Fighting the anti-trade union laws

Trade Unionists lobbying parliament - trying to persuade at least 100 MPs to turn up at John McDonnell's Lawful Industrial Action bill's second reading, to prevent the Tories crushing it, photo Suzanne Beishon

This article was originally carried in The Socialist newspaper on October 20th.

On 22 October, two days after the government announces its savage public spending cuts, left Labour MP John McDonnell’s Lawful Industrial Action (Minor Errors) Bill has its second reading. The Bill aims to change the law to prevent the courts granting employers injunctions against strike action because of minor technical errors in industrial action ballots. (Since the publication of this article the Bill failed to get it’s second reading because not enough Labour MP’s bothered to turn up to vote for it. Editor)

Jim Horton

If allowed to fall, the government’s axe to public spending will result in a devastation of public services. Tens of thousands of public sector workers will lose their jobs. Private sector workers will not be immune from the jobs cull. Those remaining in work face a management offensive against their terms and conditions.

Decisive in stopping the Con-Dem assault will be industrial action by public sector unions. Yet in their arsenal the bosses have a raft of anti-union laws introduced by Thatcher, which New Labour refused to repeal when they were in power.

In the past year several unions, including Unite and the RMT, have had strike action thwarted by the courts’ application of a strict interpretation of the onerous balloting and notification procedures of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). This is despite huge majorities in ballots.

Most notoriously on two occasions Unite members working for British Airways fell foul of the court’s pro-big business bias. In December 2009 cabin crew voted for strike action by a margin of 92.5% on a ballot turnout of 80% of 12,000 workers. Scandalously the courts granted BA an injunction because a handful of members who voted had already accepted redundancy. And again in May this year BA initially successfully used the High Court to frustrate a strike of BA cabin staff, 80% of whom had voted for action. This was on the flimsy grounds that Unite had failed to comprehensively communicate that out of 9,282 ballots cast, eleven (0.1%) were spoiled. Unite had put the full result, including spoilt ballot papers, on its website and union notice boards. In both instances the claimed minor flaws made absolutely no difference to the ballot result. Although Unite’s appeal against the ruling was upheld, this was not a harbinger of changed legal bias in favour of the unions.

Last year the Court of Appeal ruled in favour of Metrobus against Unite’s 90% vote in favour of strike action, claiming that the 20 hours it took the union to notify the employers of the result did not comply with the legal requirement to notify ‘as soon as reasonably practicable’. Furthermore, the union had failed to explain that the number of members to be balloted had been taken from its central computer. Again these ‘defects’ did not affect the overwhelming support for action.

Also last year EDF won a High Court injunction against the RMT on the grounds that the union’s notice to EDF which described 65 members as engineers/technicians did not give their precise job description.

Section 232b of the TULRCA states that ‘accidental’ errors made ‘on a scale unlikely to affect the result of the ballot’ should be disregarded. However, as recent decisions have revealed, the courts have given an unfavourable interpretation of ‘accidental’ and declared that notices to employers are not included in the protection.

John McDonnell’s Bill should be supported by all trade unionists. Its provisions state that all small accidental failures in ballots and notices, and minor errors in the information about the ballot result, will be disregarded; and the burden of proof will shift so that the evidence required will be that of ‘substantial compliance’. At the same time the unions’ sponsored MPs should put down a motion in parliament calling for the abolition of all the anti-trade union laws.

There is no right to strike under British law. Every industrial action is a breach of the employment contract leaving the union exposed to being sued for damages by the employer. Since 1906 there has been statutory protection from common law where industrial action was in contemplation of or furtherance to an industrial dispute. In the 1980s Thatcher limited the scope of this protection and enacted the additional hurdles of the complex balloting and notification procedures.

In the unlikely event that McDonnell’s Bill reaches the statute books, the vast bulk of the anti-union laws will remain in place. The whole history of industrial relations law also shows that the courts are more than willing to interpret any law in the bosses’ favour.

In fact workers now face further legal restrictions on their rights. Citing increased labour tensions, the employers’ organisation the CBI is pushing for a tightening of the ballot rules so that a strike can only go ahead if a minimum of 40% of the balloted workforce supports it (in addition to a simple majority of those voting). In the past the Tories have proposed the removal of immunity for industrial action that has a disproportionate or excessive effect, which potentially could apply to all strike action.

Some unions are looking towards the European Court of Human Rights to provide a bit of legal protection, but recent decisions of the European Court of Justice have placed the economic interests of the bosses ahead of the ‘disproportionate’ effect of workers asserting their rights.

No trade unionist would lightly risk sequestration of a union’s funds by recklessly ignoring the law. But in the months and years ahead big industrial battles loom. Where the bosses’ anti-union laws are used to frustrate majority support for strike action, or where its provisions act as a shackle on workers taking unavoidable spontaneous or solidarity action, then in such circumstances the unions will have no choice but to support the ‘unlawful’ but justified action of their members.

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