Playing the trump card

Using the courts against strike action

THE RMT signal workers’ strike due in early April was quashed by the high court on the most spurious grounds. It is the latest in a long line of judgments that have come down against the trade unions and in favour of the employers. Gregor Gall, professor of industrial relations at Hertfordshire University, pointed out in The Guardian that, of the 36 applications for injunctions to the high court in the last five years, all bar seven were against planned strikes in transport, the prison service or Post Office.

The class bias of the judges is well known – almost without exception, high court judges come from an upper-class background. Nonetheless, the ruling against the British Airways cabin crew strike planned over Christmas was unprecedented. It stated that the ballot was irregular and that the effects of the planned strikes were "disproportionate". In other words, by withdrawing their labour and bringing the business to a halt, they would hurt the bosses too much. They then repeated this judgment against the signal workers. The ruling emanated from a previous European court decision which backed the employer’s right to shift jobs to other EU countries without the commensurate rates of pay or guarantees of working conditions existing in the new country. The European court ruled that it is illegal for unions to attempt to stop this by taking industrial action.

On this basis, only those strikes which are ineffective would be lawful. Gregor Gall commented that the judgment on disproportionate effects has no basis in law: "Not even the Tory framers of the laws [in 1992] were so bold as to try including this criterion", he said. The ruling that the RMT signal workers’ ballot was irregular led to the outrageous allegation of "ballot rigging" by John Humphries, a host on BBC Radio 4’s Today programme, when he interviewed Bob Crow, RMT general secretary.

Network Rail had deliberately misled the high court. When the union balloted its members it was legally obliged to hand the whole process over to a government appointed returning officer – in this case, the electoral reform society. In turn, it sent the ballot papers to the individual home addresses of RMT signal workers. Yet the judge, Mrs Justice Sharp, agreed with Network Rail that the union had not given the correct information to the employer of who they were balloting. But keeping this information up to date is practically impossible. As Bob Crow said: "It’s like painting the Forth Bridge" – once you finish you have to start all over again.

The union is obliged to inform the employer of "the number, the grade and location of the members being balloted". As Gall says on his blog: "It is not signal boxes, locations or workplaces that are being balloted, it is the individual members at home through a postal ballot – because workplace ballots are no longer permitted. Thus, those 26 workplaces [which Network Rail said no longer existed, so the union gave the ‘wrong’ information] could not have been excluded from the vote". John McDonnell MP said in The Guardian that the employers had consistently blocked giving the unions up-to-date information.

RMT members working for Network Rail are not on the ‘check-off’ system – where union subs are stopped out of wages by the employers and sent on to the union – but are on direct debit through bank accounts. With check-off, the union has some idea of the workplaces because, generally, they are included on the computer records sent them by the employer. Many employers have abandoned check-off, often as part of attempts to intimidate workers and disrupt workplace union organisation. No doubt this has been the case with Network Rail after 20 years of privatisation and numerous changes of ownership of the network.

This refusal by the employers to keep the union up to date about workplace and job changes was ignored by the high court in the signal workers’ and cabin crew cases. Therefore, even where the law requires that the unions are solely responsible for record keeping, although that has no bearing on the actual ballot procedure and the employers are consciously blocking the unions from carrying this out, the courts still come down against the unions. No wonder the Financial Times calls this requirement a "trump card" for the bosses. It is likely to be used more and more in the future.

Marxists do not take lightly the need for unions to defy anti-working class laws. The unions are the historical expression of the working class coming together in a collective defence of their interests in the workplace and beyond. Defiance of the law risks the threat of union funds being sequestered by the state. The unions have been built up over many decades by the sacrifices of previous generations of workers. The present generation will not throw them away recklessly.

No doubt, the more politically conscious elements of the ruling class can see that, eventually, the law will become unworkable if it is used exclusively to prop up the interests of the bosses and the courts come to be held in complete contempt by working people. Nevertheless, the situation calls for a much more active attitude by the trade union movement. The Trades Union Congress (TUC) has acted more as a go-between for the bosses and unions – such as in the postal workers’ dispute before Christmas and, more recently, with the cabin crew in the Unite union. The TUC’s role should be to promote the unions’ case, not seek some halfway house. It might be a long wait, however, before TUC leader, Brendan Barber, and co move into action, even on the blatant use of the law to stop workers defending themselves through their unions.

Significantly, the most effective action by workers in recent years has been where the law was sidelined. In 2009, a number of industrial disputes broke out, starting with the magnificent struggle of the Lindsey oil refinery construction engineers in January of that year. Attempts by the employer to import labour from EU states on lower wages and without the protection of trade union negotiated, nationally agreed terms and conditions, led to a strike in large building sites across the country. The employers were using EU laws that said they could do this, and that it would be illegal for workers to strike in response. This was repeated later as the employers came back a second time, only to be met with widespread unofficial action that pushed them back.

Visteon workers were also forced to take unofficial action in defence of their redundancy rights when the bosses shut the plants in London, Basildon and Belfast at a few minutes’ notice. And Linamar workers in Swansea walked off their jobs in defence of their sacked convenor, Socialist Party member, Rob Williams. In any of these disputes the employers could have gone to the high court for an injunction against the unions involved. Why didn’t they? Because they knew that this would have inflamed the situation and spread the action. In each of these cases it was spontaneous action from below that rapidly won victory. The unions had not called the workers out.

The prison officers’ union (POA), led by Socialist Party member, Brian Caton, has for two successive TUC conferences called on the TUC to organise national strike action against the anti-union laws. The POA has every right to demand this. It has been subjected to the most draconian anti-union legislation of any union. Its very right to strike has been outlawed by successive Tory and New Labour governments. It demands that the trade union movement opposes this outlawing of their democratic rights.

However, these harsh restrictions did not stop the POA organising a national walkout across 82 prisons in 2007 against attacks on their conditions. POA members have demonstrated how to take action – like the Lindsey, Visteon and Linamar workers – and, in the process, defy anti-union legislation. The law might frighten the TUC bureaucracy. But what was the government going to do about the POA, lock up its leaders?

In the 1970s, the Tory government under Ted Heath introduced restrictive laws aimed at the trade unions’ right to strike. (An earlier Labour government had tried but was defeated by union opposition.) Although the unions were much stronger than they are today, there are important lessons to be drawn.

One aspect of the legislation was the creation of the industrial relations court. This court fined the engineering union £50,000 for refusing to call off a national strike. The union ignored the ruling. Just as the judges were about to take further action, threatening to imprison union leaders, a group of city businessmen anonymously paid the fine. This was not a sudden act of altruism. It was the recognition that things were getting out of control and there could have been a national strike of all the unions if the courts had taken further action.

Later, the same court ordered the imprisonment, in Pentonville jail, of rank-and-file London dock leaders for refusing to call off pickets against the growing threat of containerisation. When an increasing wave of unofficial strikes began across the country, the TUC was forced to announce plans for the first general strike since 1926. The bosses were forced to retreat again and the ‘official solicitor’ – an unknown legal figure up to then – stepped in and released the dock leaders. In effect, that was the end of the industrial relations court. It only remained for the incoming Labour government of 1974 to remove the anti-trade union laws from the statute book for the seal to be put on that effort to use the law to stop strikes.

It is a different period now and it is unlikely that exactly the same developments would take place. It is possible, for example, that the new wave of cuts taking place against the backdrop of the economic crisis will push more and more workers into collision with the anti-union laws as they are compelled to take unofficial action, rendering the anti-union laws ineffective once again.

That will depend on a number of elements, however. With one or two exceptions, the union leaders will do their best to insulate themselves against any pressure from the rank and file. UNISON leaders are conducting a purge in their union against left activists as they prepare to accept the logic of the economic crisis. Whichever party is in power, union leaderships will do their best to control any opposition to the massive programme of cuts pending in the public sector. But this does not mean that they will get away with it. Unofficial movements are bound to happen at local level, in individual workplaces and companies. The question will be posed: can these localised struggles be pulled together into a broad movement that will make redundant the anti-union laws?

In other words, it is unlikely that a movement from the top will take place against the anti-union laws. It is more likely that it will be as a result of workers moving into struggle on the bread-and-butter issues of jobs, wages and conditions. In that case, an organisation like the National Shop Stewards Network can play a decisive role in bringing these struggles together and giving them the necessary organisational form.

Bill Mullins