The anti-union laws are being extended by default and we are moving towards a situation where it will be virtually impossible to organise legal strikes.
At the beginning of the month the Court of Appeal ruled in a case that has significant consequences for every worker.
Judges ruled in favour of Metrobus, which had secured a legal injunction against a planned strike by Unite members in October last year. The union called off the strike in response.
This ruling had a knock-on effect on another group of workers last week.
Unite union officials called off a planned strike by bus drivers at First in South Yorkshire—not because there was any challenge to their own ballot but purely on the basis of this Court of Appeal ruling.
The judgement in favour of the employer can be referred to by judges in future cases. It sets a precedent that will make it more difficult for workers to take legal strike action.
One of the reasons the company won the injunction was because a judge found that the union had not detailed with sufficient precision the occupational grades of those taking action.
The same manoeuvre has recently been used against postal and tube workers.
The anti-union laws were designed to hamper unions’ ability to resist, and to give union leaders a way of persuading their members not to strike.
All these laws should go. But instead of being repealed, they are being interpreted ever more harshly. The laws detail a thicket of obstacles that the unions have to navigate to avoid being sued during a strike.
One clause says that unions have to give the employers a list of workers who are going on strike and their workplaces.
Unions must also sort workers into their occupational categories. Such requirements are ideal for employers who want to use technicalities to halt strikes.
The Metrobus appeal case shows how these laws work.
The union argued, “Unite takes the view that the grounds on which the judge decided to grant the injunction constitute a serious impediment on its ability and that of any other trade union to call a strike.”
In response Lord Justice Maurice Kay wrote, “The right to strike has never been much more than a slogan or legal metaphor.”
There were two main elements to the court’s decision.
Firstly, although the strike ballot had closed at noon on 1 September, Unite informed Metrobus bosses of the outcome almost 48 hours later.
In part this was due to a mix-up between Unite and Electoral Reform Services involving a missing fax.
But the court ruled that the time taken to inform the employer was too long.
The judgement reads, “Sec 231 imposes on the union a free-standing obligation to notify the employer of the outcome of the ballot as soon as reasonably practicable; that obligation must be fulfilled, regardless of whether strike action is or is not voted for.”
And importantly, “Notice of strike action can only ever come after notice of the ballot result to the employer.”
Secondly, the court ruled that the union did not properly explain how it arrived at its membership figures for how many bus drivers would be called out from which depots.
The three Court of Appeal judges disagreed about how the legislation applied, but they still ruled that insufficient explanation was given.
The judgement read, “Information about the numbers of employees balloted—what categories they fall into in terms of what job they do, where they work, etc, for union members who may or may not pay their union dues by deduction from salary (whereby the employer can know they are union members) – is provided to the employer, and such information must also include full explanations of how such figures are reached. The figures must also be accurate.”
In effect, legal ballots become almost impossible to organise. Working out all the grades of construction workers or local government workers, for instance, would be completely unfeasible.
The only point on which the majority in the court disagreed with the original injunction was over the importance of a typing error—766 instead of 776. It ruled that this was trivial.
Furthermore, the court also ruled that the anti-union laws are compatible with the article 11 of the European Convention on Human Rights on the right to join a trade union.
When Labour was elected in 1997 it had a policy of repealing the anti-union laws. But 12 years later it is sitting on its hands while the laws are applied ever more stringently against workers.
The anti-union laws fly in the face of the democratic decisions of thousands of workers. Unless the laws are challenged, no union could survive the level of detailed scrutiny now imposed on ballots.
But a recent spate of unofficial walkouts and occupations has shown that anti-union laws are powerless if workers defy them.
The only way to win is for unions to refuse to back down in the face of injunctions and threats and strike regardless.
The right to withdraw labour by striking is the most fundamental power that workers have. We must fight urgently to defend that right.