Wednesday, July 18, 2007

Why is it so difficult to take legal and industrial action?

I worry sometimes about how timid we have become as trade unionists. Twenty years ago when I started work I was proud to be part of the 1986 Lewisham “HAC” strike in which members of my then Union, NALGO, struck for five weeks for the safety of workers in the Housing Advice Centre whose security screens were being removed.

We didn’t need to have a secret ballot, we acted on policy agreed by the branch and endorsed at my first mass meeting, of 1,400 members at Catford dog track. Five years later, working in Lambeth, I was one of the workers who engaged in a ten week unlawful occupation of advice centres threatened with closure, saving one of them for five more years to help local people.

Since 1992 and the tightening up of the Tory anti-union laws, left in place under a New Labour Government, the threat to the Union’s resources from unofficial action – and the consequent repudiation of unofficial action by the Union has meant that we have to jump through more and more hoops to get official strike ballots.

The natural bureaucratic tendencies of trade union officialdom have made it progressively harder even to ballot members for action – and when we do it is relatively easy for the employers to trip us up legally. That’s why it is wonderful to be able to wish the Fremantle strikers well for their next day of strike action next week. We need to rethink UNISON’s industrial action procedures to encourage strike action in local disputes as an effective means of putting pressure on employers and strengthening Union organisation.

As strike action became more difficult through the 1990s the branch I was part of turned increasingly to legal action through tribunal applications made collectively or individually on behalf of our members. I recollect using an application for a protective award as a useful tool to help avoid compulsory redundancies in one difficult budget round, and also that mass tribunal litigation was key to restoring lost conditions of service in our Housing neighbourhoods. Also, when our employer knew that we were prepared to challenge almost any dismissal in an employment tribunal, no matter how justified they thought it was, it kept them on their procedural toes in every other case.

However, the Government responded to the increase in tribunal litigation by making it harder to lodge claims, and easier for employers to obtain orders for costs against the Union (although this was always possible…) The Unions generally, and UNISON in particular, have accommodated to this development (and also crucially sought to limit the costs of professional indemnity insurance) by adopting a new approach to tribunal litigation.

In accordance with UNISON’s Representation Guide, lay activists (and indeed full time officials) are no longer supposed to lodge tribunal complaints on behalf of the Union. Instead we complete CASE Forms which are filtered at Regional Office before being passed on to the solicitors, who will only take a case if they judge that it has a “reasonable prospect of success.” This means that the Union does not take marginal cases, is unlikely to set new precedents or explore new legal avenues to defend workers’ rights, and does not weigh up the organisational costs and benefits of litigation, since the lawyers look only at the legal merits of any claim.

I think we need to rethink this and adopt a more combative and participatory approach to tribunal litigation. To do this would mean that the NEC would have to be prepared to indemnify activists and officials representing members at tribunals, and that the Union would need to have clear and objectively justifiable criteria for which cases to take, which would have to be applied consistently.

Currently when we are in dispute with employers locally there is a grave danger that our industrial action procedures tie one hand behind our back and the Representation Guide ties the other – probably not the best way to win?

If anyone out there has any bright ideas about what we should do about these problems, I’m all ears…

1 comment:

Anonymous said...

Join another union? I know that sounds flippant but UNISON's decision to disallow activists to take ET's is cowardice and displays a lack of confidence in its lay activists. Nothing new there then!
Unions have to be at the forefront of making case law and that can involve some degree of risk -particularly on discrimination matters. If UNISON wants to be successful then it has to be seen to challenge, it has to be seen to be confident in its activists, it has to be brave.
Perhaps the officials all need to go to Tolpuddle and remind themselves of what we are about.