Transport Committee
Oral evidence: Minimum service levels for rail, HC 1153
Wednesday 26 April 2023
Ordered by the House of Commons to be published on 26 April 2023.
Members present: Iain Stewart (Chair); Mike Amesbury; Mr Ben Bradshaw; Jack Brereton; Ruth Cadbury; Paul Howell; Grahame Morris; Gavin Newlands; Greg Smith.
Questions 126–177
Witnesses
II: Mick Whelan, General Secretary, ASLEF; Mick Lynch, General Secretary, RMT; and Rob Jenks, Policy Officer, TSSA.
Written evidence from witnesses:
– RMT
– ASLEF
Witnesses: Mick Whelan, Mick Lynch and Rob Jenks.
Q126 Chair: I invite the second panel of witnesses to come forward. For the purposes of our records, could I ask you to give your name and organisation, please?
Mick Whelan: Mick Whelan, general secretary of the train drivers’ union, ASLEF.
Rob Jenks: Rob Jenks, policy adviser for the TSSA union.
Mick Lynch: Mick Lynch, general secretary of the RMT.
Q127 Chair: Thank you very much for giving us your time this morning. In your written evidence to us you very clearly set out why you oppose in principle the minimum service legislation. Is there a type of minimum service level arrangement that you could see yourself supporting?
Mick Whelan: I don’t think so. There have been a lot of questions this morning about how it operates in Europe and elsewhere. It does not operate; they do not utilise it. Where they have it, the right to strike still exists. We are introducing something fundamentally different that does not exist in other democracies. It is an industrial issue, but it is also a wider issue of human rights.
We work in a safety-critical industry. Every major tragedy that we have had, unfortunately, we have analysed, as we should do, appropriately and as this Committee has done in the past. Post Ladbroke Grove they said that with any safety-critical member of staff, if they had road rage on the way to work or a domestic spat, somebody should assess them to see if they were fit to carry out their role. Forcing people to go to work when their colleagues or their peers are not at work will bring pressure on them and make it inherently unsafe for themselves.
It will bring in further aspects. It is not just about how it has been identified—people might be naturally sick during this period of time—but under the various refusal-to-work procedures, people might say, “I do not feel safe in an industry that is not fully staffed, or where I am pressurised to do something that I don’t feel I should be doing.” We struggle with the concept.
Q128 Chair: Thank you. Mr Jenks?
Rob Jenks: I concur with everything that Mick has just put across to you. We don’t think that this legislation is needed at this time. We do not think it would work. You asked a lot of questions earlier about how it would work. We do not see that it would work in practice. We think it is undemocratic in many ways.
There are a number of points around that which can be made. We see it as a way to dumb down, if you like, the role of employees in democracy at work. One of the quotes I want to use today is from an academic from King’s College, London. He says, “The right to strike is a value of democracy.” We see it as an assault on that.
One of the main things we see from this legislation is that there will be some groups of staff who will never be able to strike. There are some groups of staff who are so key to the industry, with the way they work and the way strikes can take place, that they will have the right to strike withdrawn. It will not just be some of them. The chances are that, with the way they work, it will be all of them. On that basis, we see it as completely undemocratic and a breach of their civil liberties and human rights.
Q129 Chair: I understand your objection to the legislation that is currently proposed. Is there an alternative form of minimum service level that you think could work without raising the problems that you have just outlined?
Rob Jenks: No. The only way that we see it working is not to have it in the first place.
Q130 Chair: Mr Lynch, do you have any different points?
Mick Lynch: We will never support minimum service levels. It is undemocratic. It is un-Conservative, in my view. It goes straight to people’s right to combine, to be democratic and to have their freedoms expressed in a free democracy. The Conservative Government are oppressing that. This goes back to the foundations of our democracy with Tolpuddle, the Combination Acts and all the rest of it. This is your latest version of the suppression of the right to—
Q131 Chair: To be clear, this Committee is not introducing anything. We are scrutinising.
Mick Lynch: Well, you will get to vote on it. Maybe we will convince you to vote against it. That would be the ultimate outcome.
We will never support it. It won’t work. It is going to make things worse. Earlier, they were being very careful about what they do, but you have to remember that these people are under a direct instruction from the DFT, from the Transport Secretary. They have to comply with what he says. They have no right to diverge in any way from the thinking that is coming from the DFT and from BEIS at the minute. They are under state control, which is a strange irony. You are getting evidence from private sector companies who are under a direct state mandate. You are empowering the state to tell people, to conscript people, to go to work when they have voted not to go to work. That is under your legislation.
It will never work. It will create more problems. It will be unsafe. Conscripting people to go past their own union’s picket lines and operate complex signalling systems or drive trains is a recipe for disaster, in my opinion. I don’t know why you are doing it. Nobody else does it. There is all this stuff about France and Europe; if you have seen the industrial action in France in the last few months, under alleged minimum service levels, they have completely novel ways of taking industrial action, including occupations, blocking tracks and all the rest of it.
What you will do through this process is create novel industrial action, if we cannot use traditional industrial action as has been used in Britain for a long time. There will be novel forms of action, and there will be wildcat action, which is what happens in France, Italy, Spain and elsewhere. In Stockholm last week, there were walk-outs all over the Stockholm tube network outside the legislation.
It is going to come back on the Conservative party’s heads, I believe, but it will not work whichever way you go with it. Of course, we don’t have legislation. We have the slimmest piece of legislation that many people can remember. We are waiting for regulation to come out of the minds of somebody in the Department for Transport or the BEIS department. We don’t know what we are dealing with anyway.
Q132 Chair: That is the purpose of this inquiry. It is to explore what that regulation might look like. We are not debating the principles—
Mick Lynch: Shouldn’t they be telling us rather than us telling you?
Q133 Chair: We are questioning a wide range of witnesses and looking for their input. In terms of shaping what those regulations might look like, are you engaging with the consultation process? Do you have a role in that?
Mick Lynch: We have responded to the consultation, but we still do not know what is going to happen. You could have a completely novel situation where we give 14 days’ notice of strike action and then, as we understand it at this time, the Government or the companies give us four days’ notice inside that 14 days of who has to work. It is quite novel. Companies are always taking us for injunctions. We may have the opportunity to take them for injunctions if they have not served the notices properly.
I think it is going to be a complete pig’s ear, but we will respond. We believe it is unsafe. It is not going to work. I do not think it will serve passengers well. If it goes to a national reduced timetable, people like train drivers and signallers will be completely conscripted. You cannot run an 80% or 90%, or even a 50%, railway service without conscripting all of the signallers and all of the controllers to operate that network. If you want to run a train down to Cornwall, to the north of Scotland, to rural Wales and all of the towns that were mentioned earlier like Stoke, Middlesbrough and Portsmouth. They are all poor towns by the way, I noticed, and maybe that is why they are not getting a service. I am sure Guildford and Maidenhead always get a service during strike days.
It will be a disaster. We will all end up in court, and they will spend even more money on fighting cases than they have on trying to break the strikes. If they had used a fraction of the money for breaking the strikes on settling them, we could all be back at work now.
Q134 Chair: Mr Whelan, is ASLEF engaging in the consultation?
Mick Whelan: We responded to the two current consultations, the only ones that are out there. You won’t be surprised that most of our answers were in the negative. We have tried as trade unions to talk to the regulator about the impact of this, and about how the companies’ safety certificates could operate safely. Unfortunately, at that point in time the regulator was unable to give us any answers. The person who has to authorise a licence for people to operate the trains cannot tell us how they think this would operate in a safety-critical manner either for people who travel or who work in the industry.
Q135 Chair: Mr Jenks?
Rob Jenks: We have put a consultation response together. We have taken the point of view that we do not agree with it, so we are not responding to all of the questions in the passenger service consultation. One of the points we have certainly made in our consultation is that the extent of industrial action since July last year has, in large part, been down to the Secretary of State himself because of the application of national rail contracts, which Mick just alluded to, and the requirement that the Secretary of State essentially directs what they can do in anything to do with employment relations.
The national rail contracts are all the same, even to the extent that the same clauses are numbered in the same way. You will see there that everything is under the direction of the Secretary of State. Our negotiators went to meet the employers frequently during the recent round of industrial action. While they were cosy chats in one sense, when it came down to doing the business and getting a deal, it was, “Sorry, we can’t make an offer. We can’t move this forward.” That sense of frustration boils over.
One of the things I want to add, Chair, is that it is very easy for people looking into the industry to say that railway workers are not perhaps quite as dedicated as they should be. I can tell you, as an ex-railway worker—as all of us are—and knowing thousands of railway workers, that they are extremely dedicated and extremely professional. They do not take industrial action at all lightly.
I want to paint that different picture. Industrial action is after a long process of negotiation and frustration in terms of that negotiation. It is only taken as a last resort, on the basis that nobody wants to lose money or take industrial action. Bear in mind that workers do not get paid when they take industrial action, unlike the train companies who still get paid their money from Government.
Q136 Gavin Newlands: You may have heard my questions to the previous panel with regard to services during industrial action provided to certain parts. Obviously, Mr Lynch, you have just addressed some of that in your answer.
Before I turn to that, I very much take your first responses, but the Government have proposed two options for setting the level: a proportion of the normal timetable or establishing a priority route map, which is similar to how industrial action days are operated at the moment. I think you have all said that this legislation will not work. Of those two approaches, does either potentially stand any better chance than the other?
Mick Whelan: No. As you highlighted in your question, we are in a fractionalised industry where the domino effect of one part not running impacts the other. When you introduce legislation like this, the expectation of the travelling public dramatically increases. You have the same amount of capacity trying to use fewer services, which brings the inherent risks associated with that problem. When people get to a certain point, if certain trains are running they will expect the associated train connections to take place. Not everybody plans their journeys in the way we would like. As you highlighted with the disabled issue, disabled people will have their journeys truncated or be unable to travel at all.
There is no way as we currently have the railway structured, whereby it is left to individual operators. Part of the legislation fundamentally concerns the Henry VIII clauses, which allow the Minister of State for any relative area or for rail to turn it up or down as they want. We do not know how that is going to be done safely, accurately and in a manner which we all understand. We do not see, practically and objectively, how it can operate that way, in either scenario.
Q137 Gavin Newlands: You made the point that all controllers and signallers would be conscripted to deliver minimum service levels. If they were to design it similarly to industrial action at the moment, would that change? Would only a proportion of controllers and signallers have to work on those days?
Mick Whelan: I don’t believe so. The railways are a seven-day-a-week, 24-hour industry. If you are going to run trains throughout the day, the station has to be open throughout the day. The signal boxes have to be open throughout the day. The ROCs have to be open throughout the day. We do not see how it will not adversely impact certain roles in the industry more than others. Is the intention then to indenture some people more than others?
Q138 Gavin Newlands: Mr Jenks?
Rob Jenks: I agree with a lot of that. We organise a lot of controllers in Network Rail and the train operating companies. Those people have highly specialist knowledge. All you have to do is spend time with a controller and you will discover just how specialist their knowledge is, in the way they work and the fact that they have 24/7 shift patterns. All of those things coming together mean that, if there was any sort of minimum service level and if they were in dispute, they would be required to work because of their degree of knowledge and the way they work.
There are other groups. We have mentioned signallers, and I am sure there are others; faulting teams, for instance, for signal issues—teams of people who go out and fix signals when they go down. Those people would have to be kept, otherwise you might have a signal issue somewhere and you would not have the team. Minimum service levels would require those teams to be on duty as well. The railways are mostly a 24/7 operation.
Q139 Gavin Newlands: Mr Lynch, further to what you have said already, do you have anything to add? You have touched on the lack of information about the regulation in this fairly small Bill as it stands. What is your level of expectation on the level of detail that you are going to be privy to from the Secretary of State?
Mick Lynch: I think they are going to make it up as they go along. This is a suck-it-and-see piece of legislation. I don’t think they understand the railway. I do not think the people in the Department for Transport understand the railway. They have 60 people working on the current dispute, which has obviously been a failure. If they want to go into the actual operation and the nuts and bolts of how you operate a railway on a strike day, or during any other industrial action, I think they will be completely lost. There will be a lot of backtracking and reversing. There will be a lot of pressure on them from passenger groups, devolved authorities and national Governments, as you have mentioned.
It is just going to be a mess. I do not think anyone actually knows how this legislation is going to be formatted. The worst part of it is that the people in charge seem to have the least idea. That is why they are floundering around asking everybody else how they should conceive their idea. I am as wise as anyone else. I do not know what is going to happen. I know that some of our members are going to be served with notices to go to work, and if they do not want to go and refuse to go, they will probably be sacked. That will poison industrial relations every day of the year with the people you have just had sitting here.
If they sack 500 of my signalling members, we are going to be in absolute crisis. If they sack 30% of all the drivers in the country, because they will not go to work across their own picket line, where are we going to be on the railway? It will be permanent disruption of our railway. Then we will have to have disputes about getting those people re-employed. We will have a P&O situation, where everybody gets sacked because they will not break their own strikes. I don’t know if that is what the Government want, but that is very likely to be where we go. We will have a strategy of non-compliance because it is an unjust law.
Q140 Gavin Newlands: I made the point that the First Minister said to the STUC that it would not be implemented and not a single work notice would be issued in Scotland. If Wales were to take the same approach, and potentially any devolved authorities such as London, where there is a semblance of local control, how will that in any way work for any kind of national service or services that cross borders, be they metropolitan or national? How is that going to work? I think I might know your answer.
Mick Lynch: It will be chaos, but I think the Government are only concentrating on what they perceive to be England. They have this idea that as long as you keep certain routes happy, the hinterland will be okay. I don’t think they care what will happen in Wales or Scotland. That is my perception.
The railway has taken the decision that they do not particularly care about it during the disputes. The current dispute, which is sponsored by the Government and paid for by the taxpayer, is a DFT/Westminster dispute that affects communities outside that prerogative. This is largely concentrated on that and I think it will start another constitutional issue. If the Scottish Government say, “We don’t want that,” they will soon be pressing further for the devolution of employment law. Then we will have further conflicts, where people involved in a strike in Scotland can be treated differently from people on strike in Newcastle or Carlisle. It will create more of a mess than we already have.
Q141 Gavin Newlands: I have been pushing for devolution of employment law for some time. Mr Jenks, do you have anything to add?
Rob Jenks: I don’t think I have. Mick has covered it perfectly well.
Mick Whelan: There is a logistical aspect to it as well. At this moment, it is assumed that people go out and back. That does not happen. Journeys are fractured. People have different patterns. There are different timetables and different locations. Some people have four-and-a-half hours, some people have five and some have different agreements.
It occurs to me that, when you try to operate a piecemeal service, the day after and the day after that will be impacted because recovery to get back to a standard pattern or timetable of any sort will go out of the window. When there is very little running, or nothing running, you can just move off again with greater capacity and greater ownership of what you are doing post the action. All of these things, as was highlighted earlier, will lead to more strife, not less. The only bit of information we had was the impact assessment that said the Bill itself, if there was one day’s action now, was quite likely to lead to six or 12 days’ action to possibly have the same effect. That is detrimental to the industry and industrial relations, and of course detrimental to the travelling public.
Q142 Gavin Newlands: It is apt that you brought up logistics. My last question is about freight. You said in your written evidence that you assumed a minimum service level would need to be agreed for freight operators as well, which is not in the consultation. Why do you say that?
Mick Whelan: The way we squeeze freight in at the moment is between existing passenger trains. Freight grew and operated better during the pandemic than at any other time, which shows the need for further investment, but that is a debate for another day. The real issue here is that freight will still traditionally run in the antisocial bands. It will run in the period of time between late at night and early in the morning, when many passenger trains do not run. I do not think there is the same impact on freight.
This is directed at public operators in Government contracts. Freight is privatised red in tooth and claw. They are not bothered if Freightliner does not run. They are not bothered if DRS does not run; maybe DRS is not the right example, because it is publicly owned and has the nuclear commissioning stuff. Most of the freight operators do not come under the piecemeal Government contracts and are not part of the Government dispute we have at the moment, where people are now using this hammer to crack a nut.
Q143 Gavin Newlands: Are there specific effects of freight operators being left out that you can think of?
Mick Whelan: Not at this moment in time. Where it impacts—this might be directed more at my colleague—is the infrastructure work and the maintenance work at weekends.
Q144 Gavin Newlands: Do you have anything to add on that, Mr Jenks?
Rob Jenks: Mick has picked up weekend working and the issue there. The fear we have, of course, is that the Secretary of State is reserving to himself consequential amendment powers. This is what it might look like now, but what is it going to look like in six months’ time?
Gavin Newlands: We could say that about a lot that comes forward these days.
Q145 Mike Amesbury: Good morning, gentlemen. I will start with each one in turn, Mick, Rob and Mick. How do the minimum service levels as proposed at the moment apply to members? Think about job roles. It could be routes, for example. What are the obligations going to be? What is your understanding at the moment?
Mick Whelan: We have not had the benefit of the DFT and management workshops. All we get is the opportunity to respond to your consultations, to ask the regulator the question he could not answer, and then put our own opinions in place. Quite simply, on the basis of my 38 years’ experience in this industry, operating at all levels of it, I cannot see how this can be done safely on a regular basis.
If one of the consequences is that, rather than people taking one day’s action, they take five days’ action, you have five days of minimum service levels, with a compound effect in the impact on safety and the other associated issues we have been highlighting. I remember when there was a national fire brigade strike some years ago. We were in a safety consultation and were told that unless we ran all trains during the fire brigade strike the knock-on effect, or the domino effect, to public safety would be that more people would be driven into their cars and whatever else. I do not see how minimum service levels do not have the same sort of impact on associated health and safety, or emergency services in the future. It is not just about the railways. It is also about the ability of other areas, if they are out on strike at the same time, to function in a way that allows people who work in the industry to operate safely.
Rob Jenks: Could you repeat the question, please, Mike?
Q146 Mike Amesbury: It is about your understanding at the moment of the legislation and how it is going to affect your members. People have referred to signallers. Is it going to compel signallers to work? Are they going to lose their right to strike, for example? How will it affect the routes and different employers?
Rob Jenks: The first thing to say is that the railway is integrated. Obviously, industrial action can take place in one particular firm, or it can take place across the industry or across several firms. The effect can be different in terms of who is on strike, in that sense.
One of the key points is the thing about prolonging the situation. The union carries out its strike ballot. It comes up with the result and notifies the employer, and on that basis the employer then says, “We want you three there or you 10, 20 or 100—whatever it is—to come into work.” You then have the issue about how you deal with all the people who are not going into work, and people who perhaps go sick rather than being part of the minimum service level. Then the strike becomes longer, longer and longer.
The impact is going to be that, whatever the length of the industrial action, the effectiveness of that strike is going to be weighed by the employer or the Government. You can have everybody out, or not, as the case may be, but the employer will look at the dynamic of that. “Do I have to listen to what the trade unions are saying?” Half of their staff, or whatever the figure is going to be, will still have to work. They have lost their power, in that sense. Strikes, in that sense, become longer. They have to become longer to be more of a nuisance factor, a disruption factor. That is one of the failings of this legislation, to my mind, and about how it works.
Mick Lynch: If we move to the example of London transport—because we have spoken a lot about the main line railways—and they command the London Mayor or TfL to run a service at 50%, and they have to open all the sub-surface stations, every single grade on London Underground will be affected. All the drivers would have to go to work, I imagine, to run that service. All of the customer service people would have to go because they are safety-critical, in the sense of running the sub-surface stations, the escalators, fire drills and some dispatch roles. All of the signalling staff and control room staff would have to go to work. That would be complete conscription of labour and it would nullify the strike, so you would not have the right to strike. It is a network. It is not called a network for no purpose. You cannot simply say, “I have a load of drivers that I have commanded to go to work. The railway will just run.” You have even heard that from the employer.
Everywhere you look, it will end up with multiple grades. Perhaps the only grades that will not be conscripted will be the management grades that are currently operating the railway when we are on strike. It is quite a strange situation. The ironic outcome is that the people currently breaking strikes will not have to break strikes because they will compel the people who are on strike to break the strike. That is a bit of a strange situation. I think all grades will be affected in all the companies, but I don’t really think anybody knows at the moment how it will work.
Rob Jenks: That is an interesting point. Our union represents managers in the industry, and sometimes managers are involved in these sorts of disputes and take industrial action; at other times they do not. In the circumstances that Mick has described, even they will not be able to take industrial action because this legislation will make the situation worse.
Q147 Mike Amesbury: On that point, is this piece of legislation going to make industrial relations better or worse? It is not even legislation at the moment, but as it is drafted.
Mick Whelan: Naturally, it will make it worse because there will be a value judgment made on impacts. If it takes more time to have the same impact, or to allow people to exercise their right to strike, depending on what the proportion or percentile is, there is going to be more action, and more action short of a strike. It is a natural by-product of what has been proposed, unfortunately. Our experience is that the more action, the worse the industrial relations and the longer it takes to resolve. If it takes longer to resolve, it becomes a self-fulfilling prophecy.
Rob Jenks: I agree entirely with that. The whole point of this legislation appears to us to be deliberately detrimental. I use that phrase quite deliberately because the way the whole process is worked is that it is not just about the minimum service level. It is about the whole process that goes into getting to the stage of calling industrial action. Inevitably, that is going to cause bitterness and a breakdown in relationships.
Most of the time relationships with railway employers work. There are times when they do not, but generally we get along. Most things are resolved without the need for recourse to industrial action. When things go wrong like this, and minimum service levels are imposed, those relationships will inevitably become broken. Some employers are very litigious. Anything they can use to stop a strike, they will use. That only causes bitterness.
Bear in mind that we are membership-led organisations. Your members see this proposal and feel frustration. The industrial action that has taken place in the last six months or so has been led by members feeling aggrieved that after three years they have still had no pay increase, despite all the work they did during covid. A number of members lost their lives; others had long covid. All through that process, you can imagine what it would be like if a minimum service level was then instigated to prevent them from striking.
Mick Lynch: I think it will be seriously detrimental. We speak to Tom, Jamie and all the others all the time, fairly cordially. During the current disputes it is to the credit of everyone, to be honest, that there has not been a breakdown of relationships at any level. If Tom, Jamie and others start sacking our people as a result of their taking lawful industrial action, that will lead to complete deterioration. We will not be able to sit with them when they are either being forced by the Minister or by their own volition to sack our people for taking what, a month before, would have been lawful industrial action. It will lead to a complete breakdown. I do not see how we will resolve any disputes if hundreds or potentially maybe thousands of our people are being booted out. It is not going to help anyone.
I do not think they want to be in this position, if I am honest with you. I have sat with all of these people for many hours over the years. Not one of them has said to me that they want this power and this legislation. They have no idea how it is going to work, as you have heard. They are being press-ganged into it as much as anyone else. I do not think anyone wants to be in this position.
If they don’t sack people, what are they going to do? You are putting yourselves in a position where you are given an instruction by the Secretary of State to carry out a minimum service level, and if it does not work what is the Minister of State going to say to you next? He or she is going to say, “I want those people sacked the next time they come to work.”
I don’t know if you politicians want to put yourselves in that position, where they are commanding chief executives to dismiss people for taking strike action, but that is the road you are headed down. You are directly interfering with private businesses and how they deal with their staff, collectively and individually.
Q148 Mike Amesbury: Let me give you a scenario. A signaller has been served a work notice. There is a picket line and they refuse to cross the picket line in this democratic state that we call Britain. What are the legal consequences for that signaller? What are the consequences for the travelling public?
Mick Lynch: They lose their indemnity. We do not have a right to strike in this country. There is no right to strike whatsoever. You breach your contract of employment every time you go on strike. You are indemnified from legal or disciplinary action by the public, by businesses and by your employer. They will lose that indemnity. They can be subject to the costs of the disruption, and they can lose their job. They could potentially end up in court because of the costs. This goes back to the Taff Vale judgment in 1913. My union was subject to that by a coal company taking our union to court. It nearly broke the union, which was the object. That is where we are going back to, but you will also be picking on the individual. They will be sacked.
How will we get ourselves out of that position? It will put the company under pressure. “What are you going to do about it? These people defied the work notice, having voted to go on strike.” Some of you lot will have to work that out for us. You are the people making this decision. You are the ones who are going to put ordinary women and men in this position with their employer. The employers will be in a similar, invidious position where they have to make these choices, under pressure from the Government and the Secretary of State. He goes on the television and says, “I’m just a good broker. I put these people together in a room, and I hope they can find a way.”
That is completely untrue. It is in the passenger service contract. They are going to go further than just being involved in the negotiations. They are going to be in the disciplinary procedures as well, pressing for them to be dismissed. It is the inevitable outcome.
The effect on the public will be that it is likely to come to their town, if they work in another industry and there is more industrial action. The Government will extend these powers, but it will not resolve the current dispute we are still in, and it will not resolve future disputes. It will make them intractable. The first thing the unions will say is, “We will not leave victimised members behind.” That is where we will be.
Q149 Mike Amesbury: Are you going to challenge this legally?
Mick Whelan: Yes.
Q150 Mike Amesbury: What routes are you looking at? What are your options?
Mick Lynch: Well, when somebody writes the regulations we might know. We are all in this position, aren’t we? We will do whatever we can. We will urge the TUC to have a non-compliance strategy. We will, hopefully, do that collectively, so that we can do it at the European Court. We can do it in our own courts, depending on how the work notices work.
If you look at the history of the legislation since the Tebbit laws—I am not going to go back over all that—all the iterations of the laws have ended up in court. They have all ended up with challenges from employers and various parties. Then you end up with a bit of equilibrium and you find out how it is all going to work, with the ballot thresholds and all the rest of it. It settles down, and then the Government come back, or a Government come back, and they make a new set of legislation because they were not content that the unions had defeated or got round the previous legislation.
I imagine we will be involved in that for the next five to 10 years. Until somebody serves a work notice on a group of workers, we will not know what the challenge will be. There are people in certain Inns of Court around here who will be rubbing their hands thinking, “This is great. This is a new area of law.” I am sure the Tories were elected on the basis that they were going to get rid of red tape, but you are bringing in a new set of laws that all these leftie lawyers, as you call them, can challenge. That will be an interesting development.
Mick Whelan: It will also be intriguing to see where the legislation goes and then where the employers go, as they are currently fully indemnified for any strike action, or have force majeure clauses in the previous contracts post covid. I am not sure inherently that that can still exist if you bring in legislation that forces people to come to work and operate services. How can you be indemnified for any action and contractually protected from any penalties, and also have the right to do that? I do not think that is correct.
Q151 Mike Amesbury: Thank you. Finally, Rob?
Rob Jenks: I concur with what my colleagues have said. At this stage we do not know what the regulations will look like. We should get some flesh on the bone, possibly, as to what the Act is all about. The Act is so loose. How can you possibly at this stage identify anything other than a worst-case scenario about the way it is going to work, because it is so loose. Apart from the fact that we object to the minimum service levels, a major consideration in our legal approach to it will be what the detail looks like.
As Mick was saying, the train operating companies are indemnified, but the train operating companies are also controlled by the Secretary of State. It is an opportunity for him to be able to crack down on the workers that he wants to. Bear in mind that the minimum service levels are not just applicable to rail. I know that we are talking about passenger rail today, but there are six categories of workers, including in the health service and others. It is going to be a shared burden that trade unions and employees will have to carry.
I am concerned about the litigious nature of what has been proposed. That is why I used the words “deliberately detrimental” earlier. It is not just the minimum service levels; it is all the legal conflict that will go on to understand what it actually means in practice. The way the process will work—from what we know of it—will only make that worse. It will confuse and frustrate industrial action all the way, and that is what it is designed to do.
Q152 Jack Brereton: We have seen in some cases that certain unions are on strike and others are not. How would you expect minimum service levels to work if we have one union on strike but another that is not on strike?
Mick Whelan: Well, we don’t and that is our problem. At this moment in time, picket lines are not there to deter the people who have balloted from coming in. They are to explain your case and articulate your voice to other workers. Picket lines are there to encourage other people not to go to work.
If we have minimum service levels and people on strike are forced to go in, but the people who are not on strike might be convinced by a picket line of the righteousness of a cause not to go in, how will that work in the future? Under the same legislation, if they do not go in, can they automatically be sacked? We do not know. This is a really horribly badly written bit of legislation that truly will make things a thousand times worse and confuse all industrial relations. At this moment in time, the bulk of workers not involved in a strike will tend to go in. When this legislation comes in, I wonder if that will change.
Q153 Jack Brereton: Does anyone else have any views on that question?
Mick Lynch: I don’t know if it will provoke people. At the minute, people who are not in unions have the right to go on strike, by the way. I do not know who they are going to pick for a work notice. If the RMT was on strike and other unions were not, are they going to put work notices on everybody in case they do not cross the picket line? You have the right, as a non-trade unionist or a worker in another union, to not cross a picket line and to be protected and indemnified. I do not know if anyone has thought about that. Maybe everybody will not come to work. Maybe all the people that are not in the union will not come to work because they will not get a work notice. Who knows?
Will the employers demand to know who is in a union and who is not in a union? They do not have the right to know that at the moment. I do not know how it is going to work. I do not think anyone else knows how it is going to work, which is what is wrong with the legislation.
Q154 Jack Brereton: Do you think it would differ if it were different types of workers on strike? Obviously, we have train drivers. As you say, we have signal operators and things like that. Do you think this legislation would work differently for different types of workers?
Mick Lynch: I imagine the employers will prioritise who they want to work. I don’t suppose they are bothered about whether somebody in accounts comes to work or not on a strike day. I am sure they would like them to, but they will certainly want signallers, train drivers and conductors to come in. There are lots of other people out there. It depends on what the strike is, how many people are involved and which grades are involved.
If you take a London Underground strike, they tend to be a coherent group. If you get train operators, it could be one train operator on strike and another train operator not on strike. They are often co-located, and it has knock-on effects. I have no idea what the effects will be or how they will deploy their powers. I am not sure the people who are writing it know how they will deploy their powers either, because we have not seen any of the powers, as far as I know.
Q155 Jack Brereton: Do you have any views on the different impacts that it might have on different types of workers in different unions?
Rob Jenks: Impacts in the sense of being required to work?
Q156 Jack Brereton: In terms of how it would work if there was a requirement on certain types of workers and not others.
Rob Jenks: As Mick was explaining, we do not know the details. We do not know what the intention would be. No doubt, there would have to be some sort of assessment of who would be required. There are certain groups of workers who, if they were on strike or there was a dispute going on, are key to running the railways. As I said before, particularly with the control staff—the group that we organise in a lot of companies—if there is any sort of dispute, they are required to be in work. They are not in dispute, so they can come to work, but if they were in dispute and others were in dispute and on strike, would they be required to come in as well?
I am not sure that I made that very clear. The point I am trying to make is that some groups would be required to be in work in industrial action, even if another group could take time off. Like the controllers—
Q157 Jack Brereton: Would it put extra pressure on staff who are not on strike?
Rob Jenks: I don’t know about that. We do not know the detail of what that would look like.
Q158 Jack Brereton: It is quite possible, isn’t it, that staff who are not striking would have to take on a lot more of the shifts?
Rob Jenks: It depends on the role a person is doing. I am thinking about control staff, and if they were in dispute and were all out. On the other hand, once they are out, a work notice would suddenly appear and they would probably all be required to work each time they would have taken industrial action.
Mick Whelan: It is intriguing. There is no assumption that you can make people work longer or do anything different. They will still have their terms and conditions. They will still have their normal roles and responsibilities. In a complex industry such as the railway industry, where you have three different drivers or signal people relieving each other at different times at different points of the day and undertaking different activities, the idea that you can put a proportion of people into work and, all of a sudden, they can cover X amount does not quite work that way.
Trains have to be prepared; they have to be put away; they have to be mobilised and immobilised; they have to be put together and broken apart to go in different directions and on different routes. It is not as simple as saying that the people who come in may have to work harder. That cannot be done. You have already indentured them and made them slaves. I suppose you could force them to work every hour that God gives on top of that, but I don’t think that is the intention.
Where I find it intriguing is that we have already seen this legislation in what were traditionally considered essential services—the police and elsewhere—and now they want the right to strike because of the legislation being forced on others over minimum strike levels. If every worker is now deemed as essential, at what point does it stop?
Q159 Jack Brereton: There are obviously emergency service workers who rely on these services to get to work. In that sense, in many cases, these services would be essential as well, I would suggest.
Mick Whelan: Well, we could go into a different debate about truncating timetables and not caring about people in certain areas of the country getting to and from work, and having services for key workers or emergency workers to get to work. That might be a debate for another day. At this moment in time, why would you want to exacerbate a situation to make it more difficult for people to get to work if a strike is going to be longer and harder as a consequence and by-product of this legislation?
Q160 Jack Brereton: Mr Whelan, in terms of what you said to us at the last Committee meeting we had where you gave evidence, you particularly referred to the fact that you do not recognise the RDG and potentially you would go on for two or three years with these strikes. That has been reported in the media as well. As you have said, you are against these proposals in principle. Don’t you think that the reason why the Government have decided this is necessary is the hard-line approach that you have taken?
Mick Whelan: I do not think the hard-line approach has come from the trade unions. The RDG was created many years ago as—
Q161 Jack Brereton: I am not saying all trade unions—
Mick Whelan: I will just speak on behalf of my trade union then. The RDG was created several years ago for the cartel that was given the opportunity to run the railways in the UK by the UK Government. They have broken up many times. The DFT has carved up the map many times. Many bad operators have handed the keys back and been given future opportunities to hurt and pillage our industry.
When they created the RDG, they were very kindly going to let the RMT and ASLEF be associate members of a group that we were not advised about. We did not take up that opportunity. What we did, post covid when we had the Government-led strikes we have now, was to find a vehicle to talk. We have done that. We have tried to find a solution. We are trying to find the way out of the strikes. Other than the vehicle that we jointly created, there is no vehicle and—
Jack Brereton: You were not—
Mick Whelan: If you will allow me to answer your question, when this is over we will go back to never talking to the RDG again because there is no reason for us to do so. It does not exist for any purpose in our industry, for consultation or negotiation. It is not a body that operates in the bargaining machineries of the railway companies or the trade unions in the United Kingdom. We are using that vehicle at this moment in time to try to get us out of a dispute. If you would rather we didn’t, that is fine.
Q162 Paul Howell: I want to touch on two different subjects. First, safety and access for vulnerable people, which you heard about in the earlier discussion. I know that concerns have been raised, particularly by the RMT, about where safety would be in this situation. In the previous discussion they gave us reassurances that they did not think that would be the case. Do you agree with that situation?
Mick Lynch: No. I think they gave you a reassurance that they would do a risk assessment. What they do at the moment, when they are getting managers to break strikes, is that they put them on a training course for four hours, which for a safety-critical member of staff would be at least six months or maybe a year. Then they put them out. What they will do is risk assess it, and they will come up with a risk assessment that says, “We don’t think there is a greater risk,” or, “The risk can be managed.” That is just health and safety speak for saying, “We’ll just take the risk.” If we stress safety-critical staff by making them come to work on pain of being dismissed, they would just say that is no greater danger. We think they will continue to take that risk.
They will probably continue to use managers fairly extensively where they can. They are reasonably comfortable with the situation at the moment. During this dispute, Network Rail set down the minimum standard that they were going to run. It could be 20% or 30%, as you have heard. They try to operate a system within that. It has a defined time period.
They seem fairly comfortable with what they are doing—I don’t know what your impression was. I do not think this adds any value for them, but it certainly will put people who do not want to do the work into a stressful situation, where you are putting pressed people into safety-critical roles. That should not happen. That is an enhanced safety risk. They will cover themselves with paperwork and say, “We did a risk assessment.”
Q163 Paul Howell: I just want to paraphrase what you are saying. They will be saying that they are operating at appropriate safety levels, but your interpretation is that, at the very least, it is a poorer safety level than you would normally be operating at.
Mick Lynch: Yes. It imports risk by having people who are pressed to work.
Q164 Paul Howell: Before I go to your colleagues, in terms of the access for vulnerable and disabled passengers, do you think they would be able to manage that in the situation where you were in a minimum service level? Would there be any impact from that?
Mick Lynch: The only way you could manage it adequately is by compelling more people to come to work. Much of the infrastructure is Victorian or of that era, with lots of steps, footbridges and all the rest of it. That needs passenger assistance because the lifts are not there. You will have to get people who may not think like customer service staff, and who are not safety-critical. If you want to keep that service going, you will have to bring them in. If the Government dictate that more stations should open on the timetable method rather than the priority route, it will mean more people being compelled to come in.
Q165 Paul Howell: Is there anything you would like to add, gentlemen?
Rob Jenks: The only thing I would like to add is that, when it comes to employers wanting to close down ticket offices, the issue around disabled access is one that we have banged on about a number of times in our responses and in our campaigns to try to stop that. It is never an issue that they listen to. They still usually go ahead with those closures. To say that they are worried about disabled access and those sorts of things is always tempered, at the very least, and sometimes just completely disregarded. I think they look in two different directions at the same time.
Mick Whelan: From the number of passenger groups that we deal with, the evidence is that they cannot do it now. We do not serve disabled people and poorly sighted people very well at this moment in time, and we are not fulfilling our existing legal requirements in many of the companies. If they propose—
Q166 Paul Howell: Apologies for interrupting, but do you think that would degenerate in this situation even further?
Mick Whelan: Even further. There will be fewer people to do it and things will be more stretched. Quite obviously, if we cannot fulfil our requirements now, going forward it will be far more difficult. What was the second part of your question?
Q167 Paul Howell: I think you have covered it.
Mick Whelan: There was one further point; it has come back to me. Part of our industrial health and safety is the scrutiny. As part of the current dispute, many of our health and safety representatives, and otherwise, are not being released to do their duties to scrutinise the safe operation of the companies in the current climate. I am not quite sure, even in the industry at the moment, without the future changes, that we are totally operating safely.
Q168 Paul Howell: Mr Jenks, you look like you want to come in again.
Rob Jenks: There is just one point I want to raise. We do a fair bit of work with disabled people. We have a disabled working group in TSSA which is very active in a lot of areas. One of the things they have drawn attention to is the number of derogations that are allowed by the Government around various aspects of disabled access to the railway, buses and things like that. Requirements to make change are continually knocked back. If we do not put the pressure on the company this month, it is, “Do it next month,” or next year or something, and then it is pushed back again. In certain circumstances it has been pushed back five or six times over a number of years. I will leave it at that.
Q169 Paul Howell: I take on board what you are saying. On a completely different subject, obviously members of the public may have sympathy with your strike action. We all get into our own place, and our ability to get to our jobs and things like that. The Government are putting messages out about putting minimum service levels in so that they can help essential workers get to work, or whatever.
What do you think that the public would expect should these minimum service levels be delivered? Notwithstanding the complexities of delivery and all that sort of thing, what do you think the public expectations are, based on the Government communications that have gone out? What do you think the public are expecting?
Mick Lynch: There is a danger that you are going to raise expectations through this to a level that will not be fulfilled. It is ironic of course—
Q170 Paul Howell: The second part of my question is whether the expectations were realistic.
Mick Lynch: When it started, we were told that essential workers were being held to ransom by the RMT and others. Of course, all those essential workers have now been on strike themselves in the course of this action.
In my view, what the public really dislike is when they are told that a level of service is going to run and it is not fulfilled. I think there will be even more anger when the chaos that is inevitable comes around, and there is not a fulfilled minimum service level, for whatever reason. It is not just us, but simply because nobody understands what they are doing. I think there will be more anger. That is what we will see.
Mick Whelan: I think the employers part-answered that question earlier, when a question was asked about prioritisation and what services and routes they were going to run on what days. If the expectation for most people travelling is that there is going to be some level of service, that may not be the truth based on the key stations and the prioritisation that they were talking about earlier. Quite simply, I think we are not going to have enough capacity for what does run. There will be some areas where it will not run at all for obvious reasons, depending on demand. There will be a very frustrated travelling public.
Q171 Paul Howell: Do you have anything to add, Mr Jenks?
Rob Jenks: I would add the issue of information. A lot of people see the trains running with a minimum service level. If they think that far—that the trains are running—they will turn up to the station and have long waits between services because the information they have is inadequate. Is it realistic to create that expectation in people?
As a friend of mine said to me at the weekend—she is a very average Conservative supporter—“Don’t people understand that’s why there are two weeks’ notice? You can then make alternative arrangements.” I know that it does not apply to everybody, but nevertheless the fact is that there is already a two-week notice period when industrial action is declared from the date it is declared and the action taking place.
Paul Howell: We touched earlier on the clarity between what is happening and when it is happening, which would help people to make their own decisions. Thank you for your responses.
Q172 Grahame Morris: For the record, I would like to make my declaration. I am a member of several trade union groups, including Unite the union, RMT and ASLEF. If TSSA had a parliamentary group, I would probably be a member of that as well.
Rob Jenks: We’ll give you a call.
Q173 Grahame Morris: Forty years ago I was a member of TSSA and of RMT, although at the time it was the NUR prior to privatisation of the industry.
Thank you very much for the written evidence that has been submitted. In the evidence you point out that this proposed legislation is unfair, undemocratic, unworkable and unsafe. In response to questions from my colleagues earlier—from Paul Howell in particular—the train operators in the first panel implied that there were no safety concerns that had not been addressed to ensure the safety of the network.
Do you have any further views in relation to that? I will raise this with the rail freight operators. I was thinking of the dreadful Southall train disaster, where a good friend of mine was killed a number of years ago. Is there some response you want to give for the record in relation to safety concerns?
Mick Lynch: The way that the railway works is that the duty holder, as they call them, has to be satisfied themselves that they will run a safe railway inside the legislation and inside standards. They decide whether that is true or not, based on risk assessment and contingency. People assume that the regulator goes around approving. They do not. They are only satisfied post mortem, if you like—if that is where it comes from—that they did all that they should have done and that they could not have foreseen it. It is up to them to decide whether they run a safe railway.
If you want to run a railway on that basis, you will have to compel the fleet engineers to come in, which was my own grade, who then hand over the trains to the drivers. All the other grades will have to be satisfied that all their employers—it is a multi-employer situation—have a safe regime. If it all goes wrong, they will just say, “Well, we were satisfied at the time that we did what we could.” They have never factored into this the notion that you will compel those people to come to work.
At the moment, nominally, the managers who are largely operating the railway, who are being incentivised with £500 a day, are willingly breaking the strikes. It is a different scenario when you have people who are unwillingly breaking the strike. We think that is an inherent danger, either through stress or other factors that they bring into their safety-critical work.
Q174 Grahame Morris: Are you having discussions with other agencies about the safety aspects? Have you raised your concerns with them?
Mick Lynch: Yes. We called a special meeting with the ORR, the chief inspector. I do not want to put him on the spot, but he was as oblivious as the rest of us about how this is going to work. He outlined what I have just said. We will engage with the employers and the companies and see that they have put in safe systems of working, but they will just fudge over the issue about what it is to be compelled to go to work during the strike.
Q175 Grahame Morris: Do you think the issue will be in sharp focus for the ORR? That was set up after a series of terrible train disasters.
Mick Lynch: They do not work forward. They work after the fact of an incident.
Q176 Grahame Morris: In conclusion, when we have put to Ministers why this legislation is being brought forward, they said it was the norm in Europe. What discussions have you had, either through the International Transport Workers’ Federation or through other organisations? What is the situation in other countries where they have sectoral collective bargaining?
Mick Lynch: Most of those countries are covered by sectoral collective bargaining. It is a different scenario. As far as we have been informed by fellow trade unionists, there has never been an enforcement of any of this legislation in any of the countries where it exists. As they say, it is honoured in the breach. But they have a different formula for industrial action. Being on strike—en grève—in France is a completely different scenario from what we have, whether it is in America, Ireland or Britain. The English-speaking world concept of trade unionism and industrial action does not apply over there because they go for completely different scenarios. They are allowed to strike against a lot more things. We can only strike against the employers. They go on strike against the Government and all sorts of situations. There were no minimum services in France, recently.
Mick Whelan: Quite simply, through the ETWF and the ITWF we have had many conversations. We have many shared experiences. Because of the nature of the companies that currently operate in the UK system, many of our reps sit on European works councils and get this information and see how it operates elsewhere.
The experience is that in European companies where they may have minimum service levels, they are never applied. They are generally not applied because they cannot do it safely. There is a different way in which union density and membership works. You could have a union with very small density, but, as you see in France, if anybody is called out on strike it is not just the union concerned; it seems to be the whole world if it is a national injustice.
Regardless of those minimum service levels, they still retain the right to strike, which is a fundamental difference from what is being proposed here. If I can make a comment, I wonder if all of this in all areas is just driven through the prism of where we are politically at the moment and in a post-covid world. If we did not have so many sectors out on strike at this moment in time, would any Government actually be considering legislation of this kind? I don’t know.
Q177 Grahame Morris: Mr Jenks, do you have anything to add?
Rob Jenks: I don’t have a great deal to add. I know a bit about the situation in Italy, where nobody has ever been dismissed for breaching one of these notices. That speaks volumes about the way my colleagues have described how that works.
It comes down to the political point. This is a politically driven agenda. I mentioned earlier the way the strikes have been prolonged because of inaction by the Secretary of State, through the national rail contracts. I cannot help but think that this has been engineered to get to that stage. “Oh look, we are in a situation where we can do something about it.” If they had sat down and talked to the trade unions, and allowed the employers to do what they wanted to do, or could have been convinced to do, we would not be in this situation because the industrial action would have finished a long time ago.
It also goes to the point that the former Chair of this Committee made. He said that the economic cost of the strikes to the nation would have been a lot less if we had been talking much sooner. The unions were prepared to have those conversations.
Grahame Morris: Let’s hope we can get resolution. Thank you very much, gentlemen.
Chair: That brings us to the conclusion of the session. I thank all three of you for your time and evidence this morning.