Workers have always organised to defend their interests, governments have always used the law to oppose them, but struggle does not stop…
Since the dawn of the industrial revolution in Britain workers have combined together to advance and defend their interests. Governments have sought to defend and advance the interests of capital by criminalising and restricting the ability of workers to do so, sometimes using the law and sometimes more subtle methods.
At first individuals were targeted for prosecution. This was successful in generating fear, but it also created unwelcome martyrs for the cause. The focus then switched to the finances of trade unions, making them liable for damages.
And now unions are forced to spend large sums on measures such as postal ballots. And ultimately they are still exposed to the threat of courts ordering seizure of funds or making punitive damages awards against them.
Yet at no time has legislation been completely successful in preventing workers from taking industrial action. Strikes took place even when they were illegal (see Historic Notes 1942: Betteshanger Colliery about a strike during World War Two).
Unions and workers have also been ingenious in finding ways around legislation. And sometimes governments, employers, police and courts have been reluctant to enforce the law in the face of public opinion.
But workers and their unions now face further legal curbs on their ability to take industrial action. The government is rushing the draconian Strikes (Minimum Service Levels) Bill through parliament in response to the current wave of public service and public transport strikes.
This proposed legislation is so wide in its scope that it will give ministers the power to write regulations for any services within six sectors (health, education, fire and rescue, border force, nuclear decommissioning and transport) forcing workers to work during strike action.
Employers would then issue work notices naming who has to work, and what they must do – listing who could exercise their “right to strike” and who would be expected to cross picket lines and go to work regardless. This pointedly ignores the steps that unions already take to ensure life-and-limb cover is provided during industrial action.
Failure to comply with those notices would put workers at risk of dismissal, and open unions up to huge fines. Workers would be sacked for taking strike action that has been agreed in a democratic ballot.
In complex organisations, management would have a huge task to work out how to implement work notices. It is not surprising that employers are very unenthusiastic about the Bill.
‘Legislation has never completely prevented workers from taking action…’
The TUC believes that forcing unions to send their members across picket lines is probably against international law. Government claims that the proposed legislation will bring Britain into line with other European countries are refuted by the European Trade Union Confederation, which has stated that Britain already has among the most draconian restrictions on the right to strike in Europe.
In addition to the Strikes (Minimum Service Levels) Bill, the Government is also examining how it can strengthen the provisions of the Trade Union Act 2016, which outlawed any strike where under 50 per cent of those balloted cast a vote, no matter how large a majority voted for striking.
The proposed new law would require at least 40 per cent of those eligible to vote in favour of the proposed industrial action for it to be lawful. This would apply to “important” public services such as rail workers and NHS staff. [But see correction below.]
In recent ballots where a clear majority has voted in favour of action (and with at least a 50 per cent turnout), in some cases fewer than 40 per cent of those eligible have voted in favour. So the new law would apply.
Unions often respond to not meeting legal thresholds by balloting again and often the vote has been achieved. But this means considerable costs and delay in pursuing action.
For any union it’s desirable to ensure that calls for industrial action are supported widely by union members. In the past some strikes have been called after low ballot turnouts, and poor organising. Too often such actions have failed to achieve anything due to lack of support.
But unions are being forced by law to use expensive postal balloting carried out by an independent organisation for strike ballots, a measure designed to eat into union funds. It is notoriously difficult to get large numbers of union members to vote in postal ballots and this is made worse when – as happened recently – ballots are being conducted to tight time frames during a postal strike.
Not only does the law now impose onerous conditions on balloting, but the 2016 Act sets a six month time limit on mandates for industrial action. Many of the unions now engaged in protracted industrial disputes will have to ballot members again.
When the law permitted ballots to be carried out in workplaces, turnout was much higher. As an alternative to workplace ballots, unions have called on governments to allow ballots to be carried out by much cheaper electronic means. This has been refused on the spurious grounds of voting security, and yet electronic voting is known to produce much greater levels of participation.
Government will do its utmost to stop workers challenging the interests of capitalism by any means that it feels it can get away with.
The time has come for workers to question the existence of such laws and not just live with restrictions on class activity.
• Correction: this article, which appeared in the printed edition as above, was inaccurate on one point.
“Important” public service workers already face a legal requirement that at least 40 per cent of those eligible must vote in favour of the action for it to be lawful. The proposal from Liz Truss during her short time as prime minister was to raise that to 50 per cent – whether Sunak keeps to that is not yet known.
• Related article: Anti-union law: a brief history