Saturday, January 10, 2015
Tories throw down the gauntlet - how shall we pick it up?
Whereas the Tory announcement about caps on public sector redundancy payments was simply an electioneering gimmick, their plans to toughen further anti-strike laws offer a genuine glimpse into a future in which we get a Government of the right later this year.
The suggestion that strike ballots ought not to permit "lawful" strike action (in certain sectors) unless there is both a 50% turnout and a "yes" vote equivalent to 40% of those eligible to vote is plainly intended to raise an almost insurmountable hurdle in the way of trade unions wishing to call strike action which does not jeopardise union funds (or permit employers selectively to dismiss strikers without fear of tribunal claims).
I blogged recently about how the average turnout in UNISON strike ballots over the past year has been below 40%. The majority of strikes by UNISON members over the past year would not have been "lawful" under the Tory proposals.
In response to these outrageous proposals, our union leaders have rightly condemned the hypocrisy of Tory politicians (most of whom would not sit in Parliament if they had to pass the same threshold of support to spend five years legislating as they want us to pass to spend even one day striking). It is important that we echo such condemnation - and that we win an argument with every single trade unionist that we must use our votes (and every ounce of influence we have over the votes of friends and families) to avert another Government of the right.
As appalling and disappointing as the Labour leadership may often be, in this election more than any I can remember we need to use our every effort to secure a Labour Government.
However, this is also the most unpredictable General Election of my lifetime. It would be foolishly irresponsible not to begin to reflect upon how we might have to respond if we ended up with a Government which imposed such restrictions upon us.
I regret that UNISON's starting point - unless we could shift it - would be dumb compliance with any law, no matter how reactionary. Indeed, we could rely upon the consistent approach of our Standing Orders Committee to the interpretation of our Rules to ensure that any proposals to our Conference to do anything other than comply with "the law" (whatever it comes to be) would be ruled out of order.
Those of us who can see that trade unions cannot tie themselves forever to compliance with anti-union laws (however much they undermine our human rights or the UK's international treaty obligations) will remember that our movement was born out of defiance of unjust laws (such as the Combination Acts) by the courage of those (like the Tolpuddle Martyrs) who faced the consequences of such defiance. It is not, and cannot be, a principle of trade unionism that we act within the law whatever that law says.
What is the legal protection which is removed from strike action taken in defiance of the restrictions imposed by the anti-union laws?
There are two answers. One for workers and one for the union as an organisation.
Workers are "protected" from dismissal during official ("lawful") strike action. I've put "lawful" in inverted commas because all strike action is a breach of contract and I've put "protected" in inverted commas because all it means is that a tribunal complaint of unfair dismissal should succeed if strikers are sacked selectively, or at all within the first twelve weeks of a dispute. The law does not mean that strikers cannot be sacked in such circumstances - only that they have a fair chance of compensation should they be.
This "protection" would not apply to strike action which was not covered by a ballot in line with whatever legal restrictions applied at the time. That would mean that employers could selectively dismiss strikers who could not bring complaints of unfair dismissal. These workers would be in the same position therefore as all workers always were before the concept of unfair dismissal was introduced in the 1970s. In those days every striker always ran the risks which now threaten "unofficial" strikers.
As for the union, it would be at risk of fines which could ultimately bankrupt the organisation if it failed to repudiate any strike action by its members which did not comply with whatever restrictions had been imposed upon strike ballots.
Therefore all those whose livelihoods depend upon the union as an organisation, who have given their careers to the movement, would be threatened by the consequences of strike action taken in breach of whatever law the Tories might impose upon us. The jobs - and pensions - of our paid officials would be at risk.
Whilst some activists might feel that union employees should bear such a risk as a moral choice, given that service to our movement is an honour rather than a career opportunity, it is clear that the adverse consequences of the potential bankruptcy of the unions needs rather more considered thought.
I suggest we consider adopting the approach of some of our adversaries, who subdivide corporations and contract out their activities to avoid all manner of liabilities (and to make it more difficult for us to organise).
In common with most trade unions UNISON already outsources the great bulk of our legal work and - whilst the levying of fines on our Union, or the sequestration of our assets, would be bad news for our solicitors, it would not pose them an existential threat. Why not extend this approach if we must?
If we face a Government which would remove all legal protection from our trade unions should our members take industrial action in defiance of impossible requirements then we need to massively reduce the (not illegitimate) vested interests which would (understandably) favour lawfulness above effectiveness.
We need therefore to consider transferring the employment and premises of our trade unions to a legally separate entity which would then provide a service to our independent trade unions (much as the General Federation of Trade Unions offers some smaller unions such services). In these circumstances we could risk the resources of our trade union - as we would need to - upon industrial action which was legally risky without thereby jeopardising the salaries, pensions and welfare of the bulk of those employed to assist our members. This would not be simple and it would have many drawbacks, but it is time we thought about this.
If David Cameron is Prime Minister in June this year we simply cannot afford trade unions which will comply with the law come what may. If UNISON Conference, in those circumstances, was not enabled to discuss the most drastic measures to prepare for a world in which lawful strike action would become almost impossible (and hence unlawful action almost inevitable) we would invite irrelevance.
Workers won't surrender no matter what changes are made to the law - and we need to continue to organise such workers under any Government.
Sent from my BlackBerry 10 smartphone on the EE network.