Strike march from St Thomas’ Hospital, London 1 May 2023. Credit: Steve Eason/Flickr

Resisting the Strikes (Minimum Service Levels) Act

In response to the strike wave, the Tory government is making it more difficult for workers to strike. Ian Allinson discusses the ways workers can resist the latest repressive anti-union legislation.

Most working-class people have seen big real-terms cuts to our incomes in recent years, as wages and benefits have been held down while prices soar. The Tory government continues to make our public services ‘broke on purpose’ while continuing privatisation. Many young people face student debts, unaffordable housing and inadequate pension provision. No wonder more workers are striking back.

Britain already had some of the most repressive anti-strike laws in the developed world, yet the Tory response has been yet more – the ‘Strikes (Minimum Service Levels) Act 2023’ (Strikes Act) – which aims to force workers to scab on our own strikes. At the same time their response to climate, anti-racist and pro-Palestine activism is more repression against protesters.

What does the new law mean?

The Strikes Act allows the government to issue minimum service level (MSL) regulations in six industries: health, fire and rescue, education, transport, border security, and nuclear decommissioning and waste. The regulations specify the level of service required. In December the government issued the first regulations – for border security; NHS ambulance and patient transport; and passenger railways.

Workers in safety-critical industries have nearly always put in place cover during strikes. Indeed, a strike would already be unlawful if it was likely to endanger life, cause serious injury, or expose valuable property to serious harm. The idea that the government ministers who starve our NHS of funds care more than NHS staff about patients is deeply insulting. In the recent nurses’ strikes there were examples where the minimum safe staffing level set by the health unions was higher than on the previous non-strike day. The inclusion of the whole of education and transport makes clear that this law is about tipping the balance of power further against workers, not about public safety. Many employers covered by the Strikes Act run awful services on non-strike days but face no penalties.

Each set of MSL regulations defines the required service level differently. For passenger heavy rail operations and light rail operations such as London Underground, the employers can demand enough scabs to operate 40 percent of timetabled services during a strike. Of course employers will prioritise the 40 percent of services so that they cover a far higher proportion of passenger journeys and miles. For non-emergency NHS patient transport, the minimum service level is ‘as it would be if the strike were not taking place on that day’!

When a union notifies an employer covered by the regulations of a strike, management can issue a ‘work notice’ naming workers they require to scab. If a worker defies a work notice, their strike is unlawful so the employer can discipline or dismiss them. If a union fails to take ‘reasonable steps’ to get named members to scab, the whole strike becomes unlawful, so the employer could seek an injunction against them, sue for damages, or discipline or dismiss any of the strikers. A new code of practice sets out what the government means by the ‘reasonable steps’ required of unions.

Injunctions are temporary court orders, supposedly to preserve the status quo pending a full hearing, which rarely happens. To get an injunction, the employer merely has to show that there is a serious question to be tried, not that they are likely to win. ‘Balance of convenience’ and ‘public interest’ tests are heavily stacked against unions, and unions get little or no time to prepare for hearings. If a union breaks an injunction, this is contempt of court, which can lead to unlimited fines and sequestration (seizing) of assets. Injunctions are the most powerful legal weapon employers have against unions.

Workers in Britain have never had a positive ‘right to strike’, but in 1906 unions were given immunity from being sued for organising strikes over trade disputes. Since 1980 this immunity has been progressively restricted, with ever more complex rules and processes. The complexity means that even where unions try to comply, employers’ lawyers can often find a technicality and ask a judge to grant an injunction to stop a strike.

Steps for producing a work notice. Source: Department for Business and Trade website.

How is the Strikes Act likely to affect the strike wave?

Workers in health, education and transport have all played an important part in the current strike wave, but it has been much broader than that, affecting nearly every industry. Most strikes have won something, but usually only a reduction in the pace at which life gets harder. A few outcomes have been genuine victories, but rather more have been very disappointing to many strikers. After decades with few strikes, the process of recovery is not straightforward.

There are two significant live disputes in industries covered by the Strikes Act, BMA junior doctors and ASLEF train drivers, either of which could see work notices being tried first. Strikes by FBU Merseyside fire control staff and RMT members on London Underground that might have tested the Act were recently called off at the last minute.

These disputes illustrate some of the difficulties bosses face with the Act. BMA and FBU normally provide safety cover anyway. There are acute shortages of both doctors and train drivers. The railways and fire service are both very highly unionised, while BMA membership has soared in connection with the pay disputes. The political blow-back if an NHS employer sacked a doctor for striking would be unimaginable. So in all four cases the risks to workers defying work notices would be relatively low.

The main problem we will face is the legal threat to unions as institutions. No General Secretary wants to be responsible for their union facing unlimited fines or having assets seized. Since the 1980s the anti-union laws have relied on the threat of injunctions putting those at the top of unions under pressure, and then union officials policing their own members.

How are unions responding?

Unions opposed the Strikes Bill as it went through parliament, but made no serious attempt to mobilise against it, focusing instead on parliamentary efforts to delay and water it down a bit. Since the Bill passed, there has been a lot of fighting talk about defying it.

The Trades Union Congress (TUC) held a special Congress on 9 December – the first since 1982 – to discuss resisting MSLs. The statement agreed is open to a variety of interpretations, reflecting contradictory points in a document haggled out between union leaders. The Morning Star Editorial expressed no reservations, a National Shop Stewards Network bulletin said the statement was ‘the basis for the fighting strategy that workers and unions need’ but called for a national demonstration in London, while Socialist Worker argued that it would take rank and file organisation to turn words into action.

Parts of the statement promise legal challenges to MSLs. These may buy time, but the government just rewrites the law when they lose in court. It talks about Labour’s pledge to repeal this legislation (but not all the other anti-union laws). As Sharon Graham said at the Congress, we can’t afford to wait for Labour. We can’t rely on them either – neither the courts nor Labour have protected us from anti-union laws which already made effective strike action unlawful for a significant minority of workers.

The boldest pledge in the statement is that unions ‘Refuse to tell our members to cross a picket line’. If this is carried out, it means non-compliance with work notices. It would also mean an end to the capitulation to previous anti-union legislation. Where members of a union have not voted to strike in a ballot, unions generally advise their members to work normally even if that means crossing the picket line of another union at their workplace, or of members with a different employer. Activists will have to work hard to hold our leaders to this pledge.

If union leaders are serious about defying work notices, they need to launch a serious campaign of education and agitation to persuade members of the need for unlawful strike action to defeat them. So far all I’ve seen is a TUC webinar for reps on 17 January. Whether leaders are serious about it or not – that’s what activists need to do ourselves.

The most specific commitment in the Congress statement is to ‘Mobilise the whole trade union movement to march with the sacked GCHQ workers through Cheltenham on 27 January, to commemorate their struggle, and to recommit ourselves to defiant opposition to Conservative minimum service levels, trade union restrictions and any threat to the right to strike.’ Even here, mobilisation is lacking. There is nothing prominent about either the MSLs or the demo on the GMB, CWU, USDAW, NEU, PCS, Prospect, UCU or RMT websites. It is one of six images on a slider on the Unite website, it is featured on the front page of the Unison website, and NASUWT have a prominent pop-up on theirs. The TUC has yet to contact local Trades Union Councils about the demo, and their web page about the demo has few details of transport organised by the movement. However, many unions are arranging transport.

It is telling that the TUC has chosen to highlight the parallels with the General Communications Headquarters (GCHQ) dispute. In 1984 Margaret Thatcher’s government banned union membership at the GCHQ spy centre in Cheltenham. This led to the TUC calling a day of action on 28 February which saw protests and some strikes – a stronger response than is now proposed. Despite the courage of some workers (who were sacked rather than giving in to the ban) the campaign was a failure. The ban wasn’t lifted until Labour returned to office thirteen years later, after which some workers got their jobs back and received compensation. If we want a model of how to overturn anti-union legislation, the campaign that defeated the Industrial Relations Act 1971 and freed the Pentonville Five from prison would be a better choice.

The TUC statement calls on employers and public bodies to oppose the legislation. Already the Scottish and Welsh governments, along with some mayors and council leaders, have pledged not to use work notices. We need to demand commitments from every employer in the six sectors now. While employers can and do renege on commitments, pledges increase the political and PR cost if they issue work notices later. The pledges go alongside the Congress commitment to name and shame employers who use work notices, to call a demonstration ‘in the event a work notice is deployed and a union or worker is sanctioned in relation to a work notice’, and to ‘Support any worker subject to a work notice, including with support from across the trade union movement, if their employer disciplines them in any way.’

Parts of the statement suggest we can’t be confident that every union will simply defy the Strikes Act. It says ‘Unions will continue to work together to adopt different tactical approaches to non-cooperation and non-compliance. We will support affiliates in deploying novel and effective forms of industrial action to maximise resistance to work notices’. This suggests ducking and diving more than defiance.

So what is likely?

The fighting talk and probable movement response will be enough to deter many employers from wanting to be among the first to use work notices. As in the 1980s, it’s likely that employers controlled by central government or maverick managers in the private or public sector will spearhead the use of new anti-union legislation. More employers may use the threat of work notices to try to negotiate high levels of cover during strikes, undermining their effectiveness. Many union officials may be tempted to go along with this to avoid being at the centre of a storm.

Some union leaders may try to avoid being hit by work notices by not calling strike action that would trigger them. TUC General Secretary Paul Nowak talked of ‘novel and effective forms of industrial action’. We could see a greater use of ‘action short of strike’, despite it being harder to organise and enforce. There is talk of greater reliance on non-strike ‘leverage’ tactics – which rarely centre workers’ involvement, are harder for workers to control, and can only work in a small number of disputes.

Unite’s Sharon Graham told Sky News that the effect of the legislation would be to make disputes escalate and go on for longer, and that she would use the tactics reserved for the most hostile employers (i.e. leverage) against employers which chose to issue work notices. Worryingly, she also said ‘we will not be putting our members into any situation where they find themselves in difficulty’. All action involves a degree of risk, and unlawful action, such as taking part in a strike despite being subject to a work notice, inevitably carries higher risk. Compliance with the anti-union laws isn’t risk-free either as it leaves workers even weaker in the face of employers. Workers themselves need to make informed collective decisions as to what risks are worthwhile. Strong support from unions can reduce the risks of defiance, but can’t wish them away.

Some unions (particularly those outside the TUC) may comply with work notices. In some sectors where safety cover is normal anyway, this could mean a higher proportion of members working on strike days, perhaps counterbalanced by unions calling more strike days.

Whatever the ducking and diving in coming months, sooner or later a group of workers will be faced with an employer who issues a work notice that forces them to choose between ineffective or unlawful action.

It is possible that the first workers hit will not be willing to take unlawful action – this is one of the risks of the TUC’s reactive strategy. The more we can strengthen workplace organisation now, agitate about defying anti-union laws, and build a visible movement that will support any workers targeted, the less likely workers are to feel they have to retreat, duck or dive. Let’s avoid a situation where leaders make radical speeches, fail to prepare, then blame members for failure.

The pressures on union leaders to avoid direct defiance of the new laws are immense – the same pressures that led them to comply with the previous anti-union legislation. So it’s worth looking at what workers do in industries where lawful effective action is already impractical. The best example of this is construction, where subcontracting and (usually bogus) self-employment mean there is no shared employer to ballot and the workforce often changes frequently with the requirements for different trades. Construction workers also face some of the most vicious bosses – with histories of victimisation, blacklisting and corruption. Yet strikes by electricians at large sites in engineering construction are relatively common, and they often win. How is this possible?

Construction strikers refuse to enter a site to start their shift, ‘cabin up’ (refusing to leave the cabin), or walk off a job, without holding a ballot. Sometimes this is the result of a mass meeting, sometimes it results from activists picketing a site. Many strikes are short – ending before unions come under too much pressure to ‘repudiate’ the workers’ action. Activists never rely on the union to officially ‘call’ the wildcat strike. The impact of action is greater because employers don’t get the two-weeks’ notice required for lawful action, after many weeks of balloting. Sometimes employers try to sack strikers, who rely on sticking together and refusing to return unless everyone does. Until 1997, strikers always had to rely on solidarity and numbers for protection, as the law permitted their dismissal.

Sometimes reps try to protect the union and themselves by holding a mass meeting, then all the union reps leave before any vote on action is taken. In construction, workers not employed on a site – including those who have previously been victimised or blacklisted – often play key roles, which is helpful because they don’t risk dismissal. The construction rank and file and Blacklist Support Group have been crucial to winning the argument for unofficial action, initiating and supporting it. In Royal Mail, where there used to be a strong tradition of unofficial action, reps would sometimes arrange a secret signal to let others know to lead a walkout. In all cases, unofficial action comes from below – not waiting for a union to call action or endorse it, but unions’ reaction can vary from hostile to giving a nod and a wink.

Another option (which has been more talked about than tried) is the use of ‘pop-up unions’. These are small, temporary unions that don’t seek to replace the established ones, but to play a different role alongside them. For example, a pop-up union with a handful of members in an employer could quickly ballot them and call action that every employee of that employer could lawfully take part in. A pop-up union would be under no legal obligation to tell anyone but their members named in a work notice to scab. Under the new code of practice a picket isn’t supposed to try to persuade a member of their own union covered by a work notice not to cross a picket line, but they can if the worker is a member of another union or no union at all. With no significant assets, a pop-up union would be under less pressure to comply with the law. This doesn’t get round the need to win all workers to taking the action, or protect individuals who defy work notices. But it’s possible some in established unions might see the encouragement of pop-up unions as a way of dodging the risk of contempt of court for themselves.

Officialdom

The anti-union laws operate by threatening the union as an institution, and relying on the paid union officers (and to some extent the senior unpaid officers) to police the members. While most members see their jobs, pay and conditions as more important than their union’s assets, those most embedded in the union apparatus often start to lose sight of this.

The forms of organisation which are best placed to deliver action outside the legal framework – whether unofficial networks, groups involving people not employed in the workplace, rank and file groupings, or pop-up unions – can all be perceived as a threat to paid officers’ control over disputes. The best officials see the need for rank and file independence, but only a few most don’t encourage it.

The pressures will be particularly acute on those leading large general unions. Any dispute usually only directly involves a small minority of their membership at once. Paid union officials tend to balance between this ‘active minority’ and the ‘passive majority’ of members at any time. They will be calculating whether they are prepared to risk their entire union for the sake of a dispute only involving a small percentage of members.

It will make a big difference if a General Secretary does call action in defiance of the law – more members will respond to a call from the top than if it comes from activists alone. The best way to increase the chances of union leaders defying the Strike Act is for activists to prepare to do it anyway at the same time as demanding they live up to their words.

What activists can do

1. Strengthen union organisation in every workplace.
2. Educate members about the anti-union laws, the TUC statement, and why unlawful action is justified – why not hold a lunchtime workplace or online meeting with guest speakers?
3. Build traditions of solidarity (e.g. fundraising, picket line visiting, delegation work) – including with unofficial strikes.
4. If you are in one of the six industries covered, ask your employer for a pledge never to issue work notices.
5. Get activists to attend the TUC webinar on 17 January.
6. Contact your union branch or region for information about transport for the 27 January demo and build it. Let’s use the demonstration to build networks and argue for a real campaign of defiance.
7. Pass motions through your union structure referring to the TUC statement and demanding that the union adheres to the policy of never asking members to cross picket lines.
8. Build rank and file networks and organisation – most importantly in your own industry and locality, but also wider, for example through Troublemakers At Work.
9. Make sure your branch is affiliated to the local trades union council.
10. Organise meetings of local trade unionists to discuss the Strikes Act and how to defeat it.

A version of this article was originally published on the Workers Can Win website.