The anti union laws introduced by Thatcher and Tebbit in the Eighties and made worse by New Labour have been used repeatedly and with increasing frequency by employers to undermine effective trade union action.
As a result of the legislation, the main function of trade union officials is no longer to support and defend the members who pay their wages, but to police the membership on behalf of the bosses. When workers at Heathrow struck in solidarity with their brothers and sisters at Gate Gourmet in 2005, the employers got a court order against this “illegal secondary action,” and the TGWU promptly pulled out every stop to bring the dispute to a rapid and unsatisfactory conclusion. Defeat was once again snatched from the jaws of victory.
The legislation works by allowing the courts to undermine the finances of the union involved. For the union bureaucrats, the defence of the union’s financial apparatus is far more important than the defence of the union members, since it is from the apparatus that they derive their privileges. So instead of confronting the judiciary and taking on the law (and if the T&G had pulled out its entire membership in 2005 to defend itself from the attack of the judges, it could have put paid to the legislation once and for all), the bureaucracy in almost every instance takes the path of disciplining its own members instead of leading a determined fight back.
New Labour made the legislation far worse by requiring unions to submit details to the employers of the workplaces of all those who have been sent ballot papers. Since it is almost impossible for unions to maintain membership records that are 100% accurate at all times, this gives a carte blanche to the employers to challenge ballots, even when the ‘discrepancies’ wouldn’t make a scrap of difference to the outcome anyway. This was how the RMT signallers’ strike – which was called against rail cuts and in the interest of safety – was undermined last year.
Judges have even had the arrogance to decide whether they think a strike is ‘proportionate’ to the issues in dispute. In passing judgement against BA cabin crew in December 2009, Mrs Justice Cox declared, “A strike of this kind over the 12 days of Christmas is fundamentally more damaging to BA and the wider public than a strike taking place at almost any other time of the year.” So the judges now no longer restrict themselves to arcane points of law and procedure, but have taken it upon themselves to ban strikes if it looks like they might be effective!
Unions don’t always cower before the law however. When the Prison Officers Association struck in 2007 it did so without even holding a ballot. Ministers declared the action illegal, but in the face of such determined action they didn’t dare to take the union to court. There is a lesson in that for all of us
The RMT tipped the scales a little way in our favour last month with the landmark decision in the Court of Appeal to overturn the injunction that had been granted in the High Court in January preventing a 48 hour strike on Docklands Light Railway. As Bob Crow explained: “The Serco Docklands injunction on balloting process would have taken the anti-union laws in this country to within a whisker of effectively banning the right to strike if it had been allowed to stand and would have tightened the noose around the necks of nurses, firefighters, ambulance crew, home helps and others engaged in fighting back to the point of strangulation. This victory today helps clear the path for those workers to take action.”
John McDonnell’s Private Members’ Bill is an attempt to tip the balance further still in our favour. The bill proposes reducing regulatory burdens on trade unions in relation to the balloting and notice requirements for lawful industrial action. It would extend the provision for small accidental errors contained in section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. The burden of proof in applications by an employer to restrain strike action by injunction would be changed, so that the employer would have to show that the union has failed to achieve ‘substantial compliance’ with the ballot and notice requirements. The Bill is unlikely to be passed into law however. It ran out of time in its first reading last October and is unlikely to achieve a second reading.
It is really up to us as trade unionists to bring the whole panoply of anti union legislation crashing down. And that will only happen when we take determined action to defy it. Motion 20 on Industrial Action offers a means by which we as members can take control of the situation should a court interfere in any industrial action we might call in the future. The motion seeks to instruct the National Executive, in the event of any such interference by the courts, to call mass meetings of members up and down the country so that we can collectively consider our response.
If we are going to defend our pay, conditions and pensions from the ravages of the Con-Dem austerity drive, we will undoubtedly need to take industrial action in the not too distant future. There have already been mutterings in the right wing media about banning strikes in essential services. Only by relying on the collective strength of the membership will we be able to resist such attacks on our most fundamental right as trades’ unionists – the right to withdraw our labour. Support Motion 20.