Does the current rail dispute justify yet more reform to strike legislation?

Out-Law Analysis | 17 Jan 2017 | 11:14 am | 2 min. read

OPINION: With amendments to toughen up trade union legislation waiting in the wings, rushing through yet more changes in response to recent rail strikes would likely only further polarise relations between employers and unions.

Writing in The Telegraph this weekend a group of 50 Conservative MPs proposed new legislation which would ban strikes altogether on critical public infrastructure unless a court thinks the action is proved “reasonable and proportionate”. The plans, which will be introduced to parliament by way of a private members’ bill later this month, were prompted by the current Southern Rail industrial dispute, which is causing abject misery to commuters in the south of England.

While the MPs’ demands are understandable given the limited nature of the changes to trade union laws which are currently underway, the RMT transport workers’ union has already said it will ignore any such attempts - making an overhauled mediation service a much more constructive answer, and one which does not risk further breakdown in the employer-union relationship.

It is clear that this dispute should not have gone on for as long as it has, and that the parties involved need a forum to properly communicate and understand the others’ issues. The government has already intervened to dissuade employers and employees in dispute from proceeding to tribunal without a meaningful attempt to resolve their personal employment issues through mediation.

For industrial disputes, an up-scaled and more powerful Acas would be required - backed, perhaps, by allowing the government to actively intervene and knock collective heads together where the public interest requires it; or by preventing unions from proceeding with industrial action, whether supported or not, until they have engaged meaningfully in the process.

Something as fundamental and important as strikes on critical public infrastructure should not be the subject of a private members’ bill, which may or may not make it through the parliamentary process. Furthermore, this would just create another arena for the relationship between the employer and the unions to become polarised, and could escalate disputes to an even greater extent.

In the meantime, we already have amendments to toughen up trade union legislation waiting in the wings. Among other things, they set a new 50% voting turnout requirement for all ballots proposed on industrial action, along with an additional requirement of 40% support for industrial action among non-ancillary staff regardless of turnout in relation to important public services, including rail services.

Over the weekend, it was wrongly  suggested that these ruleswill definitely go live on 1 March 2017. – This is certainly the intention but, this will require parliamentaryapproval  by then failing which they will only come into force 21 days after such approval. Not only that, there has not yet been any definitive indication when the overarching amendments in relation to ballots, including the 50% voting turnout requirement and 40% support requirement in relation to non ancillary staff in important public services, and extension of notice of industrial action to employers will come into force, although this is likely to be at the same time.

Whilst these increased requirements, along with others like the longer notice for employers of industrial action and the yet-to-be-confirmed Conservative manifesto promise of lifting the ban on agency workers is likely to be welcomed by most employers, this will not put an end to well-organised groups of workers supported by unions like the RMT disrupting commercial and public enterprises by strike action, and action short of strike such as overtime bans.

Irrespective of where your sympathies lie in the Southern Rail dispute, it is clear that something needs to be done, and urgently. However, rushing through  ‘anti-strike law’, which the union has said it will ignore, is not the answer.

Diane Nicol is an employment law expert at Pinsent Masons, the law firm behind Out-Law.com.