Minimum Service Levels Bill receives Royal Assent

[weeklycommuter]

Strikes (Minimum Service Levels) Act 2023

www.legislation.gov.uk

3 Power to make consequential provision
(1)The Secretary of State may by regulations made by statutory instrument make provision that is consequential on this Act.
(3) A statutory instrument containing (whether alone or with other provision) regulations under this section that amend or repeal provision made by primary legislation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(4) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
Power of Secretary of State to specify minimum service levels
(1)The Secretary of State may, for the purpose of enabling work notices under section 234C to be given, make provision by regulations for levels of service in relation to strikes as respects relevant services (“minimum service regulations”).
Work notices relating to minimum service levels
(1)Where minimum service regulations have been made as respects a relevant service, an employer may give a work notice to a trade union in relation to any strike
(5) A work notice must not identify more persons than are reasonably necessary for the purpose of providing the levels of service under the minimum service regulations.

It is for the train operator not Government ministers to decide whether or not to give a work notice with the aim of operating the number of services under the minimum service regulations, the train operator does not have to do this and it would appear they can legally only do so for a set of services that is agreed to be the minimum service level of 40% of the operator’s timetabled services during the strike.

Minimum service levels for passenger rail: government response and policy approach

www.gov.uk

Train operation services
Where a strike affects passenger train operation services, the MSL is the equivalent of 40% of the operator’s timetabled services during the strike.

But what does that mean? The following are listed as timetabled services
Brockenhurst to Lymington Pier 10 minutes
Weymouth to London Waterloo 3 hours
Is it 40% of the number of timetabled services from start station to end station? So 40% of services could be made up of the shortest services which would be a lot less than 40% of the total run time of all the train services run by the train operator during the strike? Or the longest services which would be a lot more then 40% of the total run time?

The following means that the 40% of train services whatever that is means it is in effect a ceiling not a floor on the services that an train operator can attempt to provide during a strike should the train operator decide to attempt to do so. The train operator would not be able to issue work notices for a service level more than the MSL. If more than one possible sets of services were identified which were agreed to meet the MSL would the train operator have to choose the set of services which requires the lowest number of people identified as necessary to provide the set of services?

(5) A work notice must not identify more persons than are reasonably necessary for the purpose of providing the levels of service under the minimum service regulations.

 

[Snow1964]

Minimum Service Level has come into force today

• minimum service level laws to come into force for rail, border security and ambulance services to mitigate disruption if strikes are called
• delivers on manifesto commitment to introduce minimum service levels for rail strikes
• government also consulting on plans to introduce minimum service levels to cover children’s education

The government is taking strides towards ensuring key services remain accessible during strikes, as the first minimum service levels (MSL) regulations came into force from today (8 December 2023). Following Parliamentary approval, the regulations are set to apply in the rail sector and border security and ambulance services.

For the rail sector, MSLs will provide an additional tool for train operators to reduce the impact of strike action, meaning that rail operators can aim to run 40% of their normal timetable during any strike.

For a strike affecting infrastructure services, certain key routes will also be able to stay open and for longer than is normally the case during strikes.

Laws passed to reduce strike disruption and protect public services

New laws to reduce the impact of industrial action on rail, border security and ambulance services while balancing the ability of workers to strike.

www.gov.uk

Rail Guidance is here

Minimum service levels for passenger railway services regulations

Information about applying the Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 in practice.

www.gov.uk

 

[Confused52]

Minimum Service Level has become active today

The Act requires 7 days notice so the first day it permits a work notice from a TOC to apply to would be on or after the 16th December. 2023.

 

[Nicholas Lewis]

The Act requires 7 days notice so the first day it permits a work notice from a TOC to apply to would be on or after the 16th December. 2023.

I would imagine that ASLEF will now just go down the route of withdrawing overtime and rest day working as that will create more disruption for many operators. Also how many operators have got the resources to still deliver a timetable that complies with the schedule should a strike be called. All in all a pretty desparate action by this failing govt which wont deliver the outcome they seek.

 

[Skie]

I’m amazed anyone thinks this is workable.

The Rosters teams will all be on strike next.

 

[class ep-09]

I’m amazed anyone thinks this is workable.

The Rosters teams will all be on strike next.

And if only 40% of them has to come to work then there won’t any rosters .

 

[Class 317]

I’m amazed anyone thinks this is workable.

The Rosters teams will all be on strike next.

Surely if the the minimum service level is always the same once one MSL timetable has been planned with the associated diagrams and rosters for each day of the week it becomes just like a second timetable? Surely it's then a case of matching the standard roster to the MSL one and then the works order get issued.to those required?

I honestly can't see why some think it will be so difficult to implement in practice. Yes the first time will be a lot of work and may prove difficult but the second time it's used it should be a case of matching a normal diagram/ roster to an MSL one which already exists and which surely would be the same each time even if it's a different person actually required? I'm assuming each rostered turn has a reference number of some sort attached to it so it should only require matching one referenced turn to another? No need to rethink the wheel each time as the MSL timetable would always be the same bar engineering works. Yes I'm oversimplifying it their a bit but it shouldn't be overly complicated once done a few times.

 

[Nicholas Lewis]

Surely if the the minimum service level is always the same once one MSL timetable has been planned with the associated diagrams and rosters for each day of the week it becomes just like a second timetable? Surely it's then a case of matching the standard roster to the MSL one and then the works order get issued.to those required?

I honestly can't see why some think it will be so difficult to implement in practice. Yes the first time will be a lot of work and may prove difficult but the second time it's used it should be a case of matching a normal diagram/ roster to an MSL one which already exists and which surely would be the same each time even if it's a different person actually required? I'm assuming each rostered turn has a reference number of some sort attached to it so it should only require matching one referenced turn to another? No need to rethink the wheel each time as the MSL timetable would always be the same bar engineering works. Yes I'm oversimplifying it their a bit but it shouldn't be overly complicated once done a few times.

Many operators can't deal with action short of a strike to come up with a reliable timetable now. So you could get the planners and resourcing teams to come up with a plan of course as part of each timetable iteration i suppose but who decides which drivers are going to be compelled to work isn't clear.

 

[Class 317]

Many operators can't deal with action short of a strike to come up with a reliable timetable now. So you could get the planners and resourcing teams to come up with a plan of course as part of each timetable iteration i suppose but who decides which drivers are going to be compelled to work isn't clear.

Surely that's not to difficult to work out. If someone is rostered turn 12345 and this is required as turn 67890 in the MSL roster (might be different diagram but same start/ end time) then if Bill is rostered to work it he gets a work notice or if Phill is rostered that turn he gets one?

 

[Nicholas Lewis]

Surely that's not to difficult to work out. If someone is rostered turn 12345 and this is required as turn 67890 in the MSL roster (might be different diagram but same start/ end time) then if Bill is rostered to work it he gets a work notice or if Phill is rostered that turn he gets one?

Maybe but not so sure there aren't human rights issues here about being forced to work if they want to take industrial action that has been called in accordance with current legislation. Going to be interesting whoever calls a strike next as to how this plays out.

 

[Class 317]

Yes their will be court action for sure but that's different to saying it won't work on a practical basis.

Lots of reasons I can see court action especially where it interacts with existing worker rights, disability and discrimination laws etc. Some.challenges could come from users on routes not covered under disability discrimination laws for example. A court will decide what a MSL means to a large extent.

Just think it's important to separate the 2

 

[Facing Back]

Many operators can't deal with action short of a strike to come up with a reliable timetable now. So you could get the planners and resourcing teams to come up with a plan of course as part of each timetable iteration i suppose but who decides which drivers are going to be compelled to work isn't clear.

I thought "who decides which drivers...." is quite clearly specified in the act as the employer. They have to consult with the union but don't need to accept their input. The drivers (and other staff) named will lose their protection if they still strike.

I'm sure there will be any number of problems implementing this and of course a variety of legal challenges.

And if only 40% of them has to come to work then there won’t any rosters .

The act says that the employer can "compel" enough workers to not strike in order to run up to 40% of the services, not that only 40% of the staff need to come to work. If a TOC needs 100% of it's roster clerks to achieve this, then it can theoretically dragoon all 100% of them.

Yes their will be court action for sure but that's different to saying it won't work on a practical basis.

Lots of reasons I can see court action especially where it interacts with existing worker rights, disability and discrimination laws etc. Some.challenges could come from users on routes not covered under disability discrimination laws for example. A court will decide what a MSL means to a large extent.

Just think it's important to separate the 2

Another root to dispute has just occurred to me and if someone has noticed something in the act which clears this up I'd be interested.

The TOC can issue work notices to the minimum staff required to run up to 40% of it's timetabled services on any given strike period. The TOC is able to choose which of its services to run within that 40%. If the chosen 40% are in effect all of the rush hour trains in both the morning and evening peak and nothing in between then my guess is that will require more staff to be present than if they spread out the services across full shifts. My reading is that they are allowed to do this - and in addition, whilst the staff are on on shift, they will be driving/guarding/inspecting that happen to be able to be run on top of the 40%.

 

[Watershed]

I thought "who decides which drivers...." is quite clearly specified in the act as the employer. They have to consult with the union but don't need to accept their input. The drivers (and other staff) named will lose their protection if they still strike.

I'm sure there will be any number of problems implementing this and of course a variety of legal challenges.


The act says that the employer can "compel" enough workers to not strike in order to run up to 40% of the services, not that only 40% of the staff need to come to work. If a TOC needs 100% of it's roster clerks to achieve this, then it can theoretically dragoon all 100% of them.


Another root to dispute has just occurred to me and if someone has noticed something in the act which clears this up I'd be interested.

The TOC can issue work notices to the minimum staff required to run up to 40% of it's timetabled services on any given strike period. The TOC is able to choose which of its services to run within that 40%. If the chosen 40% are in effect all of the rush hour trains in both the morning and evening peak and nothing in between then my guess is that will require more staff to be present than if they spread out the services across full shifts. My reading is that they are allowed to do this - and in addition, whilst the staff are on on shift, they will be driving/guarding/inspecting that happen to be able to be run on top of the 40%.

I think it's more than 'permitted', indeed I imagine that's what TOCs with a predominantly commuter-based market will be expected to do by the DfT.

 

[Facing Back]

I think it's more than 'permitted', indeed I imagine that's what TOCs with a predominantly commuter-based market will be expected to do by the DfT.

I've go no evidence to back that up, but I would completely agree that the DfT would expect that. Under the NRCs I don't think they can mandate it - or penalise the TOCs for not doing it (well not very much) but moving forwards I would be astonished if that wasn't the direction of travel - and I would guess it is an area which case law will determine.

 

[baz962]

I thought "who decides which drivers...." is quite clearly specified in the act as the employer. They have to consult with the union but don't need to accept their input. The drivers (and other staff) named will lose their protection if they still strike.

I'm sure there will be any number of problems implementing this and of course a variety of legal challenges.


The act says that the employer can "compel" enough workers to not strike in order to run up to 40% of the services, not that only 40% of the staff need to come to work. If a TOC needs 100% of it's roster clerks to achieve this, then it can theoretically dragoon all 100% of them.


Another root to dispute has just occurred to me and if someone has noticed something in the act which clears this up I'd be interested.

The TOC can issue work notices to the minimum staff required to run up to 40% of it's timetabled services on any given strike period. The TOC is able to choose which of its services to run within that 40%. If the chosen 40% are in effect all of the rush hour trains in both the morning and evening peak and nothing in between then my guess is that will require more staff to be present than if they spread out the services across full shifts. My reading is that they are allowed to do this - and in addition, whilst the staff are on on shift, they will be driving/guarding/inspecting that happen to be able to be run on top of the 40%.

This begs a question though. If they do it in this way and some of the drivers they need are nowhere near any of those start times , then how do you compel them to work. I'm not saying they can't but does the MSL allow them to completely move the drivers start time contrary to the already agreed start time and maximum movement.

 

[Nicholas Lewis]

This begs a question though. If they do it in this way and some of the drivers they need are nowhere near any of those start times , then how do you compel them to work. I'm not saying they can't but does the MSL allow them to completely move the drivers start time contrary to the already agreed start time and maximum movement.

They will surely have to comply with existing T&C's that staff are employed under?

 

[Stephen42]

The TOC can issue work notices to the minimum staff required to run up to 40% of it's timetabled services on any given strike period. The TOC is able to choose which of its services to run within that 40%. If the chosen 40% are in effect all of the rush hour trains in both the morning and evening peak and nothing in between then my guess is that will require more staff to be present than if they spread out the services across full shifts. My reading is that they are allowed to do this - and in addition, whilst the staff are on on shift, they will be driving/guarding/inspecting that happen to be able to be run on top of the 40%.

A work notice is required to specify the work required to secure that level of service. A train operator cannot plan to deliver more than 40% of scheduled services if they issue work notices, it's total services planned not nominating which trains count towards the 40%.

 

[dk1]

They will surely have to comply with existing T&C's that staff are employed under?

Oh yes!!

 

[Facing Back]

They will surely have to comply with existing T&C's that staff are employed under?

Indeed. Nothing in the act gives the TOCS the authority to vary shift start, end or notice outside of current terms and conditions.

This begs a question though. If they do it in this way and some of the drivers they need are nowhere near any of those start times , then how do you compel them to work. I'm not saying they can't but does the MSL allow them to completely move the drivers start time contrary to the already agreed start time and maximum movement.

No. It does allow them to make more than 40% of drivers come to work though if that is required to deliver the 40% of services.

A work notice is required to specify the work required to secure that level of service. A train operator cannot plan to deliver more than 40% of scheduled services if they issue work notices, it's total services planned not nominating which trains count towards the 40%.

I would disagree slightly. I think a TOC can ”plan” to deliver as many services as they want. They can only compel through work orders the staff they need to run the (up to) 40% of services that they specify as included in their guaranteed minimum service. I don’t see that the legislation says that the work notice ”must” specify which services the driver will run, just that they will turn up at a certain time and drive trains until a certain time. So theoretically a TOC could run over 40% by utilising drivers who are not on strike, driver managers and nominated drivers who have time on their shifts in addition to their “allocated” trains.

Whether that is desirable or sensible is a different matter - but I can’t see where the act prohibits it.

I think whether the TOC can determine which services count towards towards the 40% (eg peak time only services) or whether any service that a nominated driver runs automatically counts is one of those things that’s will get the courts attention quite quickly.

 

[Snow1964]

I think whether the TOC can determine which services count towards towards the 40% (eg peak time only services) or whether any service that a nominated driver runs automatically counts is one of those things that’s will get the courts attention quite quickly.

Looks to me the guidance is quite clear, they can designate 40% of the published timetable (not a slimmed down P-coded version), and issue work notice. The exact calling pattern doesn't have to be same as published timetable

Can add others to the work notice until 4 days before (if for instance somebody on work notice called in sick),

As for which services to choose, the guidance says to enable passengers to make important journeys, to access work, healthcare and education, and also to protect the wider economy eg retail and night time economy).

So that seems to me couldn't just work peak hours, instead of say, a school train, or one serving late night shopping under the guidance

 

[manmikey]

7 days notice for a work order, Notice of strike called on 21st or 22nd Dec for action on 4th or 5th Jan mean work notices issued on 28th or 29th December, meaning train planners, & operations managemet who would not normally be working over Christmas having to work all over Christmas to get the MSL diagrams produced and approved and staff to work them identified....It seems like a simple way to get the first use of MSL to be as awkward as possible. Of course the TOCs don't have to use MSL which could be a win for ASLEF either way

 

[Snow1964]

7 days notice for a work order, Notice of strike called on 21st or 22nd Dec for action on 4th or 5th Jan mean work notices issued on 28th or 29th December, meaning train planners, & operations managemet who would not normally be working over Christmas having to work all over Christmas to get the MSL diagrams produced and approved and staff to work them identified....It seems like a simple way to get the first use of MSL to be as awkward as possible. Of course the TOCs don't have to use MSL which could be a win for ASLEF either way

I get where you are coming from, but is it in drivers interest to upset and annoy the planners, and risk being given some real horrible rosters in 2024 as revenge.

Surely their dispute is with DfT funded operators, not with teams that determine their working day, who they want to keep on their side

EDIT although I used term planners generically when answering, now been reminded it is actually two stages, planning diagrams, and rosters (which are done by others) to implement the diagrams

 

[dk1]

I get where you are coming from, but is it in drivers interest to upset and annoy the planners, and risk being given some real horrible rosters in 2024 as revenge.

Surely their dispute is with DfT funded operators, not with teams that determine their working day, who they want to keep on their side

Are you talking about diagrams rather than rosters? Train planning cannot just change my roster as everything has to be agreed at local level with our ASLEF reps on that front. Train planning already produce some horrible diagrams so no they’ll be no change there. If they want to get revenge, which I highly doubt, then bring it on.

 

[manmikey]

I get where you are coming from, but is it in drivers interest to upset and annoy the planners, and risk being given some real horrible rosters in 2024 as revenge.

Surely their dispute is with DfT funded operators, not with teams that determine their working day, who they want to keep on their side

I get your point too, but train planners produce diagrams for train crew they don't produce rosters, In my TOC the local union reps check all diagrams produced by train planning to ensure they are "legal" with respect to T&C's and then produce the rosters which are then agreed with management (one of the many regressive changes the DFT what's to make is to take the union out of roster production)
So train planners cant just make horrible diagrams, it's not their job to make them nice either, it's their job to get as much productive work in a diagram as possible, and as long as they are "legal" then they can't be challenged.

Train planning is a dark art, they have their work cut out for them with twice a year & summer time table changes, the weekly mods for engineering works, strikes and extraordinary events such as emergency diagrams for storms etc .

This is one of the many reasons MSL is going to be such a pain, train planners are going to have another heap of mods to do on top of their day jobs.
We all work in a 24*7 industry and they have to do their bit too, even if it's seen to be "self inflicted" by industrial action but the government introduced MSL not ASLEF.

 

[Efini92]

Just a thought, if the staff that had work orders came in but then were too stressed by it all to carry out their duties, they’ve fulfilled the obligation to come in….

 

[ainsworth74]

Just a thought, if the staff that had work orders came in but then were too stressed by it all to carry out their duties, they’ve fulfilled the obligation to come in….

Suppose it depends on what processes the company has in place to deal with people who it has a reasonable suspicion are making a false declaration of being unfit for duty. By my reading the companies policies and procedures for managing absence or similar still apply so you could still suffer consequences that way even if it isn't related to the industrial action.

 

[Goldfish62]

Suppose it depends on what processes the company has in place to deal with people who it has a reasonable suspicion are making a false declaration of being unfit for duty. By my reading the companies policies and procedures for managing absence or similar still apply so you could still suffer consequences that way even if it isn't related to the industrial action.

Don't know about the rail industry but where I've worked a fit note from Day 1 was required from anyone who went sick during a period of industrial action.

 

[Snow1964]

Just a thought, if the staff that had work orders came in but then were too stressed by it all to carry out their duties, they’ve fulfilled the obligation to come in….

Couple of points under 31b, it includes staff such as HR needed to get to the 40%

The second paragraph of section 40 makes it clear about work notice is only for necessary amount to fulfil the 40%. So could argue if anyone claims stress under that scenario then probably don't deserve to be getting full pay for their reduced contribution

https://assets.publishing.service.gov.uk/media/6571e843049516000d49be46/strikes-minimum-service-levels-passenger-railway-services-regulations-2023-guidance-on-the-regulations.pdf

 

[LowLevel]

Suppose it depends on what processes the company has in place to deal with people who it has a reasonable suspicion are making a false declaration of being unfit for duty. By my reading the companies policies and procedures for managing absence or similar still apply so you could still suffer consequences that way even if it isn't related to the industrial action.

It would be a brave manager who accused someone of falsifying a mental health condition. I have all sorts of problems which in accordance with my responsibilities I as a safety critical employee disclose to my manager and occupational health. The Government has decided to steal my rights having suddenly decided they're necessary because people take a stand against them being nasty. Being ordered to work against my conscience to support that diktat could easily tip me over the edge and make me unfit for work.

 

[Moonshot]

Assuming we will have a Labour government in the next 12 months maximum, these MSLs will be irrelevant anyway as Labour has promised to repeal the legislation