Under neoliberalism, work has become not only poorly rewarded but very insecure. Since the 1980s, successive laws have been introduced to cement precarity and inequality by limiting or preventing unions carrying out their essential functions: organising, bargaining and going on strike. The latest such law is the Strikes (Minimum Service Levels) Act (MSL), which was approved by parliament in 2023. It is designed to severely restrict or deny entirely the right to strike for groups of workers in six key sectors: education, fire and rescue, health services, nuclear decommissioning. border security and railways.
These are essentially the same sectors identified in the 2016 Trade Union Act, which ruled that industrial action within them must be supported by 40 per cent of the union membership, and at least 50 per cent turnout in the vote. These thresholds were meant to stop, or at least limit, strikes in public services. But the strike wave of 2022 and 2023 saw these high thresholds spectacularly smashed. Small wonder that the Tories felt the need for further anti-union legislation.
Railroading
The government uses regulations to specify what the minimum service levels shall be. These are written by ministers for all employers in the sectors covered by MSL and do not require parliamentary debate – only formal approval. The regulations effectively remove the right to strike for those workers MSL covers.
In rail infrastructure, for example, companies now have the power to enforce the minimum service level of keeping primary routes open between 6am and 10pm. For passenger services, which is relevant to train drivers’ union ASLEF, and light rail (trams, underground railways), the minimum service level is 40 per cent of timetabled passenger services.
In the run up to 2024 strike action by ASLEF, transport secretary Mark Harper said that the rail employers, under the MSL, now have the law on their side to keep the trains running during a strike. MSL also empowered Harper to reject negotiations with ASLEF and instead try to force union members to work. Rail company LNER made the first move and announced in January 2024 that they would implement MSL. ASLEF responded by promising to increase instances of industrial action. On 22 January, LNER backed down by announcing that they would not implement MSL if ASLEF called off their additional action.
LNER’s decision is telling. It emphasises how, under MSL, employers may issue a ‘work notice’ – which lists specific workers and the work they must carry out – but it is not mandatory that they do so. The decision is left to the employers’ judgement. It may be that the employer thinks it is more harmful to the long-term relationship with its workforce and the union to force a group of workers to effectively become scabs. On the other hand, a vindictive employer may name all the union reps in the ‘work notice’, seeking to oblige the shop stewards to cross their own picket lines.
If workers do not comply with such directives, the union itself will be liable for damages claims by the employer. Those named in the ‘work notice’ will also lose any entitlement to pursue an unfair dismissal claim should they fail to attend their workplace and are subsequently dismissed.
Labour’s response
How might the Labour Party respond to this most fundamental assault on trade union members?
It is well established that Starmer was elected Labour Leader, conning much of the membership that he represented Corbynism without Corbyn, with ten seemingly radical pledges that have morphed into five not-so-radical missions. However, one important policy seemed to have survived from when it was adopted by conference in 2019, the green paper New Deal for Working People. It promises action on a wide range of employment rights issues from discrimination at work, job insecurity, zero hours contracts, restoration of collective bargaining and repeal of the anti-union laws.
However, although the green paper remains policy and is supported most strongly by the affiliated unions – particularly by Mick Whelan, ASLEF general secretary and chair of Labour’s trade union liaison organisation – it’s clear that the policy is under pressure from the anti-union voices now leading Labour policy-making. Labour’s 2023 national policy forum recommendations to water down the paper were adopted by the 2023 conference. We may assume that the significantly weaker version is now party policy. We can identify four key areas of backtracking by Labour:
First, The word ‘exploitative’ has been added in front of ‘zero’. This begs the question whether the commitment to ban zero hours contracts will be fully implemented – or only apply to those deemed ‘exploitative’.
A new framework of union rights and freedoms is sorely needed
Second, Labour is now to ‘consult’ on single status of workers, essential to eliminate bogus self-employment (core workers denied proper contracts, pensions and sick pay and other rights and benefits of a contracted employee). The commitment that the party still has to the policy is highly ambiguous.
Third, the commitment to roll out sectoral collective bargaining has now been limited to only the social care sector in the first instance – with merely the promise of subsequent ‘review’.
Fourth, the original green paper promised a repeal of anti-union laws back to 1980. This now seems to have been limited to repeal of the 2023 MSL Act and the 2016 Trade Union Act alone. Three further decades of laws need to be repealed.
The December 2023 TUC special congress carried an important statement on fighting back against the MSL. Presumably, it will not be supported by a Labour leadership risk averse about strikes, picket lines and other manifestations of working-class mobilisation.
A new framework of union rights and freedoms is sorely needed. While Labour will in all probability win this year’s election, whether it will change the world of work for the better is unfortunately an open question. In January, the largest civil service union, PCS, announced it would launch a judicial review against the government’s anti-strike legislation in the Border Force. Such actions, like ASLEF’s militant stance, offer workers real hope for change.
