Trade unions have described a draft code of practice on minimum service levels as “unworkable” after the government published the “reasonable steps” they should follow when calling a strike under the new legislation.
The code outlines what unions should do when calling industrial action in six affected sectors including health, education, transport and fire services. It details what unions should do when an employer issues a “work notice” compelling its members to work despite a strike taking place.
The Strikes (Minimum Service Levels) Act 2023 requires unions to take reasonable steps to ensure that all members identified in a work notice comply.
Where an employer decides to issue a work notice, it must be issued to the trade union a minimum of seven calendar days prior to the strike day unless a later day has been agreed with the union. Once issued, the work notice can be varied up to four calendar days prior to the strike day.
The union must then identify whether the individuals on the work notice are members, and then issue a “compliance notice” to advise them not to strike. This should be done electronically where possible, or by first-class post if not.
The Department for Business and Trade has published a compliance notice template that it recommends unions use.
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The TUC has said the timescales placed on union officials are unrealistic. Identifying hundreds or thousands of workers in a union’s membership from a varied work notice, potentially over a weekend, could give them as little as two working days to comply. A spokesperson told Personnel Today that the government was “setting unions up to fail”.
TUC general secretary Paul Nowak said: “These Conservative anti-strike laws are a dog’s dinner – this shambolic, unworkable legislation will frustrate employers, workers and unions alike.
“In their rush to attack unions, ministers have produced statutory guidance which makes an already-dire piece of legislation even worse. Rather than dealing with the problems working people face, the government is trying to tie unions up in more red tape.”
The code also outlines steps that unions should take around picketing, such that workers on a work notice are able to attend the workplace, and assurances that the union does not undermine the steps in the code. Failure to follow the steps in the code risk trade unions losing their statutory protection from liability and employees losing their automatic protection from unfair dismissal.
Will employers issue work notices?
While the minimum services levels rules have become law and the government plans to enact legislation for ambulance, rail and border security staff before Christmas, it is unclear how employers will handle their right to issue work notices.
NHS Providers, whose members have borne the brunt of strikes by doctors, nurses and ambulance staff over the past year, has said it believes that the minimum service levels legislation would damage local and national relationships with staff more than it would mitigate disruption.
In its formal response to a government consultation in May 2023, NHS Providers said: “We believe that MSL proposals would encourage trade unions to take more action short of strikes, such as working to rule. Trust leaders have clearly told us that this is much harder to plan for and manage than all out strike action, tending to be longer lasting and more frequent.
“We have also identified a number of anomalies in the drafting on which clarification is required. It remains unclear if an employer will be obliged to give work notices or can choose not to. It is not stated if there would be repercussions from DHSC or NHS England for a trust not issuing work notices.”
The TUC is holding a special congress next month, the first of its kind since 1982, to discuss the next stage of campaigning against the government’s “anti-strike” laws. Labour has said it would repeal the legislation if it wins the next general election.
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