Bill to mandate minimum service levels during transport strikes published
25 October 2022
Against a backdrop of prolonged national rail strikes, the government has proposed a complex new legal framework to ensure minimum service levels are maintained on transport services during industrial action.
The Transport Strikes (Minimum Service Levels) Bill was introduced in the House of Commons on 20 October 2022, building on the Conservative Party’s commitment to “require that a minimum service operates during transport strikes” in its 2019 election manifesto. This article summarises what’s in the Bill and its likely implications for employers in the transport sector.
What’s proposed in the Bill?
If enacted, the Bill would amend the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) by inserting new provisions relating to “specified transport services” in England, Wales and Scotland. The list of specified transport services has not yet been confirmed and will be set out in future secondary legislation but is likely to include at least all of those services covered by The Important Public Services (Transport) Regulations 2017, which set out when additional strike ballot requirements apply to workers in the transport sector.
There are two key aspects to the Bill – minimum service agreements (setting out minimum service levels) and work notices (requiring people to work during a strike).
Minimum service agreements
Under the Bill, transport sector employers and their trades unions would be subject to a new duty to take reasonable steps to agree binding “minimum service agreements”, following consultation of relevant regulatory and representative bodies. In agreeing minimum service agreements, the Bill would require employers and unions to consider a number of factors, including passengers’ abilities to travel to and from work or education and the impact on the economy and the environment. More detailed requirements about the contents and structure of minimum service agreements are likely to be set out in future secondary legislation following a public consultation.
Where the parties fail to agree a minimum service agreement, they may apply to the Central Arbitration Committee, which would have new powers to impose a “minimum service determination” binding the parties. The CAC would also gain new powers to enforce minimum service agreements and determinations against either the employer or the union(s), with the Employment Appeal Tribunal gaining new powers to impose fines on parties who do not comply.
Work notices and restrictions on strike action
The Bill would give transport employers the power to serve a “work notice” on unions which have given them notice of strike action. In a work notice, employers would have to (i) identify the persons required to work during the strike to maintain agreed minimum service levels and (ii) specify the work to be carried by those persons. Employers would be required to consult the union on the work notice as far as reasonably practicable and would not be able to identify more employees in the work notice than are reasonably necessary for the purpose of providing agreed minimum service levels.
Strike action would cease to be protected under TULRCA if a union which is bound by a minimum service agreement or determination fails to take reasonable steps to ensure that the employees identified in the work notice do not take part in the strike. In these circumstances, the employer would potentially be able to secure an interim injunction against the union, preventing it from calling its members out on strike. Unions which breach these new requirements could also face civil liabilities of up to £1,000,000 (following the recent increase in the statutory cap) for calling unlawful industrial action.
Employees who are identified in a valid work notice but nonetheless still participate in the strike would lose automatic protection from unfair dismissal.
Implications for employers
If enacted, the Bill will give businesses operating transport services unique and significant new protections from industrial action. As transport unions will be required to take reasonable steps to ensure that sufficient levels of staffing are maintained during strikes, it is likely that their ability to cause mass disruption through lawful industrial action will be greatly diminished. It is, however, important to note that the Bill does not restrict unions calling for industrial action short of strike, such as overtime bans which have materially impacted services by a number of train operating companies this year.
The new legal framework which would be introduced by the Bill is highly complex and would impose a new administrative and compliance burden on transport sector businesses, as well as trades unions. In particular, negotiating minimum service agreements with trades unions will be an unfamiliar and unpredictable challenge for the transport sector, although lessons might be learnt from continental European countries where similar requirements exist. The Bill provides little clarity over the content of minimum service agreements and their practical impact therefore remains uncertain, with numerous sets of additional regulations required to make it operative. However, it is possible that unions may seek to use this new statutory process as source of leverage for their demands over jobs and terms and conditions.
The Bill would only apply to specified transport services and so would not have a wider impact on the rising levels of industrial action currently seen across the UK economy. The government had previously indicated that it would introduce a wider package of reforms to trade union legislation, including potentially implementing a new requirement for trades unions to hold member ballots on pay offers before calling strikes. The government had also previously suggested that minimum service levels would apply in a larger number of ‘critical’ sectors, including the education and postal systems. The publication of this Bill on the specific topic of minimum service levels during transport strikes suggests that the government has put any plans for wider reform on hold.
Following Liz Truss’s resignation as Prime Minister, there is heightened political uncertainty in the UK. The new government, led by Rishi Sunak, has not officially confirmed its stance on this Bill, but Mr Sunak did commit to introducing minimum service levels during his first leadership campaign this summer. Assuming the Bill continues to be supported by the current government, it is likely to become law (the House of Lords would not be expected to block its progress because it relates to a manifesto pledge). It should be noted, however, that Keir Starmer, the Leader of the Labour Party, indicated in his recent speech at the TUC Conference that a future Labour government would repeal the Bill.