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Important Public Services: the Regulations have arrived

Important Public Services: the Regulations have arrived

This week the Government published a series of draft Regulations defining what “important public services” (IPS) are for the purposes of the Trade Union Act 2016 (TUA 2016). The Act itself has been highly controversial and while it has Royal Assent, it has not yet come into force. When it does come into effect, there will be a requirement that 50% of those eligible to vote turn out for the vote (inserted as s226(2)(a)(iia) TULRCA 1992). In addition, for those working in “important public services”, then 40% of those entitled to vote, must have voted in support (inserted as s226(2A)-(2F) TULRCA 1992).

The TUA 2016 set out the six areas that fell within IPS: health, fire, border security, education, transport, and decommissioning nuclear installations and management of radioactive waste and spent fuel. This week’s draft Regulations give further detail on five of those areas: there are, as yet, no Regulations dealing with nuclear installations and waste.

The Regulations will come into force on 1 March 2017, or 21 days after they are made, whichever is the later. It is anticipated that this will tie in with whenever the TUA 2016 comes into effect. In the Government’s response to the consultation, we were also told that further guidance “to clarify which workers we expect to be captured by each of the important public services listed” will be issued at some point.

Each set of draft Regulations deals with a separate area. The Important Public Services (Health) Regulations 2017 provide that specific emergency health services are within the definition, including unsurprisingly ambulance, accident and emergency and intensive care services. Private healthcare is excluded. Interestingly the provision in the skeleton Regulations appended to the consultation document that “other care services (including diagnosis and treatment) provided by a hospital for illnesses, conditions or injuries which require immediate attention in order to prevent serious injury, serious illness or loss of life” would also be within IPS has been removed. This is a very positive step, as the clause was too vague and non-specific to be workable.

The Fire Regulations and Border Security Regulations are fairly uncontroversial with the Draft Regulations giving greater detail than the earlier Skeleton Regulations. They encompass work by firefighters to extinguish fires and for call handlers despatching firefighters. The Border Security Regulations encompass Border Force officers examining people and goods, and the patrol of the sea as well as the collection and dissemination of intelligence.

The far more challenging Regulations are the Transport and Education Regulations. They have become more specific compared to the Skeleton Regulations but the substance of them has not significantly changed. The Transport Regulations provide that IPS include any bus service which is a London local service and all passenger railway services. The definition of “railway” is that in s.67 Transport and Works Act 1992 and will therefore include the London Underground. The Education Regulations cover all schools other than fee-paying schools, 16-19 Academies and further education institutions providing education to persons of compulsory school age.

These final two sets of Regulations are contentious because they represent a very significant step away from the international consensus that industrial action can be restricted in relation to “essential services”. The International Labour Organisation defines “essential services” as services where “the interruption of which would endanger the life, personal safety or health of the whole or part of the population” (General Survey on Freedom of Association and Collective Bargaining, para. 159). It is difficult to see how the stoppage of the London Underground or the pausing of education of compulsory school aged children would “endanger life, personal safety or health of the whole or part of the population”. Moreover the ILO supervisory bodies’ view is that where the right to strike is subject to restrictions, there should be “compensatory guarantees” in place such as conciliation and mediation procedures and, where there is a deadlock then this should progress to arbitration. There are no such provisions within the TUA 2016. Of course, many would argue that the restrictions placed on workers undertaking IPS are relatively limited in that there is simply a higher threshold for the ballot rather than a complete, or partial ban.

What is fascinating is the Government’s rationale for the higher threshold, expressed in the Response to the Consultation document, particularly in relation to education and transport: the thresholds “restore a level of fairness to industrial action, and rebalance the interests of all working people … [regarding IPS, we] have focused the threshold on the services where strikes could have the most significant impact on the public”. Moreover, they referred to the NUT strike in 2012 where 22% of members had voted in favour of the strike and note that “A future strike of the same magnitude could impact 800,000 working households and could lose the economy 600,000 working days”. This focus on the economic effects of industrial action fundamentally misses the point: workers have a right to strike, and that right should be restricted in only limited circumstances. The ability to strike is an essential element in the power balance between workers and their employer. The step away from the ILO definition of “essential services” takes UK law yet further away from the international consensus on the scope of that right.

Sarah Fraser Butlin

December 2016

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