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Autumn of discontent looms amid ongoing industrial unrest

Posted: 14/08/2023

Back in May of this year, we reviewed the current industrial relations landscape in the UK, pondering whether we would be leaving behind 2022’s equivalent of the 1978/1979 ‘winter of discontent’. Looking ahead to the autumn of 2023, the economic, political and social indicators are all pointing to the continuation of the current industrial relations disruption.

Further rail strikes are likely, particularly with the train drivers trade union ASLEF currently extending its overtime ban, causing reduced timetables and cancellations, including services running to high profile music festivals and sporting fixtures across the country as well as the annual Pride event in Brighton. With no new pay deal on the table, RMT members have already backed a new mandate for strike action, meaning disruption could continue until at least November. 

The British Medical Association (BMA) has announced that junior doctors will return to picket lines for four days this month. This is likely to be followed by a two-day walkout by consultants on 24 and 25 August, and on 19 and 20 September unless the government agrees to further pay negotiations. It is significant because, unlike junior doctors’ strikes, when consultants can cover their work, junior doctors are unable to stand in for consultants. In any event, consultants might be involved in their own industrial action.   

There may be further disruption to the healthcare sector following the decision by GPs in England to ballot for industrial action if changes to their working contract, which they say threaten patient safety, are not reviewed in the coming months.

The University and College Union (UCU) and the Universities and Colleges Employers Association (UCEA) held three sets of talks in July but failed to agree the 2023-24 pay round. Support staff - members of Unison - at nine universities in England have voted to strike over the pay offer from the UCEA. 

Earlier this year, teachers in England rejected a pay offer from the government. The National Education Union (NEU), the Association of School and College Leaders (ASCL), the National Association of Head Teachers (NAHT) and NASUWT are contemplating balloting their members for industrial action in schools in England in the autumn term.  This could lead to the biggest strikes in a decade as part of a ‘united front’ by all four education unions. In addition, Unite members in 10 Scottish councils have voted to strike over pay when schools resume after the summer break.

No doubt, the UK government will be reflecting on the impact and merits of appealing the judgment by the High Court that from 10 August employers are no longer able to engage agency workers to cover striking employees. The court ruled that it was unlawful, unfair and irrational for the government to repeal laws established in 1976 banning employers from using agency workers to cover for striking staff. The judgment followed successful judicial review proceedings lodged by UNISON alongside the NASUWT and TUC, whose case was on behalf of 11 unions. 

This all points to the new Strikes (Minimum Services Levels) Act grabbing more headlines.  After all, the UK trade union movement is very clear that it will fight this law in order to protect the ‘right to strike’. Some commentators expect a coordinated campaign among UK trade unions of ‘mass non-cooperation and non-compliance’ against the new law. The TUC is on record stating the ‘right to strike’ must be protected at all costs. 

Currently, we await the regulations to be made by the Secretary of State at the Department for Business and Trade setting minimum levels of service in specified public services. However, we understand that the government hopes minimum service levels in healthcare, education, border security, other transport sectors and nuclear decommissioning, will be mutually agreed upon without the need for consultation. Time will tell whether this hope is realistic. After all, industrial action in the fire, health, education, transport, border security and nuclear decommissioning sectors already requires the support of at least 40% of all those entitled to vote in the relevant ballot and at least a 50% turnout in order to be valid. The UK government has also committed to bring forward a statutory code of practice on the reasonable steps which a union must take to be compliant with the legislation and will consult on the draft code.

With the main UK political parties holding their annual conferences this autumn, the ‘right to strike’ versus the need for minimum service levels to avoid essential public services grinding to a halt is likely to become a point of differentiation. A number of trade unions, including UNISON, are lobbying Labour to commit to removing barriers and restrictions on trade unions recruiting, organising, and importantly, taking industrial action. 

The ‘right to strike’ is also likely to grab headlines at an international level. The international trade union movement has urgently requested that the November governing body of the International Labour Organisation (ILO) further considers the long-standing dispute over the interpretation of ILO convention 87 (Freedom of Association and Protection of the Right to Organise Convention) by the ILO’s committee of experts in relation to the ‘right to strike’. The ILO committee of experts is the supervisory body principally concerned with the interpretation of ILO conventions and their application by national governments. 

The international trade union movement wants to discuss and agree on a referral of this dispute to the International Court of Justice (ICJ). The governments of Brazil, the European Union and South Africa are explicitly supporting this proposal. If a referral is to be submitted, then this will take time to agree. However, looking forward, should the ICJ ultimately determine that convention 87 does include a ‘right to strike’, as interpreted by the ILO’s committee of experts, then this would be a seismic industrial relations development. It would mean that the UK government, along with a large number of other governments, would be legally obliged to amend their national laws and practices to give proper effect to the ‘right to strike’, or be in breach of their international obligations and all that entails. This is very important. For example, in the recent EU-UK Trade and Co-operation Agreement, the UK government re-affirmed its commitment to abide by all ratified ILO conventions, including convention 87, which is one of a limited number of ILO fundamental conventions. The move is a source of tension as the ILO committee of experts has since 1989 expressed concern about the extent to which the UK already complies with its obligations under various ratified ILO conventions. 

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