The Public and Commercial Services (PCS) union will launch a judicial review against the government’s new minimum service levels regulations.
The union will use the Human Rights Act to challenge the Strikes (Minimum Service Levels) Act 2023, which allows employers to require workers to come in during strike action to provide a minimum level of service.
PCS will challenge the new law in its use against strikes within the Border Force, but TUC general secretary Paul Nowak has indicated further legal challenges could come down the line.
PCS will argue that the new regulations contravene the right to strike enshrined in Article 11 of the European Convention on Human Rights.
Minimum service levels
Minimum service levels: work notices guidance published
Outgoing PCS chief Mark Serwotka announced the union’s plans at a rally to mark the 40th anniversary of a controversial ban on trade unions at GCHQ in Cheltenham.
He said: “Forty years on from Margaret Thatcher banning unions at GCHQ, a Conservative government is once again attacking trade unions.
“So it’s fitting today, as we mark the courage and determination of those workers who refused to hand in their trade union membership, that I can tell you we will be fighting this new injustice in the courts.
“It is a fundamental human right of any worker to withdraw their labour to protect their terms and one we shall defend on behalf of our members in the Border Force.”
The TUC will “stand with PCS every step of the way” according to Nowak.
He said: “These new minimum service level regulations represent an unprecedented attack on our fundamental right to strike.
“Mark my words. This case is just the beginning. We will use every lever at our disposal to fight these cynical laws. These past few weeks have shown that these laws are unworkable. Any half-decent employer will steer well clear of minimum service levels.
“Ministers have designed these laws to escalate disputes – not resolve them. They’re undemocratic and likely illegal – and they’ve dragged us further away from European democratic norms.”
Nowak said any employer making use of the regulations would “face the full force of the union movement”.
Train operator LNER, which has said it will impose minimum service levels during strike action next month, will now face five additional days of strikes as a result.
Matt Wrack, general secretary of the Fire Brigades Union, added his union’s voice of support.
He said: “In its final months in office, this dying Tory government is seeking to prevent workers from striking even when they have a democratic mandate to so. In the fire and rescue service, as in other sectors, this could amount to a de-facto strike ban.
“The trade union movement cannot and will not accept this attack on basic democratic rights. The Tories’ agenda is about driving down wages and conditions while the rich get richer.
“The TUC is committed to a campaign of mass resistance to the Minimum Service Levels Act, up to and including non-compliance, and we look forward to a Labour government repealing both it and the 2016 Trade Union Act within its first 100 days.”
Neil Todd, partner at Thompsons Solicitors, representing PCS in the challenge, said minimum service levels would be difficult to justify in a regime that is already restrictive of trade union rights.
He said: “The Border Security Minimum Service Regulations provide an unlimited freedom to undermine the right to strike, which we contend is unlawful as it exceeds powers under the Strikes Act. The government has been given 14 days to respond to our letter.”
Minimum service regulations for rail, borders and ambulances came into force in December.
The law sets out that border security services should be provided at a level that means that they are no less effective than if a strike were not taking place. It also aims to ensure all ports and airports remain open on a strike.
A consultation on their use in schools closes this week.
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