The highest
profile of the particular attacks on trade unions and our members in this year’s
Conservative
manifesto are the new, further restrictions upon the circumstances in which
trade unions are protected from civil liability for losses caused by industrial
action.
Since we are
likely to have to debate this question a fair bit over coming months, it is
worth recollecting the background to the legal restrictions on the right to
strike in English law. There is no legal right to strike, strike action is a
breach of contract and would traditionally have permitted dismissal of striking
employees – and civil legal action against trade unions for encouraging members
to breach their contracts. The latter was the basis of the “Taff Vale”
judgement which led, in response, to the establishment in statute of the
principle that trade unions could be
immune from civil liability for industrial action.
Without this
immunity, industrial action organised by trade unions would become almost
impossible, since the damages caused by strike action could easily dwarf the resources
of the trade unions organising that action.
It is this
immunity which has been circumscribed by successive Acts of Parliament since
the 1980s (with no significant remission during thirteen years of New Labour).
Now the Tories propose to erect further obstacles which trade unions must
overcome if they are to escape legal liability for damages suffered as a result
of industrial action by their members.
The proposed
changes to employment law, set to be included in the Queen’s Speech, include;
·
A
50% turnout threshold in ballots for official strike action;
·
A
higher threshold of support from 40% of all those entitled to vote in ballots
for official strike action in health, education, fire and transport;
·
Repeal
of regulations which prevent the use of agency staff to break strikes;
·
A
time limit on the validity of strike ballot results.
The ballot
threshold proposals would have meant that none of the national strike action taken
by UNISON members in the last Parliament would have attracted legal protection
(nor would almost all of the other strike action).
Bearing in
mind that strike action has been an enduring feature of industrial relations in
the United Kingdom for two centuries and more (regardless of legal
restrictions) – and that strike action has been – and is – ubiquitous in
capitalist economies (including even those where employment law is even worse
than here), it is time to consider how we deal with a future in which our
members take action in respect of which we may not have been able to jump all
the legal hurdles.
If UNISON
members were to take strike action which did not attract legal protection, and
if UNISON did not repudiate such action as specified by law, UNISON
would be liable and could face an award of damages of up to £250,000 to
each person bringing civil action against the Union (as well as the possibility
that a judge would grant an injunction, failure to comply with which could
amount to contempt of court).
Were UNISON
to repudiate such action that would render any members continuing to take
action liable to be dismissed without the right to complain of unfair dismissal
(as workers taking unofficial strike action lose
the limited protection from dismissal which applies in the case of action
which is within the legal restrictions.
This is the
stark reality of our situation and we desperately need an informed, open-minded
debate about what we do next. Unfortunately this is unlikely – at least at
UNISON National Delegate Conference. For some years, the Standing Orders
Committee (SOC) have ruled out of order any suggestion that UNISON would ever
do anything other than slavishly comply with the law.
UNISON Rule
B.2.5 provides that UNISON may engage in “activity
which a union may lawfully
undertake”, and proposals to adopt a policy of non-compliance with the
anti-trade union laws have been ruled out of order for discussion at our
Conference in the past on this basis. UNISON Rule O.1 gives the power to
authorise strike or other industrial action to the National Executive Council
(NEC) and SOC has concluded that this precludes Conference trying to issue
instructions to the NEC about such matters.
Therefore it
is probably the responsibility of our NEC to try to find a way in which UNISON
can support members who find that they have no option but to take action outside the law, without jeopardising the functioning of the Union.
I don’t
think we’ll get the debate going with a straightforward call for action which
would not have legal protection (as some on
the left advocate). Such a call would not, in current circumstances, be an
attempt to initiate a debate to change union policy – it would just be an
attempt to sort out the majority sheep from the minority goats by a would-be
leader of the goats.
Given how
hard it is to mobilise members to take lawful, official strike action, the idea
that we could credibly campaign for action outside legal protection “from above”
is fanciful. The point is that the Government is going to legislate to create
circumstances in which members will come to take such action – and that we need
to prepare for this eventuality.
If we want
to work out a positive way forward we cannot simply ignore the interests of
paid union officials whose salaries and pensions would be at risk if UNISON
were to be subject to massive fines, or to the sequestration of its assets.
Those officials are a part of our trade union, and their distinct
and particular interests (which help to explain why our trade unions act so
often to prioritise the interests of the organisation over those of its
members) need to be taken into account if we want to achieve any change.
So what can
we do?
Those who
prefer brief blog posts will be happy to know that I don’t claim to have an
answer, less still one I can expand on this evening in another thousand words.
I do have a couple of thoughts though, one of which may have more mileage than
the other.
One recent
attempt to circumvent the conservative response of the trade union bureaucracy
to the legal restrictions on industrial action was the
“pop-up union” at Sussex University. We should study this experiment
further, because we could – in principle – create a separate union, alongside
UNISON, which had no significant resources and employed no staff (or none not willing
to bear the risks). That union could call for strike action and UNISON would
not be implicated.
There would
certainly be enormous practical and cultural obstacles to the widespread
application of this approach (I can, for example, confidently predict that
recruitment to a “pop-up union” in the Greater London Region would lead to
attempts to discipline any UNISON activists involved – given that there are
some union officials for whom their power over members and activists is more
important to them than the power of our trade union to defend its members).
Nevertheless, we need to explore this possibility.
Secondly, we
should reflect upon why it is that some of those who work daily for our trade
union would not need to lose sleep at the prospect of fines and sequestration
in the same way as our directly-employed staff. This is because they are
employed by separate legal entities which have a contractual relationship with
our trade union, whether that is Thompsons solicitors, UNISON Insurance
Association or the contractors who run the canteen at the UNISON Centre.
If we are to
be governed by Tories who want to ensure that we end up in circumstances in
which, lawful industrial action having been rendered all but impossible, our
members find themselves compelled to act outside the law (and we are) – then,
if we wish to avoid being compelled to repudiate such action and therefore side
against our members in their hour of need (as we must) then we need to find a
way to put distance between the actions of our trade union and the assets,
resources and staff which might otherwise be put in jeopardy.
I think this
latter suggestion may be more feasible than the “pop-up union” – but neither
option (nor any other that might be thought of) has any chance if our trade
unions continue to be led with conservatism and complacency. We cannot continue
to stick our head in the sand of our Rule Book and refuse to contemplate
supporting unlawful action even when lawful action becomes impossible, nor do
we have time for a sterile “debate” about the principle of “defiance”.
Workers
built trade unions as tools to use in the defence of our interests. As
circumstances change we have to redesign and reshape these tools so that they
remain fit for the purpose for which we created them.
2 comments:
when iwa employed in the print industry my union atthat time-SOGAT 82 face several large fines for ignoring th ethen new legal restrictions- in addition the NGA had similar problems. All this resulted in the what can only be called defeat of the print trade unions and today they are all submerged in UNITE having lost most of their positions as you may remeber closed shops secondary pickets and other means of protection and support becasme unlawful.
Jon, how about balloting smaller units of the union and taking them out separately. More organising but could be effective and a shirt term fix? Would also ensure the strike threshold is met? Just putting it out there. All the best
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