treatment if you're an agency worker, and so on.”
When any employer in one of the six sectors faces a strike under the new bill, they can issues a “work notice” to the union. In effect, this is a power on the part of the employer to “requisition” workers to work during a strike.
“We have never in this country since 1940 had a power whereby employers, backed by the state, can requisition workers to do work they choose not to do so,” the King's College academic noted.
The workers being forced into work - on threat of dismissal during a strike - could be a trade union official. “We could see the requisitioning of shop stewards - branch officials who will be expected to cross picket lines,” Prof Ewing said.
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Workers will lose their right not to be unfairly dismissed during a strike in any services of the minister’s choosing within six sectors:
health services fire and rescue services education services transport services decommissioning of nuclear installations and management of radioactive waste and spent fuel border security“Either you cross the picket line, or you will be fired and you will lose any illegal protection that you might otherwise have,” Prof Ewing noted. There is no pro-active right to strike in the UK - instead striking workers are given limited protections against unfair dismissal.
The bill also places “unprecedented obligations” on trade unions, which will have the duty to take “reasonable steps” to ensure that their members break the strike to ensure minimum service levels.
It means unions will have the duty to ensure that many - or perhaps most - of their members go into work on a strike day that was called by their union. “We have never in this country been in a situation in which a trade union is under a legal obligation to take steps to break its own strikes,” the labour relations expert said.
If the union fails to take “reasonable steps” the consequences are draconian. The union can be sued for damages, dealt an injunction by the courts, and its members can be dismissed “without any form of legal redress.”
Trade unions will be under a legal obligation to take steps to break their own strikes"
Professor Keith Ewing, KCL
There is also a possibility of unions being sued by members for any losses which they have incurred as a result of dismissal, because of the union's action or inaction in observing bosses’ work notices.
Prof Ewing said he believed the bill would “fail” in the long term - but more legislation is likely to come. “Shapps himself has already issued a manifesto published by the Daily Mail earlier last year. One of the proposals I think we can see coming down the line is the government getting the power, eventually, to stop, prevent, or intervene directly in particular strikes,” he said.
Some on the right are talking about using the Civil Contingencies Act — legislation intended for national emergencies such as war — to stop strikes. “There's more to come unless this is stopped. It is authoritarian, it is liberal, and it is illegal. We have got to stop it,” he said.
If you have a political or social story that needs telling, get in touch with Josiah Mortimer confidentially by emailing josiah@bylinetimes.com.
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