Strikes: DBT publishes minimum service levels 'code of practice' for unions

Draft code removes "onerous" requirement for unions to communicate with their wider membership that a work notice has been issued
Border Force strikes in December. Photo: PA/Alamy

By Tevye Markson

16 Nov 2023

The government has published a draft code of practice on minimum service levels during strikes, setting out the “reasonable” steps unions must take to stay in line with the legislation.

It comes after the government announced last week it would lay legislation to introduce minimum service levels for rail, ambulance and border security staff before Christmas, having passed the Strikes (Minimum Service Levels) Act in July. It also said it would extend the strike-curbing regulation to Passport Office staff.

Under the legislation, employers can issue a so-called "work notice" that identifies staff who must continue working during industrial action, and setting out the work they must carry out to ensure minimum levels of service.

The act requires trade unions to take “reasonable steps” to ensure their members who are identified in a work notice comply.

The four steps outlined in the draft code are:

  • Step 1: Identification of members – Trade unions should identify those of their members who are identified in a work notice;
  • Step 2: Encouraging individual members to comply with a work notice – Trade unions should send an individual communication or notice to each member identified in a work notice to advise them not to strike during the periods in which they are required by the work notice to work, as well as to encourage them to comply with the work notice.
  • Step 3: Picketing – Picket supervisors will be instructed by the trade union to use reasonable endeavours to ensure that picketers avoid, so far as reasonably practicable, trying to persuade members who are identified in a work notice not to cross the picket line at times when they are required by the work notice to work;
  • Step 4: Assurance – Once a work notice is received by the union, trade unions should ensure that they do not do other things which undermine the steps they take to meet the reasonable steps requirement.

Unions will not be required to communicate with the wider membership that a work notice has been issued, accepting arguments put forward in a public consultation that it would be an “onerous” requirement.

The government carried out a public consultation on initial proposals for the code earlier this year and yesterday published its response. It has also removed the requirement in "Step 3" of the proposals that a picket supervisor should “encourage” members identified in a work notice to attend work.

'An attempt to reduce people’s ability to strike'

The Prospect union slammed the code, saying it “is in effect an attempt to reduce people’s ability to strike”, with restrictive rules on member identification, picketing, and complying with work notices.

Its general secretary, Mike Clancy, said: “It is clear that the Minimum Service Levels Act is a mess, a highly partisan law that was pushed through parliament with little regard to the legitimate criticism it faced from all sides in parliament.

“Now we are seeing the government use ill-thought through regulations to make it even harder for workers to take legitimate strike action, and compound the problems that have been caused in the first place by this act.”

In a foreword to the draft code of practice, Department for Business and Trade minister Kevin Hollidrake said it "has been designed to balance the benefits and potential burdens of the reasonable steps, whilst helping to provide clarity for trade unions on maintaining their statutory protection during strike action".

“Ultimately, the code will help all parties to achieve minimum service levels where they are applied and moderate the disproportionate impact strike action can have,” he added.

“Most major European countries, such as France, Italy and Spain, have had some form of minimum service level regime for many years and organisations such as the International Labour Organisation have recognised that such approaches can be an appropriate way of balancing the ability to strike with the rights of the wider public."

Subject to parliamentary approval, the code will be issued and brought into effect by the business secretary.

Hollidrake told parliament the government will also shortly publish separate, non-statutory guidance on the issuing of work notices in relation to minimum service levels.

Read the most recent articles written by Tevye Markson - Just four major departments meet threshold for strike action in PCS pay ballot


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