Civil service unions fight government's strike-breaking legislation

FDA and PCS support challenge against "unlawful" regulations "that undermines the fundamental legal right to strike"
The government has attempted to lesson the impact of a summer of strikes by changing regulations. Photo: ZUMA/Alamy

By Tevye Markson

22 Sep 2022

Civil service unions have joined a legal challenge against changes to government regulations which allow agency staff to cover for striking employees.

The FDA, PCS and nine other unions have begun legal proceedings against the new government regulations, which were introduced in July to minimise the impact of industrial action amid a series of disputes in various industries over pay and conditions.

The 11 unions launched the judicial review because they believe the rules, introduced by the Department for Business, Energy and Industrial Strategy, are “not only wrong, but unlawful”, breaking both domestic and international law.

FDA assistant general secretary Lucille Thirlby said the union is “proud to support this challenge”.

She said: "During a cost-of-living crisis, the government should be working to resolve industrial disputes, not stoking them with legislation that undermines the fundamental legal right to strike.”

Although the FDA members is not currently planning any strikes, it said in a statement on its website that it “recognises that the right to strike is a fundamental British liberty and attacks against this cannot go unchallenged”.

PCS general secretary Mark Serwotka said the new regulations are a continuation of "40 years of repressive legislation designed to stop workers taking effective industrial action to protect their interests".

“The attacks on collective bargaining have resulted in an enormous drop in workers' living standards and PCS is proud to stand alongside other trade unions in bringing this judicial review to stop the government’s plans dead in their tracks," he added.

The 11 unions taking action said BEIS failed to consult unions over the changes – a requirement of the Employment Agencies Act 1973 – while a BEIS spokesperson said the government had fully consulted on the proposals back in 2015.

The unions, which are being represented by Thompsons Solicitors LLP, are also arguing that the regulations violate fundamental international trade union rights.

Richard Arthur of Thompsons Solicitors LLP said: “The right to strike is respected and protected by international law including the conventions of the ILO, an agency of the United Nations, and the European Convention on Human Rights.”

Trades Union Congress is supporting the 11 unions that have launched the judicial review, while Unison and The Teachers' Union have already launched legal cases against the government over the regulations.

These unions represent more than four million workers from a diverse range of sectors.

The agency worker regulations were implemented by chancellor Kwasi Kwarteng in his previous role as business secretary.

In an announcement on 21 July, Kwarteng said: “Today we changed the law to allow businesses impacted by strike action to hire skilled, temporary workers to mitigate disruption.

“This was a criminal offence. Now it’s an option for business. We will not let trade unions grind our economy to a halt.” 

A government spokesperson said: “As we have said before, we make no apology for taking action so that essential services are run as effectively as possible, ensuring the British public don’t have to pay the price for disproportionate strike action.

“Allowing businesses to supply skilled agency workers to plug staffing gaps does not mandate employment businesses to do this, rather this gives employers more freedom to find trained staff in the face of strike action if they choose to.”

The government said it is confident that the changes are compliant with domestic and international legal obligations.

Allowing business to use agency workers does not stop an individual’s ability to strike, the government spokesperson said. They also pointed out that agency workers can choose to decline any assignment they are offered and are under no obligation to accept a role replacing staff during strikes.

Workers in rail, bus, courts, universities, docks and other industries have taken strike action over issues such as pay, pensions and job cuts this summer.

More strikes are set to follow, and civil servants could soon join in, with PCS, the biggest civil service union, to begin balloting its members on strike action on Monday.

New business secretary Jacob Rees-Mogg, who will battle the unions over the regulation changes, has previously called strikers "selfish". Prime minister Liz Truss vowed during this summer's Conservative leadership election campaign to take “tough and decisive action to limit trade unions’ ability to paralyse our economy” within 30 days of becoming prime minister.

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