Minimum Service Levels Bill receives Royal Assent

[Elecman]

Under the legislation only the train operators can decide whether or not to plan to run exactly 40% of the services during a strike and issue work notices to their relevant employees to achieve this. It is not a decision for the Government and the legislation gives the Government no legal authority to instruct a train operator to run the 40% minimum service during a strike. If a train operator decides not to plan to run the minimum service level during a strike and not to issue any work notices there is nothing that the Government can do about it. Many of the press reports on this issue imply that train operators will be forced to run 40% of services during a strike but this is not the case, the legislation gives train operators the option to plan to do this and issue work notices for this but it does not require train operators to do this.

If they don’t the owning group can kiss goodbye to their lucrative contract

 

[BrianW]

Consider Article 7 of Chapter 4.2 of the National Rail Contract, entitled Obligation to use “all reasonable endeavours” under Chapter 4.2. You will find the same formulation under Obligation to use “all reasonable endeavours” under Schedule 1.2 of the Service Contract with the OLR subsidiaries. I read it as they do not have to use Work Notices unless they would otherwise fail to meet the 40% level in which case it would on the face of it be failing to employ all reasonable endeavours which would be in breach of contract. The choice of risk is entirely up to operators. However if they do decide to do it they would have to consult the DfT under other clauses and if DfT said yes the would be indenmified against the risk. If you were the MD what would you do?


Forget what? If it is wrong correct it. The rest of us don't know what the RMT thing to which you refer actually is, or whether it is related to what you were commenting on.

Will that be 40% of the timetable announced the previous night? Confusion reigns/ rains/reins?

 

[Stephen42]

Will that be 40% of the timetable announced the previous night? Confusion reigns/ rains/reins?

The statutory instrument defines it as of the services that were due to run in the National Rail Timetable published by Network Rail based on available infrastructure. Available infrastructure is likely to be the contentious part, there are recommendations in the non-statutory guidance but to me at least it feels open to interpretation.

 

[Confused52]

Will that be 40% of the timetable announced the previous night? Confusion reigns/ rains/reins?

No, it will be the timetable for the relevant as it was specified before the 7 days notice required in the work notice, so essentially LTP. However I would expect planners to deal with changes that they know were going to be made as STP by putting them in the 60%. The information in the Explanatory Memorandum says what is meant to happen with closed stations and network. The trains run that part of the route, from planned origin to planned destination that is expected to be available to them, stopping where they are able to. The times may be varied as needed and possible! Well that is the theory!!

 

[Tractor2018]

If they don’t the owning group can kiss goodbye to their lucrative contract

Do you imagine if the TOC's do it en masse that the OLR has the capacity to manage what's required, should they remove all those contracts?

 

[Goldfish62]

Do you imagine if the TOC's do it en masse that the OLR has the capacity to manage what's required, should they remove all those contracts?

No, of course they wouldn't. They could barely manage TPE.

 

[Confused52]

No, of course they wouldn't. They could barely manage TPE.

So the DfT would not remove the contracts but just reduce the payments and leave the contracts as a punishment! Like Arriva!!

 

[Goldfish62]

So the DfT would not remove the contracts but just reduce the payments and leave the contracts as a punishment! Like Arriva!!

Yes, there would obviously be some sort of revenge enacted on the TOC's.

 

[Tractor2018]

No, of course they wouldn't. They could barely manage TPE.

Yes, there would obviously be some sort of revenge enacted on the TOC's.

So they wouldn't have the contracts removed, but in some way reduced? I'm not sure of your direction.

They reduce them then.......at which point the TOC's say nah, we're out. And it's left to the OLR after all.

Make no mistake, the government have neither the aptitude or the desire to run the railway. Additionally, they like having the TOC's in the middle as a scapegoat - they wouldn't risk losing that comfort blanket.

Should the TOC's not issue work notices the government would simply spin it in some way. You can bet your bottom dollar.

 

[TheLastMinute]

Yes, there would obviously be some sort of revenge enacted on the TOC's.

So they wouldn't have the contracts removed, but in some way reduced? I'm not sure of your direction.

They reduce them then.......at which point the TOC's say nah, we're out. And it's left to the OLR after all.

Make no mistake, the government have neither the aptitude or the desire to run the railway. Additionally, they like having the TOC's in the middle as a scapegoat - they wouldn't risk losing that comfort blanket.

The ability of OLR to take over contracts on mass is, frankly, a moot point as no TOC is going to refuse to issue Work Notices should the DfT request that 40% of services run. That course of action would almost certainly put them in breach of contract and likely liable for lost revenue plus damages, all for literally no benefit to the company. Should they walk away, they would also be potentally liable for OLR costs cover the term of the original agreement.

Should the TOC's not issue work notices the government would simply spin it in some way. You can bet your bottom dollar.

No, they would just sue.

 

[duffield]

I'd predict that if the TOCs do issue work orders the unions will find sufficient grounds to challenge the details of their implementation in court and bog the whole issue down until it's irrelevant. For a start they could argue about things like the correctness of the employer's exact interpretation of the 40% rule, and I'm sure there are plenty of other details like that which could be litigated and appealed if necessary.

 

[Watershed]

I'd predict that if the TOCs do issue work orders the unions will find sufficient grounds to challenge the details of their implementation in court and bog the whole issue down until it's irrelevant. For a start they could argue about things like the correctness of the employer's exact interpretation of the 40% rule, and I'm sure there are plenty of other details like that which could be litigated and appealed if necessary.

With a time-sensitive issue such as this they would have to apply for an injunction, and the issue would be decided quickly. The notion that the unions will be able to obstruct the implementation of these MSLs is fanciful, no matter how much bluff and bluster may appear in their press releases.

 

[class ep-09]

With a time-sensitive issue such as this they would have to apply for an injunction, and the issue would be decided quickly. The notion that the unions will be able to obstruct the implementation of these MSLs is fanciful, no matter how much bluff and bluster may appear in their press releases.

Unions may not be able but each member required to work , in their own way, may make the whole service pointless.

leave to you to guess what members can do to make any service canceled , delayed etc.
And don’t tell us there will be consequences to them , there won’t be if members decide to work to every rule in existence.

 

[Krokodil]

The service is likely to fall apart of its own accord. Back when strikes meant that virtually no services were running, people stayed away from the handful that remained. When ASLEF did the staggered strike the other week (so some operators ran while others didn't) those services that ran were overwhelmed and left scores behind.

 

[Fragezeichnen]

Unions may not be able but each member required to work , in their own way, may make the whole service pointless.

leave to you to guess what members can do to make any service canceled , delayed etc.
And don’t tell us there will be consequences to them , there won’t be if members decide to work to every rule in existence.

It's kind of amusing to see the fury aroused by an attempt to balance out the unusual situation whereby TOCs are theoretically private companies, but no matter how much industrial action takes place, there is never any risk of redundancies or insolvency as would be the case in any other industry. My guess is that very few rail staff would take part in any official or unofficial action which had any risk at all of ending their career.


The alternative would be that the railway industry as it currently is should just be cut off from funding. Gives the TOCS a free hand to negotiate, but if they go bankrupt as a result of strikes, let it happen. Set up new companies, and if the unemployed staff want to continue working in the industry they can choose whether or a not to accept the(probably much worse) terms offered.

 

[Watershed]

It's kind of amusing to see the fury aroused by an attempt to balance out the unusual situation whereby TOCs are theoretically private companies, but no matter how much industrial action takes place, there is never any risk of redundancies or insolvency as would be the case in any other industry. My guess is that very few rail staff would take part in any official or unofficial action which had any risk at all of ending their career.

Indeed. Seems like there are a lot of people who want to have their cake and eat it. Either the railway is a subsidised and essential public service, in which case it's reasonable for minimum service levels to be guaranteed during strikes, or it's a private enterprise, in which case it doesn't deserve the subsidy that keeps everyone employed.

 

[Tractor2018]

Seems like there are a lot of people who want to have their cake and eat it

Indeed - shareholders of privately owned but publicly funded companies.

 

[43066]

With a time-sensitive issue such as this they would have to apply for an injunction, and the issue would be decided quickly. The notion that the unions will be able to obstruct the implementation of these MSLs is fanciful, no matter how much bluff and bluster may appear in their press releases.

It’s equally fanciful to imagine that MSLs are going to meaningfully improve the current unsatisfactory situation for passengers. They will merely serve to entrench the dispute, and lead to a continuation of the utter mess we’ve seen over the past eighteen months.

It’s just yet more performative nonsense; another unpleasant attack on peoples’ rights from an authoritarian government, in its death throes, which legislates to change the rules whenever it loses an argument; see also Rwanda, and the recent attacks on the right to protest. It’s a strategy that is utterly failing.

If the ASLEF dispute is dealt with in the same way as the RMT’s was, it’s possible they’ll never be implemented. Otherwise, things will continue largely as they are until the next election, and surely nobody who truly cares about the industry wants that. Let’s hope common sense prevails.

It's kind of amusing to see the fury aroused by an attempt to balance out the unusual situation whereby TOCs are theoretically private companies, but no matter how much industrial action takes place, there is never any risk of redundancies or insolvency as would be the case in any other industry. My guess is that very few rail staff would take part in any official or unofficial action which had any risk at all of ending their career.

That works both ways; normal employers would have an incentive to settle the dispute, rather than provoking and prolonging it for ideological reasons, with recourse to taxpayers’ money.

The alternative would be that the railway industry as it currently is should just be cut off from funding. Gives the TOCS a free hand to negotiate, but if they go bankrupt as a result of strikes, let it happen. Set up new companies, and if the unemployed staff want to continue working in the industry they can choose whether or a not to accept the(probably much worse) terms offered.

Or - shock horror - another alternative would be to allow TOCs to negotiate with the unions (as appears to now be happening with the RMT), thereby creating a pathway for the dispute to actually be resolved.

It’s also notable that the same unions have achieved negotiated pay deals for rail staff in the sectors not being interfered with by the DfT. None of those companies have “gone bankrupt as a result of strikes”.

 

[Watershed]

Indeed - shareholders of privately owned but publicly funded companies.

Discussion about shareholders of such companies is liable to head off topic - we are discussing minimum service levels here. You can always create a new thread in the General Discussion section if you'd like to discuss shareholders further

 

[Train_manager]

The alternative would be that the railway industry as it currently is should just be cut off from funding. Gives the TOCS a free hand to negotiate, but if they go bankrupt as a result of strikes, let it happen. Set up new companies, and if the unemployed staff want to continue working in the industry they can choose whether or a not to accept the(probably much worse) terms offered.

You have described a FOC. Lol.

And DB cargo have now offered there staff 7% rise.

So all frieght drivers except DRS(who controls them? Have a quess) have been offered 7% ish.

And no FOC has been on strike!!! Yet.

 

[Thirteen]

I wonder if LUL/TfL might take advantage of MSLs for Tube strikes in the New Year. Might be tricky given TfL is controlled by the Mayor of London who's firmly against them.

 

[Facing Back]

Indeed - shareholders of privately owned but publicly funded companies.

I don't know how much of the meagre profits that the NRC's allow TOCs is passed back to the owners in the form of dividends - most of it I would imagine as it seems unlikely that they will be re-investing profit but it seems that the return on their capital investment isn't very good. You can argue that it is a risk free return - which it is effectively is but the coupons on recent government bonds would seem to outperform them. I'd imagine the TOC's owners are quite keen to see a return to taking a risk in order to be able to make a sensible return.

 

[Train_manager]

With a time-sensitive issue such as this they would have to apply for an injunction, and the issue would be decided quickly. The notion that the unions will be able to obstruct the implementation of these MSLs is fanciful, no matter how much bluff and bluster may appear in their press releases.

Sorry I missed your post.

As I've previously posted.


Call strike action and comply with the MSL, issue work notice's etc.

Then cancel strike at 23.59. Simple.

 

[Watershed]

Sorry I missed your post.

As I've previously posted.


Call strike action and comply with the MSL, issue work notice's etc.

Then cancel strike at 23.59. Simple.

That would be entirely legal, just as it always has been. But it wouldn't be obstructing MSLs, it would be making use of (some would say abusing) the fact that there's no minimum notice required for withdrawing a strike.

 

[Facing Back]

That would be entirely legal, just as it always has been. But it wouldn't be obstructing MSLs, it would be making use of (some would say abusing) the fact that there's no minimum notice required for withdrawing a strike.

Why do you think that calling action and retracting it at the last minute is not used more often? As you say it is no explicitly illegal, it would be effective in disrupting business, and the staff involved would - on the face of it - not lose any pay.

 

[blackpoolsouth]

If they don’t the owning group can kiss goodbye to their lucrative contract

And then who is going to jump in and take over as I'm not seeing companies wanting to run franchises like they used to.

I'm loving the incoming fights between the train companies and the DfT. It's like the rats are turning on each other

 

[Snow1964]

Government has given update with Regulatory Policy Committee opinion

The regulations will establish a minimum level of service that rail companies, if they choose to make use of powers to issue work notices, must provide in the event of industrial action taken by employees in the sector.
As originally submitted for RPC scrutiny, the IA was not fit for purpose due to the RPC assessing that the IA did not clearly set out the requirement being placed upon businesses, preventing the RPC from determining whether the assessment of the impacts was sufficient. The RPC also noted similar concerns over any requirements placed upon small and micro businesses (SMBs). In addition, the IA did not clearly set out the evidence supporting key assumptions.
The IA now clarifies that the requirement to provide a minimum service level (MSL) only applies when employers choose to use the powers already afforded to them to issue work notices. The Department has included an appropriate assessment of the impact of this policy, which is permissive as far as operators are concerned, and has considered whether any businesses directly affected by the policy are SMBs. While the IA does not include an overall quantitative impact estimate for the scenarios discussed, the Department has provided proportionate assessment of the proposal. The IA includes some assessment of wider impacts but would benefit from fully considering potential impacts upon the structure of the rail market and investment into the sector.
Published 20 December 2023

The Strikes (Minimum Service Levels: Passenger railway services) Regulations 2023: RPC Opinion (Green-rated)

Regulatory Policy Committee opinion on DfT's Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 IA

www.gov.uk

 

[Goldfish62]

Government has given update with Regulatory Policy Committee opinion

The Strikes (Minimum Service Levels: Passenger railway services) Regulations 2023: RPC Opinion (Green-rated)

Regulatory Policy Committee opinion on DfT's Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 IA

www.gov.uk

So, if the rail companies choose not to use the powers they don't have to provide any service. If they choose to exercise the powers then they must legally provide a 40% service level.

I know which option I'd choose!

 

[Llanigraham]

Or - shock horror - another alternative would be to allow TOCs to negotiate with the unions (as appears to now be happening with the RMT), thereby creating a pathway for the dispute to actually be resolved.

It’s also notable that the same unions have achieved negotiated pay deals for rail staff in the sectors not being interfered with by the DfT. None of those companies have “gone bankrupt as a result of strikes”.

What, like has happened in Wales and Scotland?

 

[Class 170101]

So, if the rail companies choose not to use the powers they don't have to provide any service. If they choose to exercise the powers then they must legally provide a 40% service level.

I know which option I'd choose!

So an all (in this case all being 40%) or nothing situation with nothing in the middle like some TOCs have been doing with ASLEF strikes upto now being allowable?