ASLEF Consultation Response – Department for Business & Trade - Minimum service levels: Code of Practice on reasonable steps

The Department for Business & Trade carried out a consultation between 25/08/2023 and 06/10/2023 on their draft Code of Practice on reasonable steps unions should take to be compliant with minimum service levels (MSLs). 

We have continually highlighted our opposition to MSLs and have highlighted issues in the legislation throughout consultations and evidence submissions. The Department for Business & Trade have drafted a code of practice which will be used as a guide for reasonable steps that unions should take to be compliant with an MSL below is our response to their draft. 

ASLEF Consultation Response – Department for Business & Trade - Minimum service levels: Code of Practice on reasonable steps

1. The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train driver’s union representing just under 22,000 members in train operating companies, freight companies as well as London Underground and light rail systems.  
    
2. As the Strikes Minimum Service Levels Act 2023 (MSLs/ the Act) will come in to force on the railways, it will remove the right to strike from any of our members that are named on work notices, as such we are fundamentally opposed to the Act’s introduction and cannot see how removing an individual’s right to strike, to service another individual’s need to use public rail transport is sensible, nor can we see how it is appropriate or proportionate action to be taken by the UK Government.        
              
3. We also believe that the MSLs will not work and will lower the UK’s international standing by highlighting a failing government’s attempt to legislate away their problems. This legislation has been introduced following the passing of the Trade Union Act 2016 which already hinders the right to strike and ensures greater interference from the state with trade union internal affairs. We know that the rail industry does not want this legislation and it has been pig headedly forced upon employers and rushed through the Houses of Parliament, highlighting a failure of the government to grasp the importance of good industrial relations. It is no surprise that the ongoing pay disputes on the railways are all with employers under the control of the Conservative Westminster Government whilst deals have been made in Wales, Scotland and with open access operators and freight operating companies, it is all part of the UK Government’s anti-union and anti-worker stance.        
    
4. The MSLs do not function to help resolve disputes, in fact they could prolong them as the government’s own impact assessment indicated[1]. The Act will ultimately cause greater strain on industrial relations and a greater toll on the mental health of workers as they are locked in long running disputes with their last resort, the right to take strike action, removed. Due to this added stress, we hold concerns around the safety implications that MSLs will have on the railways for both the staff and travelling public.
    
5. Further to point 4 the nature of the shift patterns on the railways could remove the right to strike from a large amount of workers, due to how a working day is often split between two or three workers. This would further encourage action short of strike to enable members to take action rather than always having their right to strike blocked due to the nature of shift patterns. This could ultimately lead to longer running disputes and greater industrial strife.
    
6. The draft code itself seems to go beyond the scope of the Act by attempting to introduce guidance that is not mentioned in the Act, such as the focus on picketing supervisors.    
    
7. Whilst this draft code outlines the ‘reasonable’ steps a union should take to ensure that it maintains its protection from certain liabilities in tort, there is little focus on what an employer should do or their punishment for any unreasonable actions they take such as continually misidentifying workers or blocking an unreasonable number of workers from taking strike action.           
              
8. With the above in mind, and as the UK Government is intent on stopping workers from taking strike action we have considered the department’s draft code of practice and consultation and below is ASLEF’s response.         

Question 1

Paragraphs 15 to 20 of the Code set out the first proposed reasonable step, ‘identification of members’. Is there anything else, or alternatives, unions could do prior to or immediately after receiving a work notice to facilitate the following steps?

9. We do not believe that paragraph 18 should be suggested. It is not appropriate for data around union membership to be held and shared between employers and unions prior to work notices being required. Employers are not entitled to know whether a worker is a union member and it is not appropriate to start divulging this information as it could ultimately lead to employers treating staff differently due to their union membership. Employers could be spurred on to mistreat union members and activists by the anti-union legislation which has been introduced by successive Conservative Governments. There is a long history of union activists being targeted and blacklisted[2] and the code suggesting sharing of this information puts too much trust in the good will of employers and ultimately runs the risk of UK GDPR breaches due to union membership being covered by Article 9.  
    
10. We are concerned with the ability of employers to vary work notices at short notice. Currently trade unions must give 14 days’ notice of industrial action, the employer, under the Act will then have 7 days to then identify and notify the workers who will lose their protections from unfair dismissal and essentially be blocked from taking strike action. However, the work notice can then be varied by the employer before the end of the 4th day before a strike, this leaves the work notices open to abuse by employers through variance of notices, which in turn would cause confusion among workers who are intending to exercise their right to strike only to then be informed with what is essentially 3 days’ notice that their employer is now requiring them to come to work and if they try to exercise their right to take strike action, they face being dismissed. There is, what is in our view, a deliberate power imbalance between employers and workers and their unions. Employers will face no real punishment for what could either be their administrative incompetence or malicious intent to deliberately cause confusion. The code should state that variation from an employer should be reasonable and only take place when absolutely necessary to achieve a minimum service level and that it is the responsibility of the employer to ensure that the worker has received notification.
     
11. We expect work notices to be explicit in the type of work required, i.e. beyond stating simply ‘driving a train’ and to outline the routes, work cover and traction which the member will work on a strike day to avoid employers using work notices to pull in workers to carry out duties that are not essential to achieve a minimum service and to avoid workers being utilised in roles beyond their usual expected job role / contracted duties or being pressured to carry out duties in an unsafe manner. This will also ensure that an individual worker is aware of what they are expected to do to provide a minimum service and their right to refuse to carry out work beyond that which is listed on a work notice.       
     

Question 2

Paragraphs 21 to 28 of the Code set out the second proposed reasonable step, ‘encouraging individual members to comply with a work notice’. Does this step (and the draft template at Annex A of the consultation document) contain sufficient information to help workers identified in the work notice comply with the work notice and not to strike? Or are there alternatives to this step for unions to take to encourage individual members to comply with a work notice?

12. Employers have the freedom to vary work notices at short notice, this could create confusion with differing information from the union being sent to members, without the employer facing punishment for their unreasonable variation of notices. This leaves the use of short notice variations vulnerable to exploitation from employers.     
     
13. Section H of paragraph 25 of the draft guide also puts extra pressure on picket supervisors, who since the introduction of the Trade Union Act 2016 are expected to liaise with the police, be present and readily contactable and carry a letter stating that the picket is approved by the union. Now they will also be expected to encourage any worker who presents a work notice to them to comply with it and attend work. The Act itself did not intend for the creation of an extra burden on picketing supervisors or changes to how pickets operate and we are concerned that we are seeing attempts for the legislation to be stretched to impose more restrictions on trade unions and their members and essentially over police pickets.          
     

Question 3

Paragraphs 29 to 33 of the Code set out the third proposed reasonable step, ‘communications to the wider membership’. Do you agree or disagree that it is reasonable for unions to communicate with all members who are being encouraged by the union to strike, both to reinforce messages to members identified in a work notice and to explain, for the benefit of a broader group of members who may be involved in the strike, how the strike will be affected where a work notice is given by the employer?

14. Currently unions have statuary obligations around communications to members with regards to strike action and the sending of general communications or ‘informal notices’ should continue to be standard for unions. Along these obligations the code should be beefed up under paragraph 31 section D to read “that those members will receive from the employer…” instead of ‘should’ and a separate point should be part of the code to explain that if both the notice and statement are not received by the worker then that worker still keeps their protections from dismissal and their right to strike as their employer has failed to comply with their obligations.     
     
15. The code does seek to set a worrisome precedent where the state begins to dictate with who and what trade unions should or should not state in their internal communications. This causes us concerns of a further lurch to the right and attempted crack down on workers exercising their democratic rights.        
     

Question 4

Does step three, ‘communications to the wider membership’ (and the draft template at Annex B of the consultation document) contain sufficient information to inform the wider membership on the implications of a work notice for them?

16. To avoid confusion among members it is important that the emphasis is placed upon the employer’s obligation to provide both the work notice and a statement in their notice that the worker identified in relation to the strike under section 238A of the Act must comply with the work notice given to the union. This is not mentioned at all in annexe B and could lead to members being incorrectly listed on work notices and believing that their right to strike has been removed when in fact the employer has not met their full obligations by not including the appropriate wording in their notices.       
     

Question 5
Paragraphs 34 to 40 of the Code set out the fourth proposed reasonable step on ‘picketing’. Is there anything else that could be done on the picket line to ensure a minimum service level is met?

17. Picket supervisors are now being burdened with more responsibility to ensure that the union meets all of its legal obligations set in trade union legislation. Before the introduction of MSLs the picket supervisor must inform the police of their name, contact details and the location of the picketing, they must carry a letter to explain that the picketing is approved by the union, they must be identifiable and be readily contactable at short notice. Now they will also be expected to police the picket to ensure that anyone who has been identified on a work notice and presents a compliance/work notice to a picket is encouraged to go to work and the supervisor is expected to stop any of those on a picket from discouraging said workers from going to work. We believe this is wholly inappropriate and an overreach.    
     
18. Paragraph 37 of the draft code states that a member may wish to orally state that they are required to work by a work notice and not necessarily present a compliance notice or notification from their employer. It would be more appropriate for them to present a notice to ensure that the employer has actually met their obligations and that the member’s right to strike has in fact been removed, this will help to avoid any member believing that their right to strike has been removed when the employer has failed to meet their obligations when naming workers and as such the member is still able to exercise their right to strike without the threat of being dismissed.
     

Question 6

Is there anything else picketing supervisors can do as part of step four, ‘picketing’, to encourage members identified in a work notice to comply?
 

19. As we have outlined above, the picketing supervisor already has an overabundance of responsibility in the code of practice for picketing and the draft MSL code of practice on reasonable steps places even greater burden upon picketing supervisors and we do not believe that this section of the code is appropriate as it goes beyond the intended scope of the Act. We are ultimately concerned that, with this draft code, the picket and supervisor themselves are being overburdened with the threat of members losing their job or their union being fined hanging over their heads whilst the employers face little punishment for not meeting their obligations under MSLs.    
     

Question 7

Are there any other actions that the Code could list under step five, ‘assurance’, that unions should not take in order to not undermine the other reasonable steps?
 

20. Step five of the draft code seems to contradict itself on paragraph 41 and 43. Earlier in the draft code it seems that a union is covered if they note in general communications that if a member has been identified in a work notice that they must comply with it. Paragraph 41 states that communications should not be sent to members identified in a work notice. Paragraph 43 then goes on to state that general communications to members identified in work notices would not undermine the steps taken by the union, if they clearly state that those in receipt of work notices should comply with the notice and disregard inducement to strike. To remove this contradiction paragraph 41 should clearly state that general communications to members would not undermine the steps taken by the union.     
     
21. There is also the question as to what constitutes an inducement to strike when communicating with members who have voted to take strike action, the members themselves have chosen to strike so the communications are less of an inducement more of a confirmation of their democratic choice. Further to this, there is also the question as to how specific the wording of communications would need to be if there are multiple strike days. As the work notices could be administered for each separate work day, a member could receive a general or targeted communication ahead of multiple days of strike action and the union and the member themselves may not yet be in receipt of the work notice / employer’s notification for a later date which the general or targeted communication covers. There needs to be explicit clarity that in general and targeted communications, the inclusion of a statement that members identified in a work notice should comply with them for the date it covers and disregard inducement to strike for that listed date. This would ensure that the union is meeting the codes reasonable steps and not punish the union for information which was unavailable at the time of the communication being sent.           
     

Question 10

Does the Code strike an appropriate balance between the reasonable steps being proportionate in encouraging members to comply with a work notice, whilst balancing this with the ability to take strike action?
 

22. The whole act and code creates further administration for trade unions and imposes restrictions upon workers and their ability to take strike action, the Trade Union Act 2016 set higher ballot thresholds for transport workers as well as introducing notice periods for strike action and now the MSLs effectively ban workers from taking strike action on top of this.            
     
23. As mentioned under point 5 due to the nature of shift patterns for train drivers the Act could create a situation where it becomes almost impossible for certain workers to take strike action due to the working day being split across two or three workers and due to the failure of private operators to ensure that there are appropriate levels of staffing. It is hard to see how it could be reasonable or proportionate for a union to insist these workers comply with work notices and continually have their right to take strike action denied. Greater thought should have been given as to how to appropriately balance removing the ability to take strike action for workers in safety critical roles, particularly in grades that are understaffed.  
     
24. The act is heavily weighted towards employers imposing punishments upon workers and unions with no similar penalty for employers not meeting their obligations under the act. The draft code puts a lot of pressure on picket supervisors to ensure that members in receipt of compliance notices / notification from their employer comply with work notices, they are also at the frontline operating as a representative to ensure that the union is taking reasonable steps to comply with the Act and avoid being fined, this is an overreach. The draft code is also flirting with encouraging working practices where employers hold lists of union members in breach of UK GDPR and could potentially use these lists to disproportionately select union members for work notices.
     
25. Consideration must also be given to the mental toll the Act will have on workers, particularly those who work safety critical roles and who have close relationships with their colleagues who will be on picket lines which they are forced to cross. This could lead to unsafe working conditions through increased stress and the impact this will cause on a worker’s ability to concentrate fully.
     
26. The Transport Select Committee produced a report on September 22 which proposed that MSLs in rail should meet 9 criteria[3]. If an MSL in rail is to meet the listed 9 criteria we fail to see how it could be reasonable and we therefore fail to see how it would be possible for a union to take ‘reasonable’ steps to ensure that their members comply. The Transport Select Committee has essentially confirmed what workers have been saying, that in reality the Act is not workable.               
     
27. Whilst the Department for Business and Trade is assessing the balance between reasonable steps taken by a union and balancing the ability to take strike action, we believe that there has been an oversight with where the balance needs to be found with MSLs in ensuring that work is still safe. Safety is key to operations on the railway and we cannot see how the Act balances removing the ability to strike and the added pressures this will create for workers with safety at work, when safety is overlooked on the railways the ultimate price is the loss of life, this legislation risks endangering both the traveling public and staff on the railways and we fully expect employers and workers to utilise their work safe procedures and if necessary halt working if they are presented with a potential loss of risk control, to protect both themselves and the travelling public from danger, without the fear of being dismissed due to MSLs now hanging over the worker and employer’s head. 
    
     

Mick Whelan
ASLEF
General Secretary
77 St John Street
London
EC1M 4NN