DBT consultation on strike-curbing plans labelled a 'sham'

Some Border Force officials will be obliged to work through strikes – or risk being sacked – under government proposals
Border Force PCS officials picket outside St Pancras International Station in February. Photo: SOPA Images Limited/Alamy

By Tevye Markson

29 Aug 2023

The Department for Business and Trade's consultation on its plans to ensure minimum service levels are met during strike action is a "sham", the Trades Union Congress has said.

The department has launched a consultation on a new draft statutory Code of Practice which sets out the "reasonable steps" a trade union should take to be compliant with the Strikes (Minimum Service Levels) Act 2023.

The law, which was passed in July,  gives ministers powers to ensure public servants in certain sectors continue to work during strike action. It will initially be used for border security, passenger rail, and some emergency services and will mean some Border Force civil servants could be obliged to work during periods of industrial action or risk losing their job.

The six-week consultation on the government's planned implementation of the law was launched on Friday and will end on 6 October. DBT said it is "particularly interested in the views of employers and trade unions".

The draft Code of Practice that the consultation seeks views on outlines that unions will be asked to:

  • Identify the workers and the work required to secure the minimum service level
  • Encourage them to comply with a work notice and not take strike action for a set period and warn them they could face disciplinary proceedings and potentially be dismissed if they ignore this
  • Communicate to their wider membership that some members are required to work through strikes
  • Take reasonable steps to ensure union members who are identified in the work notice are not encouraged by those on picket lines to take strike action
  • Ensure that they do not undermine any of the above steps and correction actions by any union officials or members which may undermine them. Unions could be held liable if they do not do this.

Paul Nowak, general secretary of the TUC, said: "This is a sham consultation. Ministers have ignored a mountain of evidence on how these laws are unworkable and will escalate disputes.”

The TUC, which represents more than. 5.5. million working people in 48 unions across the economy, including civil service unions PCS, Prospect and the FDA, has said it will fight the legislation “all the way” and is “exploring all avenues”.

“Our message is loud and clear,” it said. “The entire trade union movement will rally behind any worker sacked for exercising their fundamental right to strike.

“We won’t stand by and let workers get sacked for defending their pay and conditions. And we won’t rest until this act has been repealed.”

When the act was passed last month, Mike Clancy, general secretary of Prospect, told CSW the union expected a "cursory consultation which will do nothing to dilute the impact of this toxic and unworkable legislation". PCS has previously labelled the legislation "reprehensible, provocative and vindictive" and has said it will "fight the legislation every step of the way". 

Business minister Kevin Hollinrake said the legislation aims to balance the right to strike with the public’s "right to access essential services and get on with their daily lives".

“This consultation will give trade unions, employers and workers a chance to feed back on whether our proposals set out a clear and fair process for trade unions to follow to ensure members comply with a work notice," he added.

The government is also currently consulting on the specific implementation of minimum service levels in the border security sector, with similar consultations having already taken place for ambulance and fire and rescue services and passenger rail.

This other, related six-week consultation on border security will end on 21 September. In a foreword to the document, home secretary Suella Braverman said minimum service levels in the border security sector will initially be focused on Border Force under the Home Office's proposals.

“In the first instance, we are considering the key border security services delivered by Border Force – which is at the forefront of all our work to secure our border,” she said. “The consultation therefore asks, in particular, for your views on how we should construct a minimum service level for Border Force. I would however be keen to understand whether you think this is the right way forward – and if not, to hear your suggestions about which other organisations should be included, in order to ensure we continue to protect border security.”

The Home Office said it expects to lay the statutory regulations which will set out the finalised border security minimum service levels in late 2023 or early 2024, "with a view to making the MSL available for use at the earliest possible date thereafter".

Border Force staff, who are represented by PCS, walked out several times in 2022 and 2023 over low pay, including over the festive period last year. The government responded by drafting in hundreds of Army personnel in to provide emergency cover. 

The now-defunct Department for Business, Energy and Industrial Strategy said last year it did not initially plan to introduce the powers for border security, education, other health and transport services and nuclear decommissioning as it expected to be able to reach a “sensible and voluntary agreement” on minimum service levels with unions. But DBT, which took over responsibility for the legislation, launched the border security consultation earlier this month.

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