News that rail workers in England and Scotland are moving towards industrial action has seen the UK government reportedly draw up plans to counter the effects on passengers and food distribution. This could involved imposing a minimum service level on rail workers, effectively curbing their right to strike. But aside from questions over how this would work practically and legally, there’s good reason to believe such measures would only make the situation worse.
On May 24 2022, the results of the 17 industrial action ballots from the National Union of Rail, Maritime and Transport Workers showed overwhelming support for action. If the mandates are implemented, this coordinated industrial action is set to trigger what the unions are dubbing a “summer of discontent”. The disruption could extend northwards too, as rail workers in Scotland ballot for action as well despite Scotrail being in public ownership since April 1 2022.
Both north and south of the border, workers are concerned about pay rises, workloads and job security. Government proposals for rail reform are predicted to see massive cuts in jobs and ticket offices.
They will also put greater pressure on workers’ living standards and livelihoods at a time when inflation stands at a 40-year high. And they raise questions about passenger safety because responsibility for safety-critical tasks will be loaded onto fewer shoulders.
The prospect of a nationwide rail strike has rejuvenated the Conservative party’s longstanding proposal to ensure minimum service requirements during industrial action. The Conservatives have long seen the the RMT union as troublesome in their eyes as the militant influence of former leader, Bob Crow, continues.
Restricting industrial action
The government plan is to require that in any instance of industrial action (such as a strike or an overtime ban), a minimum number of staff continue to work. The idea was first touted by the Tories during the the long-running rail disputes of the mid to late 2010s. In their 2019 general election manifesto, they pledged to legislate on rail service during strikes.
Quite how this would work though is as yet unclear. With 22 training operating companies of different sizes plus those responsible for the rail infrastructure and freight services, it would be difficult to establish absolute or relative numbers of staff required for a minimum level of service. Similarly, defining what a minimum level of service is, or who should deliver would be a fraught process.
Would a Sunday or bank holiday service, for instance, be considered enough for weekday commuters? If a union had few members in one particular company, would the company only need to use non-union staff? If a union had a reasonable level of membership and the company needed some union staff to work, which ones would these be?
It’s easy to imagine how this kind of dilemma could lead to individuals being compelled to work at certain times, or unionised workers being treated differently from one another. This could lead to employment tribunal cases, court actions and even judicial reviews.
If the logistics of the plan are yet to be clarified, the government’s intention is clear: it aims to undermine the extent of industrial disruption. Many trade unionists will see this as a denial of the right to an effective strike and so to strike action itself.
However, the legislation may not have the desired effect. If the Tories had been a little more strategic in their planning, they would have passed this legislation well in advance. Widespread industrial action has, after all, long been predicted. But if implemented now, the legislation would not be on the statute book in time to avert the impact of the proposed strike.
Meanwhile, research suggests the Conservatives’ previous attempt to limit strike action by rail (and other essential) workers -– by introducing minimum voting thresholds –- has not achieved its aim. And further legislsation alone will not solve the issues being faced. If rail workers are prevented from striking, with their grievances still unresolved, research suggests they will find other ways of expressing their discontent.
For example, there will be nothing to stop them taking “mass sickies”. This would not be unofficial and unlawful strike action in the eyes of the law so the unions would not be in jeopardy as long as they did not encourage such action. Already in Scotland, unhappy train drivers are refusing to work voluntary overtime, leading to massive cuts in service.
This proposed legislation fits with further moves the government is making to undermine the influence of unions, including the National Education Union and Fire Brigades Union. It is also planning to further limit firefighter and rescue workers’ rights to collective bargaining by abolishing the current national bargaining machinery.
If the rail strikes go ahead, the most productive way forward is precisely this: sessions of collective bargaining between the unions and employers. And, if the government was minded to provide the potential for a permanent peace on the railways, it would at least investigate the role that compulsory third-party arbitration could play.
Such arbritration by an independent adjudicator comprises taking representations from each side and then making a decison which each side is compelled in law to accept. As research suggests, most abritration tends to split the difference between the two sides. Simply removing the right to strike without offering an alternative dispute resolution mechanism is a recipe for further discontent.