Fighting the anti-strike legislation

The anti-trade union laws are important weapons in the bosses’ armoury. Business secretary Vince Cable has threatened this week to make the laws even tougher, in the light of coordinated strike action against the cuts. These laws can be used to intimidate workers, prevent strikes and sack striking workers. They can also act as a shield for some reluctant trade union officials who are only too happy to drag out the process of organising official action until the mood for action has died down. Alex Gordon, the president of the transport union RMT and Bill Roberts of the Socialist Party England & Wales national committee explain how these laws are being used and how they can be circumvented with effective, united organisation – especially with the development of the National Shop Stewards Network (NSSN)

The Con-Dems’ attacks
Alex Gordon, president of the National Union of Rail, Maritime and Transport Workers (RMT)
All British governments for the last 25 years have breached International Labour Organisation (ILO) Conventions, which define strike action as a fundamental human right.

RMT is currently taking the British government to the European Court of Human Rights for outlawing the right to take sympathetic (or solidarity) action. This was banned as ‘secondary action’ by Thatcher’s government in 1985 in breach of international law.

The John Major government’s Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) required trade unions to identify individual members involved in strikes to employers, even though employers can seek damages against employees for striking.

New Labour’s Employment Relations Act 1999, made it unfair to dismiss an employee (though not a worker) for taking lawful industrial action within a “protected period” of eight weeks – increased to 12 weeks in 2004.

After 12 weeks however, striking workers can be dismissed with impunity. Even within the 12 weeks workers are not protected against action short of dismissal, for example demotion. Neither can courts compel employers to reinstate wrongfully dismissed employees.

Labour also replaced the requirement for unions to identify individuals on strike with a requirement for unions to provide information to enable employers to identify employees on strike and prepare for strike breaking. Judges interpret this to mean the union must provide a matrix or spreadsheet showing numbers of union members balloted and called on to strike in each workplace and job title.

Since 2009 employers have won numerous High Court injunctions over this requirement. Employers have been able to persuade judges that unions fail to supply sufficiently accurate information in the legal “notice of ballot”. It is easy to imagine in most disputes that calculating precise numbers of union members employed in various workplaces or job titles is extremely complex and subject to frequent changes.

Union victory
However, on 4 March 2011 the Appeal Court overturned recent injunctions granted by High Court judges against rail unions Aslef and RMT and demolished legal arguments used to justify them. The judgement went further than John McDonnell MP’s Lawful Industrial Action (Minor Errors) Bill last year, which Ed Miliband couldn’t bring himself to support at a second reading.

RMT general secretary, Bob Crow described the judgement as “not only a victory for RMT’s 80,000 members but also a massive victory for seven million trade unionists in the UK.”

The Appeal Court confirmed the right to strike in international law; ILO Conventions 98 and 151 and the European Convention on Human Rights Article 11(1) on freedom of association.

The judgement has bolstered unions such as PCS, NUT, ATL, UCU and Unite representing potentially two million civil servants, teachers, lecturers and other public sector workers seeking to coordinate strike action in defence of services, jobs and pensions on 30 June.

Following the half million strong TUC national demonstration on 26 March and the trouncing of Clegg’s Lib Dems in local elections on 5 May, a mass public sector strike on 30 June could be the catalyst for refocussing real opposition to the Con-Dem assault on our public services.

Chancellor of the Exchequer George Osborne’s recessionary austerity policy and Tory and Lib Dems’ shared visceral hatred of trade unions, therefore make new legislation restricting strike action very likely.

Already Tory MP Dominic Raab, a former corporate lawyer, London Mayor Boris Johnson and the Policy Exchange think tank are demanding minimum participation thresholds for ballots or strike bans in essential public services.

On 26 April, Raab used a parliamentary ten minute rule bill to propose new restrictions on strikes. According to Raab, if a trade union wants to call a strike in transport or ‘essential services’, it should win a majority of all those eligible to vote in a postal ballot. Current UK law requires a simple majority of those who vote, a standard method in any organisation.

For example, at the 2010 general election, Raab polled 32,134 votes in his Surrey constituency. More than a quarter of his 76,962 constituents did not vote. His party polled 10.7 million votes nationally, their Lib Dem partners 6.8 million, in a UK electorate of 45 million people. Neither Raab, nor his party, nor their governing coalition partners would be elected under the rules he proposes for trade unionists.

Although Raab’s ten minute rule bill fell, it is widely regarded as an opening salvo to intimidate unions from organising strikes against effects of spending cuts in the next four years.

The argument about what form new anti-union legislation should take has been taking place among and between the governing parties. At last month’s Institute of Directors (IoD) conference, George Osborne upstaged the organisation that regularly voices the most extreme, free-market, anti-regulation views.

The IoD’s Miles Templeman complained that Osborne’s government had not “fully grasped the burden of employment law, which discourages smaller companies from taking on staff.”

Osborne rebutted this, announcing plans to cap tribunal discrimination compensation; abolish 90-day consultation for redundancies; and scrap Transfer of Undertakings Protection of Employment (TUPE) rules that protect workers whose jobs are privatised.

He then went further, urging IoD members to help government ministers rewrite legislation on workers’ rights, saying: “There are lots of people who will oppose this, lots of pressure groups. We really need the people who make the arguments… to make sure they are heard. Otherwise it is government alone defending itself against those pressure groups.”1

Tory hypocrisy
Not to be outdone Mayor of London, Boris Johnson was at it last month, currying favour with the Confederation of British Industry (CBI) and staking his claim to be next Tory leader.

Johnson called for a 50% minimum turnout in strike ballots, while the CBI is demanding 40% of all those balloted should vote in favour for strike action. Needless to say, under either rule Boris wouldn’t have been elected Mayor of London.

Giving a flavour of the central importance that the issue of anti-strike legislation is now assuming for the coalition parties, Johnson attacked government ministers for considering a new requirement that unions calling strikes in public services should ensure that a minimum service level provision is maintained.

This was discussed at a meeting between Johnson, Francis Maude, Cabinet Office minister and chief Tory strategist, and Ed Davey, Lib Dem employment relations minister.

Knowing from experience on London Underground (LUL) that a 50% service can be worse than no service at all, Johnson accused the government of being “lily-livered” for not bringing in tough laws to make it harder for unions to win strike ballots.

Of course, Johnson wants to distract from his own incompetence at Transport for London, where RMT members Arwyn Thomas and Eamonn Lynch, two train driver reps sacked by LUL because of their trade union activities won unfair dismissal tribunal claims and are currently the subject of planned combine-wide strikes by RMT members demanding reinstatement.

As the Financial Times noted: “The government is engaged in complicated negotiations with public sector workers over employment and pensions. These would be jeopardised were it to appear to embark on an anti-union crusade. Transport for London, which runs the Tube, may not be blameless in its handling of the dispute.”2

More likely however, will be an attempt to extend ‘proportionality’, a concept imported from European law in a number of recent European Court of Justice cases. This allows judges to decide what forms of industrial action (if any) are appropriate in disputes, something not even Thatcher’s anti-union laws achieved.

The government has been examining a minimum service level as used in Spain and Italy. However, in both countries the industrial relations climate is very different from Britain, with a right wing social partnership agenda dominating national collective bargaining, precisely the sort of 1970s ‘corporatism’ that British businesses represented by the IoD are allergic to.

For example, in the Italian public transport sector, governments and employers only recognise trade unions for pay bargaining if they sign up to ‘social partnership’ – including running a minimum service during public transport strikes. One result of this has been the growth of more militant, ‘unofficial’ trade unions in Italy and Spain as workers reject the partnership model of industrial relations in favour of class struggle. You can’t have social partnership with austerity.

In Britain, from a historical low point the number of working days lost to strikes and numbers of workers involved both as a whole and on a public/private basis is increasing. In 2010 November was the month with the highest number of strike days (24,000) involving 13,000 workers largely in the public sector.

This figure was already eclipsed in March 2011, the latest month for which figures are available, with 51,000 strike days, in eleven different disputes involving 39,000 workers, of whom 35,000 work in the private sector.3 Clearly something is changing.

The next six months will be critical in escalating the fightback against austerity cuts. A 30 June public sector strike will be a milestone, but an onslaught of anti-union laws will likely follow. For trade unions to resist this will require intelligent strategy and tactical acumen.

The National Shop Stewards Network can perform a key role, encouraging exchange of experiences between trade unionists in struggle, generalising lessons from successful strike action and continuing to build solidarity at workplaces and with community anti-cuts organisations.

Above all the NSSN will continue to campaign for a complete repeal of the UK’s obnoxious anti-trade union laws and for a positive framework of legislation giving workers rights to belong to a trade union, rights to collective bargaining and rights to back it up with strike action when necessary.

1 ‘George Osborne hits back at business over regulation and workers’ rights’ The Telegraph, Richard Tyler, Enterprise Editor 6:00AM BST 12 May 2011

2 ‘Boris v strikers’, FTcommentEditorial Published: May 10 2011 22:27 |,dwp_uuid=063fb9c2-3000-11da-ba9f-00000e2511c8,print=yes.html

3 Statistics on UK labour disputes covering: number of working days lost, number of stoppages of work and number of workers involved in strike action both as a whole and on a public/private basis. ONS 18/5/11


Liberation from the laws
by Bill Roberts
In January 2009 thousands of construction workers were walking off sites up and down the country in support of their comrades at the Lindsey Oil Refinery. As in the ‘old days’, rather than complying with the ‘jumping through hoops’ legal processes of official industrial action, the unofficial and illegal strikes were triggered by workers voting in car parks rather than through postal ballots.

The sense of liberation was almost palpable as over 25 years of anti-union laws were bypassed by this spontaneous and ultimately successful movement of workers. Similar movements took place throughout that year with the occupations in Visteon and Vestas and the unofficial stoppage at Linamar over the sacking of Rob Williams as convenor.

Postal workers have been forced to take unofficial action against bullying management attempting to impose attacks on jobs and working conditions. The current battle to prevent the closure of mail centres and delivery offices in London could spread unofficially if management do not make concessions. And every time a postal worker refuses to cross a picket line to deliver mail, they break the anti-trade union laws.

However, over the last two years the laws and especially their often farcical interpretation in the courts have continued to hamper unions taking legal strike action.

The British Airways dispute in particular was affected in this way and has opened up a real debate about how the dispute could have been won in light of the court judgements which bogged the dispute down making it harder to maintain the mood for action.

Tackling the laws
In reality, there are two aspects to how unions and their members tackle the anti-union laws. Firstly, how can the laws be repealed and secondly, while they remain on the statute book how can workers conduct effective industrial action?

The Socialist Party doesn’t take the anti-union laws lightly. They present a real threat to the finances of the unions, as was shown with the NUM in the miners’ strike and print union SOGAT 82 in the Wapping dispute. Also, it is far easier for management to victimise workers if they take unofficial action.

It is correct for the unions to carefully weigh up defying the laws but the disputes in 2009, along with countless others, many unreported, show that if there is the sufficient confidence, determination and initiative, the laws can be rendered ineffective.

In fact, the nature of unofficial strikes often leads to short sharp action. But for this action, it is particularly important to calculate the balance of forces in the workplace. For instance, are management behind on orders and desperately need to keep production going? Whatever happens, the overwhelming support of the workforce is necessary.

Unofficial action is criticised by management, the capitalist media and right-wing union leaders as undemocratic because workers don’t have a secret postal vote from the comfort of their own home, not ‘pressured’ by their workmates. They don’t worry about the pressure of the media and management, which has far more traction away from the workplace. However, it’s ironic that actually unofficial action has to be even more democratic than official action because while an official strike ballot can be won with 51% of the vote, an unofficial overtime ban, let alone a strike, is difficult to maintain if even a handful of workers refuse to take part.

We don’t counterpose unofficial action to official. In Linamar, the unofficial stoppage won a temporary reprieve but ultimately the dispute was won through an 88% majority in an official ballot which forced management to capitulate. The stewards’ committee used the unofficial action to raise the workforce’s confidence for the official ballot but crucially also to put the Unite leadership under pressure to conduct the ballot as quickly and effectively as possible.

As a result, unlike other disputes at the plant, the ballot was completed so fast that the first strike day would have been just five weeks after Rob Williams was sacked. The key factor was that ALL the action demonstrated the determination of the workforce to fight to the end.

As with all disputes, whatever the nature of the action, there are no guarantees of victory. While the Visteon workers were able to win a far better redundancy payout because of their action, the Vestas wind turbine workers were unable to win any concessions through their occupation. However, it has to be said that the action itself was incredible as the workers were largely unorganised at first before the RMT became involved. In fact, the Vestas dispute shows what can be achieved in the private sector where only 12% of workers are in a union, if workers are prepared to act.

The struggle against Heath’s Industrial Relations Bill in the early 1970s showed that when the unions act en masse, the law can be changed. However, even then when the law was new and the union movement more active than at present, it wasn’t defeated in the abstract but in the living struggles, such as the unofficial strikes to get the Pentonville Five dockers released. These strikes forced the TUC to call a general strike – when they knew that the Tory government were going to cave in.

The Communist Party ‘Liaison Committee for the Defence of Trade Unions’ rank and file organisation played a key role in the unofficial action. The National Shop Stewards Network (NSSN) has to aspire to this position over the next period.

History shows that there is also a political dimension. But decisions in Parliament such as the Trades Disputes Act of 1906 were not won in isolation but through the pressure of workers’ struggles as well. This is one of the main lessons of the 13 years of New Labour government, which continuously ignored the call of the unions to repeal the anti-trade union legislation. It would have taken mass action to force Blair and Brown to retreat rather than lobbying.

It’s because of this changed character of Labour, which now acts as an open representative of big business that the need for a new mass workers’ party is still posed, as a necessity to legislate in the interests of workers.

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