Unite vs BA and the Unions vs the State
The High Court ruled today to stop the 12 day strike of BA workers from going ahead. The grounds for this decision were the irregularity of including in the ballot cabin crew members of the union who were set to leave BA anyway prior to the strike itself. However I think there are grounds for viewing the decision by Mrs Justice Laura Cox as a political one.
Firstly, the inclusion of the 800 workers who are leaving (the number provided by BA’s legal team) could not have altered the outcome of the ballot. Unite represents 12,500 staff. On an 80% turnout, with 92.5% voting to strike (figures from BBC), 9,250 workers voted to strike. Even if all 800 of those leaving voted and voted yes to the strike, it would still not have been enough to sway the outcome.
Secondly there are some of the remarks made by Justice Cox herself:
“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,” (BBC)
One wonders what business it is of Justice Cox to express her opinion on a matter that should have had no bearing on the ruling handed down. It was obviously at the forefront of her mind to the point where she felt quite happy to attack a democratically arrived-at decision in her summation.
Whilst not being of the legal professions myself, it strikes me as an outcome opposed to common sense where a judge can strike down the ballot on a technicality that had no bearing on the final outcome of the vote anyway. The judge also ignored the claim by the union that it could not have known who the 800 staff were. I’d be interested to know whether the judge ruled that Unite were lying in this claim or ignored it for some other reason.
What is perfectly clear is that, for all the people who are still attacking the notion of class struggle, the bosses themselves haven’t lost the knack:
“In recent days, we believe Unite has formed a better understanding of our position and of the ways in which we could move forward.
“It has also become very clear that our customers do not believe that old-style trade union militancy is relevant to our efforts to move British Airways back toward profitability.”
This wasn’t old-style trade union militancy. It was a limited strike directed against bosses who were attempting to completely bypass the trade union which the vast majority of their workers (12,500 out of 14,000) had chosen to represent them. Walsh and his PR goons can try and re-frame the debate all they like, but it comes down to the question of whether workers should get a say in decisions made by their employers that change their terms and conditions, or status of employment.
Of course they should. But it looks like the only possible way to achieve this end is through precisely the old-style trade union militancy that everyone seems so quick to attack.
ConservativeHome is reporting that the Unions have amassed a war chest of some £25 million to “unleash hell” on the incoming Tory government. I sincerely doubt this is true; it mistakes the character of the people at the top of the trades union movement in the UK, several of whom have not been slow to condemn the decision by cabin crew to go on strike.
Yet with Harriet Harman adding her voice to those ‘warning’ the workers, it wouldn’t be a bad idea, all told.
Labour is evidently not going to repeal the sort of ridiculous legislation that allows the various arms of the State to mess about with what amount to private members’ organisations. Which, even if Alistair Darling hadn’t effectively renounced the idea, rather puts paid to the notion that the Labour Party is likely to fight the next election on ‘class war’ rhetoric and makes more acute the need for an old-style militancy everyone fears.
Class struggle is being fought on the ground, waged by bosses against their employees, whether the Labour Party or the media wants to take cognisance of it or not. It is the duty of union leaders to defend the interests of their members, as determined by those members. Would that they were up to the task. A war chest to fight the interference of the State – regardless of which party is in government – would be a good start.
Arrest, seizure of property and funds, incarceration – there is nothing the State can inflict that can’t be beaten by workers who are determined. The intervention of the State in this particular dispute is just one more in a long line of reasons to fight back against the laws which infringe on the rights of trades unions. Just as our movement got Taff Vale repealed, so we can force the Trades Union Freedom Bill through even a Tory majority. The Prison Officers’ Association, that, er, bastion of trades union militancy (!?) is showing the way.
I’m not an employment lawyer but I guess the law is something like “the vote must conform to certain technicalities unless there is some overwhelming public interest (and the breach of the technicalities is relatively minor)”. Judges have to make public policy decisions all the time.
I’m not condemning or condoning the decision, I just hope the above is vaguely helpful. It may well be that the Court of Appeal slap it down tomorrow (if they’re appealing).
Thank you for the tip Barney; I suspect you are right but regard it as both unnecessarily restrictive and clearly contrary to the expressed wish of the members of the organisation, whether one includes or excludes the 800.
You’re along the right lines Barney. Apologies in advance for the long post but I thought it would help to explain the legal basis of the decision.
Section 227 of the Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) governs the position on who is entitled to vote in a ballot. In summary, s227 says that only those members of a trade union who will take part in the industrial action are entitled to vote. Applying this to the BA case, it means that those 800 or so members who had accepted a voluntary redundancy package and would no longer be BA employees over the proposed 12 day strike period were entitled to vote.
Now, the fact that some of them did was not fatal to the strike as s232B provides a mechanism by which small, accidental failures under s227 can be disregarded if two criteria are met: (1) the failures must be accidental and (2) they must be on a scale which is unlikely to affect the result of the ballot.
As Dave has pointed out above, there is no doubt that the 800 votes would have made no difference to the outcome even if all had voted against the strike action. So that just leaves the question of whether or not Unite’s failure to restrict the ballot to only those who were entitled to vote (i.e. not allowing the 800 to vote) was accidental? I’m still waiting to read the High Court decision but I suspect from what the newspapers have reported that Unite knew that there were some 800 or so members who had accepted voluntary redundancy but they (Unite) did not have the time to put in place measures to stop those 800 from taking part in the ballot. Remember, Unite were up against the clock as they desperately wanted the ballot to take place before Christmas in order to put BA in as difficult a situation as possible. Therefore, I suspect that Justice Cox found that the failure was not accidental and therefore the test in s232B was not satisfied and the ballot was therefore invalid.
Some people (like Dave and Derek Simpson) call this a technicality and say that Justice Cox was somehow acting outside of her vires by commenting on the length and timing of the proposed strike. Derek Simpson even had the cheek to say that this was a bad day for democracy! It was a flagship day for democracy in the sense that the law, as enacted by Parliament following a democratic process, was upheld by an independent judiciary! The fact that they don’t like the decision is an entirely separate matter. Justice Cox’s comments were what lawyers called ‘obiter’ i.e. that they do not form part of the legal rationale for the decision but are just background comments. Judges do this all the time – it is not a sign of bias or misapplication of the relevant law.