High Court overturns injunction on cabin crew strike

In a decision delivered earlier this morning the High Court has granted the appeal by Unite to overturn the previous injunction on strike action by BA cabin crew. The court granted the appeal by a margin of 2-1.

It took the judges over an hour to read out the judgement, perhaps reflecting the fact that they wished to settle a contentious aspect of industrial relations law. Justice Smith stated that although Unite could have done more to provide the correct information about the result of the ballot BA had; ” failed to persuade me that what was done was insufficient to amount to compliance with the requirements” she also added that; “It was a fair and open ballot and not to uphold the appeal would mean that the rights of workers to withdraw their labour would be undermined.”

The strike action is now back on although Unite Joint General Secretary Derek Simpson confirmed that no strike would take place before Monday.

Cabin crew outside the High Court were overjoyed at the news and any friend of the trade union movement will be delighted by the judgement. Had the orignal injunction been allowed to stand it would have been a huge blow to trade union rights. The 1992 Act on which this judgement and other similar recent injunctions is based, is so crammed full of technicalities that the union must carry out in order to have a legal ballot that the recent strict interpretation by the courts made compliance almost impossible, thereby rendering strike action illegal for all practical purposes, should employers decide to persue an injunction.

As the statement by Justice Smith makes clear, the court were aware of the implications for future strike action if the appeal was not upheld.  

It’s important to understand that the intent of the anti-trade union laws is not to make strike action illegal but to slow down the ability of trade unions to respond swiftly and decisively to attacks by employers. This is done by making the union jump through a series of hoops which gives the employer time to undermine strike action.

Making strike action effectively illegal through a strict interpretation of the 1992 Act would be a massive provocation towards the trade union movement. Such an environment would be highly volatile and unpredictable for employers wanting to avoid unofficial national action along the lines of the construction engineers dispute at Lindsey oil refinery last summer.

The courts have stepped back from such a situation for the time being. However despite the undoubted fact that this is a positive ruling for the trade union movement it does not necessarily mean the end of legitimate strike ballots being over-turned on a technicality. This particular injunction relied on section 231 of the 1992 Act. This lays down the procedures for informing the membership of the result of the ballot. The injunction last December on cabin crew was based on section 226 of the Act. 

However probably the most ludicrous example is that of a recent strike ballot by journalists at Johnston Press where an injunction was granted on the grounds that Johnston Press didn’t employ any journalists! Although it will have to be tested in case-law it would be perfectly possible for employers to argue that today’s judgement only concerns the operation of section 231. A quick glance at the Trade Union and Labour Relations (Consolidated) Act 1992 will reveal that there are hundreds of technicalities that could lead to an injunction on strike action.

So although today is a victory for the whole of the trade union movement the wider problem of the anti-trade union laws remains.


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