Call to arms: Unions must use Thatcher’s strategy
When Thatcher was elected, it was widely understood that there would be a conflict with the unions. In 1981, a miners’ strike successfully deflected the intentions of the government. Cue special legislation and months of stockpiling coal to fight the next battle. When the time came, Thatcher’s government was well and truly ready to take on the miners and win, disheartening the entire labour movement at a stroke.
News that the Court of Appeal has granted an injunction against Unite’s planned industrial action against FirstBus in London makes me think it’s time the labour movement reversed the strategy of the Thatcher government. Every government, over the past thirty years, has handed down a string of anti-union legislation, and in the case of FirstBus, it was New Labour’s little additions which proved key to stopping the strike.
This makes it more evident than ever that a straightforwardly political approach to getting rid of the legislation is not going to work. New Labour has largely ignored the so-called “Warwick Agreement”. Waiting for another Labour government, even should it win through on a pledge to change union legislation and armed with MPs deeply rooted in the traditions of the labour movement, will mean waiting years in which unions continue to seem pointless, since they are stymied by the State and the law.
Law, I might add, which is being interpreted very liberally, even within the anti-union agenda of the Major and Blair governments.
I’ve already spoken about the British Airways strike, and how it was prevented. A couple of employment lawyers have been in touch – via the comments section, via twitter and via email – arguing about what legislation was responsible and why the union should have been more savvy in applying the rules, to ensure that their strike could go ahead. Having reviewed the legislation they point to, I reject this viewpoint.
Section 227 of the Trade Union and Labour Relations (Consolidation) Act 1992 stipulates:
(1) Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others.
(2) The requirement in subsection (1) shall be taken not to have been satisfied if any person who was a member of the trade union at the time when the ballot was held and was denied entitlement to vote in the ballot is induced by the union to take part or, as the case may be, to continue to take part in the industrial action.
The actions of Unite fall properly foul of neither of these regulations. Only if one reads the inverse of 227.1 is a law broken. That is, 227.1 expects that all members who are to be involved in the strike get a vote. The law is only broken is one expects that the text also implies the inverse of this, that the union must exclude from the vote anyone who is not liable to be engaged in industrial action.
Even if that is a fair expectation, Unite attempted to defend itself on the grounds that it took reasonable steps to exclude people bearing in mind 227.2, whereby if even one person had been excluded who was entitled to vote, the industrial action could also have been stopped by the courts, or the union rendered liable for damages and loss of earnings incurred by the employer.
Legislation like this is arcane, hardly allowing for simple human error (note that 227.2 does not contain a ‘reasonable’ clause, which persuades me that it is the exclusion of people rather than the inclusion of people against which this legislation is purely aimed). This shouldn’t surprise us; the goal of Thatcher and her successors wasn’t to make the playing field fair, it was to tie the hands of unions using the powers of the State.
In the case of MetroBus vs Unite, in July last year, sections 226, 231 and 234 of the same act were used. One of the key judgments passed down was that Unite the Union did not report to bosses with sufficient precision the occupational grades of the workers who were due to take industrial action. The purpose of such a measure is simply to permit bosses to prepare for strike action, which rather defeats the point of the endeavour.
The result was that even bus strikes where the courts had ruled that bosses’ legal challenges were spurious (and these days, every strike provokes a legal challenge of some degree, justified or not) were called off, as in South Yorkshire. Unite feared that the judgment handed down, which rendered them liable for losses in the event of a successful legal challenge to the procedure of the strike, would be subsequently applied elsewhere.
Now a new strike, by FirstLondon bus workers, has been halted by the courts. This strike is much lower profile than the British Airways strike, so I await details being released – the court judgment was only handed down recently. This is what Martin Mayer, Chair of United Left within Unite the Union had to say on the subject, however:
“In the case of First London, Firstgroup has actually tried to use a number of legal reasons to stop the strike, most of which failed because they were totally invalid.
“But one succeeded.
“Unite balloted its members for strike action and action short of a strike and a majority was returned in favour of both. The union scheduled action short of a strike within the first 28 days and then discontinuous strike action in the second month.
“The employer argued that the two questions on the ballot paper constituted two different ballots and the one for strike action was not activated within 28 days. It argued the strike action planned for January 6 [2010] was therefore illegal.
“The judge accepted that there was a legal argument here and issued the employer an injunction.
“Unite and other unions dispute that by asking two questions this represents two separate ballots – they see it as one ballot with two different questions, allowing the union some flexibility in the type of action it takes.”
“In this case Unite used the mandate to start action within 28 days with an action short of a strike and step up the action in the second month when that failed. Unite has never had any legal advice to say that this is not valid and nor has any other union.
It should be fairly obvious that, whether they initially used action short of a strike, or an all-out strike, the mandate was resoundingly agreed upon by workers and was promptly activated – in the first instance by action short of a strike. Again, arcane legislation, which passed itself off, once upon a time, as being in the interest of workers, so that they weren’t being used as a political hobbyhorse by Union leaders, is directly interfering with the clearly expressed will of those workers.
The nature of the law regarding trades unions and industrial action now means that it is in the interest of every employer to do their level best, in a courtroom, to have action declared invalid. No doubt in some cases, due diligence by a trades union would prevent this working. But simple human error, and errors which in no way have a wider bearing on the rights of members of unions to have their say, are now being used to stop strikes. These laws have, as Mayer asserts, become an Employer’s Charter.
Every single strike that is stopped represents a blow to the credibility of unions. Every blow to the credibility of a union means less members, less organisation and ultimately declining terms and conditions for the workforce. It must therefore be in the interest of unions and workers to organise against the legislation that is forming such a barrier to industrial action, even when there are no grounds for imagining that the ballot was undemocratic, or, having fulfilled the minutiae of the law, that it might have gone some other way.
To reverse Thatcher’s strategy, and the laws laid down by her government and her successors, the unions must pick a fight with the government. If they want secondary striking laws repealed, if they want clear, fair rules to protect the interests of members – not the interests of employers – then they must be prepared to break the law. Strikes must be balloted for, and multiple unions must come out in support. Civil disobedience must be organised and the State must be bullied into relinquishing its powers.
The strikes, the mass occupations of Parliament Square, the sporadic disruption of the national business must continue until Parliament votes to repeal these laws, and the other laws which represent a gross overreach as regards the diminishing rights of the individual. And make no mistake, the issues are totally connected; the organised labour movement – even in its atrophied state – remains the only consistent means whereby to control our political caste, even if that control remains moderated by the confines of capitalism.
If groups such as participated in the Convention on Modern Liberty really wish to see things done differently, then they should use their media profiles to support such direct action, use their lawyers to help us out when we get arrested and use their funds to cover every town in Britain with slogans and banners. This type of thing must be prepared long in advance, the battleground must be favourable to workers and the battle fought at a time of our choosing. Thatcher obviously knew her Sun Tzu.
Judging by the last thirteen years of a Labour government, one march of millions is not enough. Only continuous action on this scale will get the job done. A pipe dream this may sound, but a new war – this time in Yemen – is not out of the question. The next government will continue with actions against which the common sense of the British working class will rebel. If we can harness that energy against the war on Iraq, however dissipated it may have ended up, we can do it again for subjects even more crucial to our everyday lives.
Encouragingly, building blocks for such a comprehensive approach are slowly being laid. The last period has seen advances by Broad Lefts within various national unions. Anger, particularly by younger workers and the young unemployed, is quite evident – whether it’s in the clear shift in the 18-24 demographic away from the Labour Party, or in the strident chanting of a thousand marchers worried that they can’t get jobs. Even Labour centrists, stymied by their own leadership, seem suddenly more open to working outside narrowly sectarian channels on key issues.
Issues don’t get more key than this.
A strong argument.
Of course, the right-wing of the Labour movement will argue that we would just be provoking the Tories into taking away still more freedoms; that with a ready-made excuse they’ll be able to go further than they otherwise would do. I think there are a couple of strong rejoinders:
1) of course, is the ideological argument that it is the strength and organised activity of the labour movement more than the colour of the government which wins concessions from capital. I don’t subscribe 100% to this argument in its crudest form – the colour of the government matters – but there’s a lot of truth in it.
2) is contextual: in the 1980s the Tories could point to industrial strife under both Tory and Labour governments to make a public argument that “something must be done” about the power of the unions. In this case, most of the unions have been relatively quiet for the past couple of decades. The electorate will certainly notice when this fight kicked off and who is to blame. For this reason I’d diverge from your post slightly and argue the unions don’t need to pick a fight with a Tory government, a Tory government will pick a fight with them. The unions need to prepare, and pick the moment they respond carefully.
I don’t know anyone who does subscribe to argument (1). Actually I believe the opposite; a victory in winning concessions from capital can trigger a favourable change in government. Witness the collapse of Ted Heath’s government in the 1970s. We’ll not get all we want from such a change in government, but decisively shifting the debate to the left of the mainstream Labour Party is a necessary prerequisite for socialist appropriation of power.
You’re quite right, of course, that the Tories will pick a fight with the unions. If the unions react merely defensively, unless they employ overwhelming organisation and literally bring out all seven million trades unionists, they’ll be beaten. Union rhetoric, however, can back the Tories into a corner so that they must strike in a particular area, for which the unions should be waiting.
I don’t disagree with any of that; I probably expressed myself unclearly in the first comment if it seemed like that is the opposite to what I wrote.
I’m not an employment lawyer – sadly – but I think they have a point. True s227 doesn’t explicitly stop ex-employees from voting on strikes. But it isn’t particularly hard to read it as so-doing. After all if you don’t read it like that then it would imply that all members of the union – employees of the company or not – could vote. Thus we could end up in the situation that the employees of a firm vote not to strike but are forced to by other members of the union. Or at least so it looks to my in-expert eyes.
On Unite’s defence the court said this (in summary, boiled down from an abstract):
“Unite could not say that it had taken such steps as were reasonably practicable for the purposes of s.227, s226A and s.234A. Unite knew of information concerning employees who had volunteered for redundancy. In the light of that information it was aware, or ought to have been aware, that the figures provided to BA included those who opted for voluntary redundancy and therefore included members who were not entitled to vote. It was reasonable to enquire as to which members were leaving BA. Unite didn’t issue instructions to members about not voting if they were leaving BA by the relevant date, despite opportunities to do so. Evidence showed that Unite knew/should have known that its figures were inaccurate and that the balloting process was flawed.”
The corrollary of thism seems to be that had Unite taken reasonable steps it would have been ok for there to be discrepancies.
I don’t know if you have seen an extract of the judgment (unfortunately it was unreported so I have had to rely on an abstract), but I though it might be interesting if you hadn’t to see the court’s reasoning.
I have no idea whether the decision was correct, but I don’t believe there were overt political motivations behind it (possibly covert political bias as a result of class I suppose). It seems that on the law it was a plausible decision, certainly not overtly liberal in its interpretation of the law.
They weren’t ex-employees at the time of the vote. It was assumed that they would be ex-employees at the time of the strike.
If you don’t read it in the way you suggest, it doesn’t include all members of the union. It would simply include people whose future status (not present status) is leaving the company in question.
Ah you caught me not reading the facts.
On your interpretation. I can’t really be bothered to argue the toss. Suffice to say that as a lawyer there interpretation is far from radical – in fact its pretty main stream. Which is really the point isn’t it. The fact is that the judiciary, generally, don’t make up the law to try and fit their political objectives. It tends to be very bad for the career.
When I said main stream I should have said “reasonable prima facie” as a non-employment lawyer.
lets be honest Unions have been begging labour to change the laws but that begging was not very hard, we also know that labour has no interest in doing so, now we have the courts siding with bosses, and a labour government which will be going out of power for a very very long time.
And you know something my council which is labour has been talking about, making it’s IT and it bin collection, private. It’s annoyed that the government is again talking about capping the council tax and thats really annoyed it