The Department for Business and Trade has launched the fresh consultation on the use of agency workers to cover employees who are on strike, which would see the repeal of regulation 7.
It follows July’s High Court ruling that repealing agency worker strike laws was unlawful. Since 10 August, it has been unlawful for employers to engage agency workers to cover staff who are on strike action after the judge deemed the repeal of the ban “unfair, unlawful and irrational”.
The consultation is seeking views on whether the government should repeal regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which prevents the supply agency workers to cover the duties normally performed by a worker who is taking part in a strike or other industrial action.
Other than during the period after former business secretary Kwasi Kwarteng repealed the agency worker ban in summer 2022, regulation 7 has been enforced in legislation since 1976.
The government previously consulted on repealing the ban in 2015 but chose not to go ahead with the repeal.
The High Court this summer dismissed the government’s argument that it had consulted on the repeal in 2015, for which it claimed it was “highly likely” that the outcome would not have been substantially different had there been further consultation.
The court did not, however, make any finding on the compatibility of repealing the regulations with Article 11 of the European Convention on Human Rights, which unions that brought the case against the government also challenged.
The potential repeal of regulation 7 would apply in England, Scotland and Wales but not in Northern Ireland. In Wales, the Trade Union (Wales) Act 2017 would limit the effect of any potential repeal for public sector employers in Wales.
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Business secretary Kemi Badenoch’s provisional view is that repealing regulation 7 for all sectors is the “most appropriate course of action”.
TUC general secretary Paul Nowak said: “The Conservatives’ humiliating High Court defeat should have spelled the end of this cynical law, but now they are resurrecting the same irrational plans.
“Allowing unscrupulous employers to bring in agency staff to deliver important services risks endangering public safety and escalating disputes. Agency recruitment bodies have repeatedly made clear they don’t want their staff to be put in the position where they have to cover strikes. But ministers are not listening.
“The government’s own impact assessment is clear – this change will poison industrial relations and drag out disputes. This is the act of a desperate government looking to distract from its appalling record.”
A new impact assessment, published today, says the change will result in a “worsening in the relationship between employers and workers – which could lead to more prolonged strike action in the short-term”. It also suggests it could weaken striking workers’ ability to improve or maintain terms and conditions if the effectiveness of the strike is reduced through allowing business another means of mitigating the economic cost of a strike.
The Recruitment and Employment Confederation’s chief executive Neil Carberry last week said: “The announcement of a consultation on whether to remove the prohibition on use of agency workers in strikes is a disappointment, given the scale of opposition from employers and workers to the previous proposal. We will represent the views of agencies fully in response to the consultation.
“Neither agencies nor trade unions think this change promotes effective strike resolution or protects agency workers. Strikes are industrial disputes within a single industry or firm. Inserting a third party like this into an industrial dispute may end up extending the dispute, not least by inflaming tensions.
Agency recruitment bodies have repeatedly made clear they don’t want their staff to be put in the position where they have to cover strikes. But ministers are not listening” – Paul Nowak, TUC
“It is also puzzling that the government assumes agency staff will choose a role that requires them to cross a picket line versus one that doesn’t, when we have 2 million job postings in the UK.”
Repeal of regulation 7
The Department for Business and Trade says in the consultation document that any decision to repeal regulation 7 would not oblige employment businesses to supply agency workers during strikes. “What it would do is offer employment businesses more freedom to make their own choices,” it said.
“We do, however, recognise that the proposed change is likely to be strongly opposed by some who argue that it will, have a ‘chilling effect’ on workers’ ability to strike. In our view, the evidence does not currently support this.”
It said that during the time regulation 7 was repealed, there was a significant increase in the number of working days lost to industrial action, which “would suggest there had not been a material chilling effect”.
The consultation asks respondents four main questions:
- Can you provide views and evidence on the effect that regulation 7 has on employment businesses, hirers, and agency workers?
- What impact do you think the repeal of regulation 7 would have on workers and the wider economy and society?
- What are the sectors where repealing regulation 7 would be most applicable and do you think there are sectors it should not apply to?
- Do you have any views on the methodology used in the impact assessment and does it represent all the likely costs and benefits?
The department has said the consultation closes on 16 January 2024.
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