Faced with the threat of strike action what can employers do to maintain business as usual? To what extent can you rely on agency workers, and deploy your existing staff, to make sure that services run as close to normal as possible?
The law around this is strict. Agencies are not allowed to supply workers specifically to cover work that is not being done during lawful industrial action. However, employers can continue to use any agency workers already supplied on a ‘business as usual basis’ for the original purposes for which they were engaged. But they cannot be specifically re-allocated to the duties normally performed by colleagues taking part in the industrial action.
So there is legal compliance to think about and there is, of course, potentially the risk of reputational damage if mistakes are made so planning, and good management, are vital when it comes to maintaining ‘business as usual’. Get it right and you minimise disruption to normal service and, importantly, you avoid inflaming the dispute - it only takes one or two misjudgements around your use of agency workers to trigger a backlash from the union and risk a lot of potentially damaging press coverage.
So let’s look at this with the help of Jon Coley, an industrial relations specialist. Jon joined me by video link to discuss contingency planning:
Jon Coley: “One of the first things that we do actually, Joe, and a service we offer for clients, is that we will sit down with them and do some contingency planning if they can see that industrial action is on the horizon and a critical part of that contingency planning is, obviously, looking at how you can maintain business as usual operations. Now, it's well known that it's an offence for an agency to supply agency workers to fill the roles of striking workers or, indeed, to fill the roles of workers who you have redeployed to carry out the work of striking workers, in other words, to backfill. Equally that can be an offence of the employer if they are aiding and abetting, or causing the agency to supply those workers and the trade union will be all over it. Clients regularly have letters from the likes of Unite to say we are concerned that on our day to strike action there are agency workers on the shop floor. Now, there are obviously a number of ways that the client can address that and to make sure they maintain business as usual without necessarily having to resort to agency workers. I had one client recently that outsourced a complete operation for a limited period with a commercial agreement sitting there to make sure that it was demonstrated that the operation was being carried out by a third party. It could be employing temporary labour directly, whether that's bank staff, casual staff, or employing temporary labour on a fixed term contract. It could be redeploying existing workers. So I've had managers who've done cleaning jobs, etcetera, just to get that particular employer through that period of strike action. So there are a number of alternative options in terms of how you can get alternative labour into the employer to make sure you maintain business as usual and the impact of any strike action is minimised without necessarily having to resort to agency labour.”
Joe Glavina: “What are the problems you hit on if you don't do your contingency planning?”
Jon Coley: “It links back to what we talked about earlier on the leverage campaign, Joe. I think most clients will do some sort of contingency planning if industrial action is on the horizon because, if not, they may be taken by surprise by the leverage campaign. I had a client recently who realised that the trade union only had to pull out a small number of staff that could potentially bring the whole operation to a standstill. So it is really understanding the pain points yourself, the points of embarrassment, before the union can try to attack them, it’s thinking things through such as do we need to do any stockpiling? Are we particularly prone to any orders to any particular client? Also, to be prepared in terms of gathering intelligence, gathering intelligence on the picketing, gathering intelligence on any protests, making sure that we have our plans in place to be able to address industrial action and if you don't do that pre-planning and that contingency planning it is likely to make the industrial action that much more painful and, also, it means that you will be subject to the surprises which otherwise you may have pre-empted.”
That was the second of two interviews with Jon Coley on the subject of contingency planning for potential industrial action. Last week Jon talked about HR’s role in the communications piece, as well as discussing balloting and leverage tactics which Unite, in particular, is very fond of under its new leader Sharon Graham who was previously the head of Unite’s leverage department. That programme is: ‘Address voter apathy to avoid ‘yes’ to strike action’ and is available for viewing now from the Outlaw website.
