Out-Law News

Unions launch legal challenge against UK’s ‘strike-breaking’ agency worker laws

Emma Noble tells HRNews about the government’s various proposals to limit strike action


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    Trade unions have launched legal proceedings against the UK government against what they describe as the government’s ‘strike-breaking’ agency worker regulations. As the Guardian reports, eleven trade unions, led by the TUC, have sought permission for a judicial review of the new regulations which were brought forward the regulations in July amid an increased number of strikes ranging from train drivers to dockers and barristers.

    The unions argue that the regulations are unlawful on two grounds. First, that the then Secretary of State for business failed to consult unions, as required by the Employment Agencies Act 1973. Secondly, that the new regulations violate trade union rights protected by Article 11 of the European Convention on Human Rights, which protects the right to form and join a union.

    This is the second action of note taken by the unions’ recently. Earlier this month the TUC reported the government to the United Nations labour standards body, the ILO, for what they describe as attacks on workers’ right to strike, something the Guardian reported at the time. It was triggered by the pledge from new Prime Minister, Liz Truss, to crack down on unions. She said she would legislate for minimum service levels on critical national infrastructure in the first 30 days of government under her leadership. 

    Frances O’Grady, the TUC general secretary is quoted in the piece. She says the government is seeking to limit workers’ ability to bargain for better wages just when inflationary pressures are reaching their peak. She said, ‘threatening this right tilts the balance of power too far towards employers and breaches the legal obligations ministers signed up to in government.’ She is referring to the Conservatives’ 2019 policy which promised a minimum service should operate during transport strikes.

    For that ILO submission, the TUC has produced a 31-page report that sets out numerous changes that have either been enacted or proposed by the government, which would impede workers’ ability to strike, including the controversial new law that allows organisations to use agency workers while their employees are on strike. The TUC argues those changes would impinge on rights of freedom of association and collective bargaining that should be guaranteed by ILO conventions ratified by the UK.

    The ILO’s powers are limited – they can’t intervene directly in the UK government’s plans – but they do have the power to censure reports from the UK as a signatory to its conventions which would be embarrassing for the government which regularly comments on rights in other countries. 

    So, let’s get a view on this and whether it matters. Emma Noble is an industrial relations specialist and earlier she joined me on the line from Birmingham to discuss it. Given we’ve already seen the lifting of the ban on using agency workers during strikes, albeit now subject to a challenge. I asked what further changes Liz Truss is proposing:

    Emma Noble: “Yes, so she's previously said that she wants to see minimum service levels during strikes if it risks affecting critical national infrastructure. So, that's one. She also wants to raise the voting threshold for strike ballots, again just making it more difficult for strikes to get off the ground. To that end she wants to increase the minimum notice period for strikes, she wants to increase in to four weeks. Another one is bringing in a cooling-off period so the unions can no longer strike as many times they like in a six-month period after the ballot. She also wants to end tax free payments from trade unions on strike days. There are quite a few more, but those are the ones that stand out, I think.”

    Joe Glavina: “Will Liz Truss get them through parliament do you think?”

    Emma Noble: “Well, some of them have already been implemented, so the lifting of the ban on agency workers, for example. Also, some of the points such as the limits placed on pickets and the prohibition of online intimidation are, to some extent, already covered in separate guidance or legislation. For example, the Code of Practice on picketing, which is already in existence, limits the number of picketers to six, and there's already some legislation to prohibit unlawful intimidation. So, whilst the Code of Practice isn't codified in statute, yet, even if that did happen, I don't think it will upset the unions in the same way as the lifting of the ban on the use of agency staff has done, given the existence of the Code already. So, it’s more a case of the collective impact of lots of smaller changes that concerns the unions and that's really what the challenge to the United Nations was all about and, actually, some of the proposals might also be useful for unions and employees as much as it is for employers. 
    In that I'm thinking of the proposal to extend the notice period for strike action from two to four weeks, that might actually be useful for employees so that they can plan for any reduction to their pay as a result of their pay being deducted for participate in the strike action.”

    Joe Glavina: “The lifting of the ban on using agency workers during strikes was very controversial. That’s now in force, albeit subject to judicial review it seems. How is it playing out?

    Emma Noble: “Yes, clients are understandably being pretty cautious because, as you say, this is controversial, and I think clients are mindful of the fraught industrial relations landscape out there at the moment. So, if employers are considering this as part of their contingency planning, then, assuming they are unionised, they need to be prepared for the inevitable backlash over this. So, it's important for clients to keep engaging with, and talking to, their staff and the unions and there's an important role for HR to play there and spelling out, in very clear terms, why they're considering the use of agency workers to cover those on strike and explaining how they need to keep operations going, that they’re trading in a difficult and challenging economic climate, and the need to keep the business from going under, they want to protect jobs, and this will help to achieve that, etc. So, the communication piece is absolutely crucial. I should add, the use of agency workers is likely to be even more contentious where the business doesn't already engage them. So, in that case, those communications become even more important.”

    Joe Glavina: “So far, since the ban was lifted, we’ve seen very few reports of business using agency workers in this way. Why is that? “

    Emma Noble: “Well, I don't think it's the panacea that the government have tipped it off to be and that's for a number of reasons. So, in many cases the striking workers have a particular skill set that isn't easily replaced by an agency worker. So, for example, the recent train drivers in the case of the rail strikes, and the criminal barristers who have been striking recently. In many cases the agency workers simply wouldn't have the skills required to cover the role. Also, we've heard from the REC that agencies aren't keen to walk into these disputes. Generally speaking, agency staff have got plenty of work available out there at the moment so why would they choose a role that requires them to cross a picket line versus one that doesn't? So that's definitely a big factor.”

    Joe Glavina: “So, in summary, what’s the advice to HR, Emma?”

    Emma Noble: “Yes, so the key is preparation, pre-planning, it's to sit down and work out as an organisation where you think, if you are heading for industrial action, the trade union can cause maximum disruption, or maximum embarrassment, with minimal effort, to have a think about where the trade union might target, and it might not even be traditional industrial action. So, in many cases we're seeing unions rely on leverage campaigns to exert pressure on the employer, using social media to garner support - Unite, for example, use that strategy a lot - and it can be really effective. So, ask yourself, are there any events coming up which you may be sponsoring or relating to your ESG social responsibility agenda, which the union might target with protesters. Likewise, with industrial action, are there particular pinch points within your organisation where, if they pull out a few workers, it can actually bring a much wider part of the organisation to a standstill. So, HR teams need to be alive to all of these things, plan carefully and get the communications right. That's the overall message to clients Joe.”
    The TUC’s report was published on 6 September, is 31 pages long and is available to download from the TUC’s website if you’re interested. We’ve put a link to that in the transcript of this programme.

    - Link to TUC report to ILO


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