Taking strike action in future? Some thoughts

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.