Posted: 22/03/2023
The Home Office has launched a public consultation regarding the implementation of minimum service levels (MSL) for fire and rescue services during periods of strike action which, subject to parliamentary approval, may be introduced following the passage of the Strikes (Minimum Service Levels) Bill. The consultation closes on 3 May 2023. In addition, the Department of Health and Social Care (DHSC) has launched a separate consultation seeking views on minimum ambulance service levels during strike action. That consultation closes on 9 May 2023. Finally, the Department for Transport has launched its own consultation on implementing MSL for passenger rail services during strikes that will run until 15 May 2023.
The government has a set of government consultation principles. These principles give clear guidance to government departments on conducting consultations. Principle C provides that the consultations give enough information to ensure that those consulted understand the issues and can give informed responses.
The Bill seeks to significantly amend the Trade Union and Labour Relations (Consolidation) Act 1992, by:
The stated aim of MSL is to find a balance between the ability of unions and their members to strike with the need for the wider public to be able to access key services during strikes.
The Bill will come into force following royal assent. However, MSL will not take effect until the regulations that detail the sector specific MSL come into force. Once implemented, MSL may be applied in relation to any strike in the specified services.
It is understood that the other sectors referenced in the Bill are looking to pursue voluntary MSL in the first instance. It is notable that an inconsistent approach is being adopted for the affected services and begs the question of why the Home Office, DHSC and the Department for Transport are not willing to pursue voluntary MSL in the first instance.
The Home Office consultation provides that:
‘The International Labour Organisation, which is an agency of the United Nations, has stated that minimum service levels are justifiable for the following services:
The DHSC consultation provides that:
‘Whether or not MSLs are justified in accordance with Article 11 of the European Convention of Human Rights (ECHR) will depend on a number of factors such as aspects of international law, which includes International Labour Organization (ILO) conventions.
‘The ILO is a specialised agency of the United Nations which promotes social justice and workers’ rights. The ILO has stated that minimum service levels are justifiable in some situations to protect essential services. This includes where there are “services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term)” (Freedom of Association: Compilation of Decisions of the Committee on Freedom of Association, Sixth Edition, page 164).
‘Our proposal to introduce MSLs in the ambulance service would aim to protect life, safety or health, and our view is that it is a legitimate and proportionate interference with the right to strike, as has been recognised by the ILO, because it is an ‘essential service’ which, if interrupted, would ‘endanger the life, personal safety or health’ of the public. As such, the proposal strikes the right balance between the rights of workers to strike and the protection of others’ freedoms and rights.
‘In line with ILO guidance and case law of the European Court of Human Rights, which sets out that MSLs can be justified, there are MSLs in place to varying levels of provision across Western Europe.’
The Department for Transport consultation provides that:
‘The International Labour Organisation, which is an agency of the United Nations, has stated that minimum service levels are justifiable for the following services.
Rail strikes are specifically aimed to cause disruption to services and achieve their leverage from having an impact upon people’s daily lives along with wider and often significant economic consequences. Due to the number of people who rely on rail every day, both direct passengers and wider business, strikes can have a wide ranging and very disruptive affect.
This can be further exaggerated when unions coordinate plans and announce industrial action at the same time to deliberately maximise the scale of disruption. Equally, industrial action is used as legitimate leverage to pressure employers, to resolve disputes to the union’s favour. As such we are keen to preserve worker’s ability to take strike action.’
The ILO was created in 1919, as part of the Treaty of Versailles that ended World War I, to reflect the belief that universal and lasting peace can be accomplished only if it’s based on social justice.
In 1946, the ILO became a specialised agency of the United Nations. Its unique tripartite structure of governments, trade unions and employer organisations gives them an equal voice.
As one of the founding member states of the ILO, the UK has been a member of the ILO since 1919. The UK holds one of ten of the titular government seats in the ILO’s Governing Body, which is the executive body of the ILO. Amongst others, the ILO Governing Body takes decisions on ILO policy, and decides the agenda of the International Labour Conference (ILC).
The ILC is the general assembly, or parliament of the ILO. It takes place annually and comprises government, trade union and employer organisation representatives from all ILO member states. The ILC has various functions, including the adoption of international labour standards (ILS) and the supervision of their implementation (performed in collaboration with other ILO supervisory bodies).
It is the ILC alone that decides the form of International Labour Conventions and Recommendations. ILO Conventions are international treaties that impose legally binding obligations upon the ILO member states that choose to ratify them.
No. Whilst the UK has ratified both ILO Convention 87 on Freedom of Association and Protection of the Right to Organise, and Convention 98, the Right to Organise and Collective Bargaining, neither regulate the right to strike at the international level, let alone regulate MSL.
Convention 87
The 1948 preparatory ILO report for Convention 87 clearly states that ‘the proposed convention relates only to freedom of association and not to the right to strike.’ Moreover, in the discussions on Convention 87 at the ILC of 1947 and 1948, no amendments relating to a right to strike were submitted, let alone adopted.
Convention 98
When Convention 98 was adopted, this issue arose again. In the course of subsequent discussions, the chairman considered ‘not receivable’ the amendments tabled, which aimed at having a right to strike guaranteed in the convention on the ground that: ‘The question of the right to strike was not covered by the proposed text, and that its consideration should therefore be deferred until the Conference took up item V of its agenda relating, inter alia, to the question of conciliation and arbitration.’ This question was not pursued the following year so the fact is neither Convention 87 nor Convention 98 regulate the right to strike, or MSL.
The Home Office, DHSC, and Department for Transport have elected to refer to:
Neither the CEACR nor the CFA speak for the ILO. They are part of the ILO system but only the ILC (the tri-partite constituents of the ILC – governments, trade unions and employer organisations) speaks for the ILO concerning whether Convention 87, or indeed Convention 98, contain a right to strike and all that entails, such as MSL.
The ILC has never confirmed that ‘minimum service levels are justifiable’, as that would require a revision to Convention 87 that has simply not happened. It is notable that neither government consultation states this clearly.
The ILC’s CAS has since 2013 expressly recognised the existence of the right to strike in Convention 87 is not agreed. Consequently, the CAS’ tri-partite conclusions do not address in any way the non-binding opinions and recommendations of the CEACR concerning the right to strike, or indeed MSL.
This is notable as the CAS is the apex of the ILO’s supervisory machinery when it comes to determining the application in national law and practice of the obligations contained in Convention 87. It follows that it is notable that neither government consultation follows the established practice of the CAS in recognising this dispute.
The CEACR are national legal experts tasked with providing an impartial and technical evaluation of the state of application of ratified ILO Conventions and Recommendations. The CEACR issues an annual report, which includes a ‘General Survey’ of member states’ national law and practice on specific subjects. The survey allows the CEACR to examine the impact of ILO Conventions and Recommendations, to analyse the difficulties indicated by governments as impeding their application, and to identify means of overcoming these obstacles.
The relevant General Survey is the CEACR’s 2012 General Survey. Paragraph 131 reads:
‘The second acceptable restriction on strikes concerns essential services. The Committee considers that essential services, for the purposes of restricting or prohibiting the right to strike, are only those “the interruption of which would endanger the life, personal safety or health of the whole of part of the population”. This concept is not absolute in its nature in so far as a non-essential service may become essential if the strike exceeds a certain duration or extent, or as a function of the special characteristics of a country.’
Paragraph 135 provides that:
‘When examining concrete cases, the ILO supervisory bodies have considered that essential services in the strict sense of the term may include air traffic control services, telephone services and the services responsible for dealing with the consequences of natural disasters, as well as firefighting services, health and ambulance services, prison services, the security forces and water and electricity services. The Committee has also considered that other services (such as meteorological services and social security services) include certain components which are essential and others that are not.’
In the CEACR’s 2012 General Survey, paragraph 138 reads:
‘The Committee emphasizes the importance of adopting explicit legislative provisions on the participation of the organizations concerned in the definition of minimum services. Moreover, any disagreement on minimum services should be resolved, not by the government authorities, as is the case in certain countries, but by a joint or independent body which has the confidence of the parties, responsible for examining rapidly and without formalities the difficulties raised and empowered to issue enforceable decisions.’
The CEACR is not a judicial entity despite being made up of national judicial experts, which can cause confusion for the unaware. To quote the CEACR itself:
‘The Committee of Experts undertakes an impartial and technical analysis of how the Conventions are applied in law and practice by member States, while cognizant of different national realities and legal systems. In doing so, it must determine the legal scope, content and meaning of the provisions of the Conventions. Its opinions and recommendations are non-binding, being intended to guide the actions of national authorities. They derive their persuasive value from the legitimacy and rationality of the Committee’s work based on its impartiality, experience and expertise. The Committee’s technical role and moral authority is well recognized, particularly as it has been engaged in its supervisory task for over 85 years, by virtue of its composition, independence and its working methods built on continuing dialogue with governments taking into account information provided by employers’ and workers’ organizations.’
The CFA was set up by the ILO’s Governing Body to examine complaints relating to, or allegations of, the violation of the principles of freedom of association contained in the ILO Constitution and the Declaration of Philadelphia. It receives complaints submitted by workers’ and employers’ organisations, even where the country in question has not ratified Conventions 87 and 98.
Chapter 10 of the compilation of decisions of the CFA provides numerous extracts from CFA decisions concerning ‘essential services’, also known as MSL.
The compilation is full of carefully selected extracts from CFA decisions. Indeed, many of these extracts are not helpful to the UK government’s justification for the Bill, such as paragraph 848 which reads, ‘By linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service essential, and thus the right to strike should be maintained.’
Consider paragraph 905:
‘Even though the final decision to suspend or revoke a trade unions legal status is made by an independent judicial body, such measures should not be adopted in the case of non-compliance with a minimum service’, which is self-evidently in conflict with the Bill providing that a union loses its protection from damages claims by the employer if it does not take reasonable steps to ensure that members of the union named on the work notice comply with it.
No. The CFA is a committee of the ILO’s Governing Body. Again, it is the ILC that speaks for the ILO concerning the right to strike and MSL.
The CFA is also not a judicial entity. The CFA’s decisions are not ‘case law’ in the sense of an interpretation of the standards laid down in Conventions 87 or 98. The CFA has a broader political brief. It has no judicial or legislative function and does not restrict itself to the disciplines of interpretation that would establish jurisprudence or a definitive application of Conventions 87 and 98.
Article 37(1) of the ILO Constitution provides that the International Court of Justice alone can give binding interpretation of ILO Conventions. It follows that the International Court of Justice can determine if Convention 87 contains a right to strike and all that entails, such as MSL.
In the alternative, article 37(2) provides, ‘… the Governing Body may make and submit to the Conference for approval rules providing for the appointment of a tribunal for the expeditious determination of any dispute or question relating to the interpretation of a Convention which may be referred thereto by the Governing Body or in accordance with the terms of the Convention. Any applicable judgement or advisory opinion of the International Court of Justice shall be binding upon any tribunal established in virtue of this paragraph…’
The UK government knows very well that the ILO has never established a tribunal to determine definitively whether Convention 87 includes a right to strike and standards on MSL.
The misleading explanations in these consultations concerning the ILO ‘justifying’ MSL surely opens up the risk for the future MSL regulations being challenged and overturned via a judicial review application.
If not judicially reviewed, then future efforts to enforce the MSL in the courts may be undermined by legal appeals challenging the legality of MSL, with regard to the views of the ILO’s CEACR and CFA.
Further, this situation can only add to the Trade Union Congress’s (TUC) determination to proceed with its current complaint to the CEACR.
Indeed, in its latest 2023 Annual Report, the CEACR has requested that the UK government respond to a number of requests concerning its national strike laws and Convention 87. The UK government cannot have it both ways; on the one hand, refuting the non-binding views of the CEACR concerning the right to strike in Convention 87, and on the other hand, relying on the non-binding views of the CEACR to support the justification for MSL in its national strike laws.
This again calls into question why the Home Office, DHSC and the Department for Transport have taken this step and were not willing to avoid such controversy by pursuing voluntary MSL in the first instance.
In simple terms, being unable safely to challenge the legality of national strike laws with some legal certainty at the international level is perplexing, especially when national laws and practices are so often directly derived from international standards.
Further, legal challenges cost time and money to overturn, which ultimately threatens the financial viability, and therefore the very existence of the union movement. After all, on 14 December 2022, the High Court granted permission for a judicial review of the regulations that permit the supply of agency workers during strike action to replace striking workers.
Three sets of legal proceedings were launched in September 2022 in response to the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852). One challenge, brought by 11 trade unions, is being co-ordinated by the TUC, and separate challenges have also been brought by Unison and NASUWT. All have been given permission to proceed.
But do the unions have the funds for more legal challenges?
Employers always want legal certainty. Simply put, employers want to know what they should and should not be doing when managing their industrial relations. Legal uncertainty frequently costs money due to the need for contingencies.
The Bill provides that if an employee identified in a valid work notice for a strike day takes strike action on that day, which does not comply with the work notice, the employee would lose automatic protection from unfair dismissal – if their employer has notified them (before the strike day) that they are named in, and must comply with, a work notice and the work which they need to carry out. Pause to consider the potential industrial relations unrest if that situation materialises, ie forcing a union member to cross a picket line of colleagues or face being dismissed.
Further, where a work notice is validly given by the employer to the union, the Bill provides that a union loses its protection from damages claims by the employer if it does not take reasonable steps to ensure that members of the union named on the work notice comply with the work notice.
Such compliance by union members would mean not participating in strike action on strike days when those members are required by the work notice to work. An employer might also be able to obtain an injunction in such circumstances to prevent the strike taking place. If an employer were to be granted such an injunction, it could have serious workplace implications.
Then pause to consider the legal and employee/industrial relations implications for employers seeking to enforce work notices if it then transpires that the legal basis for MSL is flawed due to misleading consultation documents in the legislative process. This becomes very expensive, very quickly.
As mentioned, the TUC has already registered a complaint about the UK government’s alleged breaches of Convention 87 with the CEACR. We may also see in the near future the TUC pushing for the UK government to go before the ILC’s CAS to explain how its national strike laws do not contravene Convention 87. This is more likely now that the CEACR has made requests to the UK government in its latest Annual Report. If this materialises, expect more legal and political fireworks, as this risks more controversy if the CAS continues to hold its position of not considering the CEACR’s comments on the right to strike and MSL.
Ultimately, this is not a good look for any UN agency to have both legal and political uncertainty associated with its fundamental conventions. Governments, trade unions and businesses (large and small) need certainty given the implications of national governments, such as the UK, misstating the legal position of the ILO in consultation documents.
This is regretfully a problem of the ILO’s own creation, as the CEACR has provided national governments with their controversial opinions based on their view that a right to strike is a fundamental right of workers and trade unions and that it is part of Convention 87. The CEACR’s view has been incorporated into ILO training materials and requests to governments and, understandably, has had a direct impact on legal thinking across legal jurisdictions.
Ultimately, it is not in the ILO’s interests for national governments to cherry pick their views on what Convention 87 entails, as it can only erode confidence in the ILO itself. However, whether, and to what extent, the ILO’s ILC should consider the rules on strike action at international level remains politically very challenging. Until that happens, no national government can rely on the views of the CEACR and/or the CFA as speaking for the ILO, as their views are of secondary importance to conclusions of the ILO’s tri-partite constituents at the ILC, and currently there is a well-established impasse.
Perhaps the time is coming for the ILO to revisit this, and the UK government’s misstating of the ILO position may unintentionally lead to it being a catalyst to start sensitively reviewing Convention 87 within the ILO’s existing ‘Standards Review Mechanism’. That would be a sensible starting point to build the necessary tripartite consensus, rather than the more nuclear option of a referral to the International Court of Justice.
In 2012, Chris was the employer vice-chair for the ILO’s CAS; from June 2014 to February 2016, Chris was the employer vice-chair for the ILO’s CFA, and from November 2011 to June 2017 Chris was the UK employer representative in the ILO’s Governing Body.
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