The Future Lawyer Weekly Briefing – W/C 6th December

The Transport Strikes (Minimum Service Levels) Bill

Briefing by Aqua Koroma

The government recently took steps to minimise the impact transport strikes have in the UK by introducing The Transport Strikes (Minimum Service Levels) Bill for its first reading in the House of Commons in October 2022. The Bill is intended as a reactive measure to ongoing transport strikes; pointedly, rail strikes have been deemed the most significant form of industrial action since 1989.

The strikes are not only disruptive to daily lives, but according to gov.uk, ‘economists have assessed that the first wave of rail strikes alone, in June 2022, cost the UK economy nearly £100 million, putting extra pressures on businesses and stopping people across the country from accessing their workplace during a cost-of-living crisis’.

Why is new transport legislation required?

The spiralling cost-of-living crisis in the UK led to a wave of strike actions during the ‘summer of discontent’ in 2022.

From the barristers’ strikes, AQA strikes and strikes by Felixstowe port workers to the issues in discussion, that is, rails, trams and bus strikes, the UK has felt in turmoil, which is a result of, and according to Liza Tetley, of Bloomberg UK, struggling Britons putting ‘pressure on their employers to raise wages amid rocketing inflation’.

Whilst industrial action from other sectors does impact the UK, transport strikes tend to be the most disruptive for apparent reasons. In keeping in line with The Conservative Party’s 2019 transport manifesto, which ‘require that a minimum service operates during transport strikes’, the Bill was introduced in the House of Commons on 20^th October 2022

Impact on wider society

Upon its enactment, the Bill will amend s.219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) by incorporating new ‘specified transport services’, which are likely to include services as per s. 2 of The Important Public Services (Transport) Regulations 2017.

The Bill disposes of the minimum service levels required and work notices which explicate that some people must work during any strike action as follows:

Minimum service levels

Trade unions and employers will now be subject to binding minimum service agreements, a subjection also applicable to trade unions not recognised by transport employers as having collective bargaining power. Collective bargaining power is the process utilised by trade unions in negotiating salaries and work conditions, enabling trade unions to inflict damage on companies by withdrawing labour if agreements are not reached.

Such subjugation means that trade unions and employers must now have regard to ‘relevant matters’, specified by lewissilkin.com as ‘a number of factors, including passengers’ abilities to travel to and from work or education and the impact on economy and environment’. Furthermore, both parties must reach a minimum service level agreement within three months.

If no agreement is reached, the Central Arbitration Committee (CAC) is empowered by the Bill to impose an agreement between both parties.

Work notices and restrictions

The intended work notices require employers to identify those staff who must work during strike actions to secure minimum service levels.

Therefore, transport employers will announce work notices when strike actions are intended by specified transport trade unions in a workplace subject to a ‘minimum service specification’, meaning trade unions must take reasonable steps to ensure those identified as working during strike action do so not partake of it.

It is obvious the potential positive impact of the Bill; for example, people could travel to their respective destinations, thus keeping the economy moving, the adverse effects on the environment will be reduced owing to the reduced road vehicle usage and the Bill, in many ways, promotes job safety.

Impact on the legal sector

Conversely, the Bill will likely face legal challenges from transport trade unions and perhaps some employers owing to its restrictive measures on the right to strike, the withdrawal of specified immunities and its potential violation of the International Labour Organisation requirements.

Currently, s. 219 of TULRCA 1992 grants trade unions immunity from tortious liability should those tortious acts be done in the contemplation of and advancing trade disputes. The proposed legislation, however, removes trade union immunity from liabilities under economic tort, meaning more significant exposure to civil actions for damages against trade unions.

Additionally, it is legal to join a trade union unless specified restrictions, which vary from one trade union to another, apply. The Bill, however, proposes the removal of protection from unfair dismissals for employees who decide to partake in strike action, and an employer refusing a union member their participation in union activities could potentially mean the employee is deemed purposefully disadvantaged, which translates into an incompatibility with the European Convention on Human Rights.

As such, the employment law sector will likely see increased judicial reviews, more defences countering civil action against trade unions, employment tribunals concerning unfair dismissals, and increased international court adjudication.

It is important to note, however, that the Bill is still at an early legislative stage, a date is yet to be set for its second reading in the House of Commons, and it is yet to make its way to the House of Lords. On that account, there is every opportunity that there may be some amendments more favourable to trade unions and their members.