A right to strike?

Industrial action and the law

Successive British governments boast the most draconian anti-union laws in the western world. These remain firmly in place, notwithstanding the recent Court of Appeal decision in favour of Unite, overturning a High Court injunction granted to British Airways. JIM HORTON reports on the legal shackles which make taking lawful industrial action virtually impossible.

THE ONGOING DISPUTE between the Unite union and British Airways (BA) has again revealed the blatant class bias of Britain’s industrial relations laws which are weighted against workers being able to take effective industrial action. But, as workers face a major assault on their jobs, pay and conditions, can the unions now rely on some recent, seemingly favourable, decisions of the European Court of Human Rights to provide a right to strike? Or will this of necessity have to come through workers pushing aside existing laws where they act as a barrier to their ability to defend their livelihoods?

The primary piece of legislation governing industrial relations in Britain is the Trade Union and Labour Relations (Consolidation) Act 1992 – TULR(C)A. This is a gift to employers, and a minefield for unions. To conduct lawful industrial action, trade unions must give employers at least seven days notice of the intention to hold a ballot of all the members it proposes will participate in the action. Following a successful ballot, another seven days notice must be given of when the industrial action will start. But this understates what are bewilderingly complex balloting and notification procedures.

The law allows employers to sue unions for damages if they can show that industrial action is unlawful. Employers are also entitled to sack workers involved in unlawful or unofficial action. Generally, however, this is not the aim of employers when applying for an injunction. Rather, they seek what is in effect a swift de facto ban on a particular group of workers taking strike action. In claiming injunctive relief, employers only have to show that there is an ‘arguable case’. They do not have to prove they have a winnable case. Claims rarely go to a full hearing. Unions are placed in the position of having to re-ballot, by which time the momentum of the dispute can dissipate. To their credit, Unite’s cabin crew members have persevered in their determination to resist management’s attack on their terms and conditions.

The initial High Court injunction awarded to BA, restraining strike action by Unite, followed a succession of perverse legal decisions against trade unions where injunctions were awarded to the bosses on minor technicalities. In April, Network Rail was granted an injunction against the RMT on the grounds that it had failed to inform Network Rail of the exact location and details of every signal box it had members at. This is despite the fact that ballot papers go to members’ homes and this information would not have altered the actual vote for strike action.

In December 2009, the first ballot of BA cabin crew saw 9,514 voting in favour of taking industrial action, 92.49%, on an 80% turnout. Although it would have made no difference to the massive majority who voted for strike action, the High Court outrageously granted the injunction because Unite had balloted some of its members who were taking voluntary redundancy.

In October 2009, the RMT balloted its members employed by EDF, which supplies power to London Underground. The union provided EDF with full details of the workers to be balloted, but EDF complained that the ballot notice was defective because they could not identify which categories of workers were being balloted by the RMT. In its notice to EDF, the RMT had said it would be balloting engineers/technicians. EDF argued that, although they agreed with the RMT who the engineers were, the category of technicians was inadequate because the company used the term ‘fitters’. Scandalously, EDF won its High Court injunction on this flimsy argument.

In July 2009, Metrobus workers in London called a strike in their long-running campaign to standardise terms for bus workers across different London bus companies. Following a ballot for further industrial action the employer sought injunctive relief. This was granted by the High Court. Firstly, on the grounds that the union had not communicated the ballot result to the employer as soon as is reasonably practicable – it had taken Unite 20 hours. Secondly, because the notice did not detail where the numbers and job descriptions of workers came from. Unite’s appeal was disallowed, notwithstanding a judge commenting that it would have been sufficient for Unite to have explained that ‘this information comes from our central computer’. The failure to place these words on the notice to Metrobus was sufficient grounds to grant an injunction, despite the fact that the employer knew where the information came from and that it made no difference to Metrobus.

Unite’s appeal victory

THE HIGH COURT decision against Unite in May was the second time in six months that BA had used the courts to circumvent and frustrate the strike. An overwhelming majority of cabin crew, 80.6%, voted for strike action. However, out of 9,282 ballots cast, eleven (0.1%) were spoiled. BA was able to persuade the High Court that there was an element of doubt whether news of the eleven spoiled ballot papers had been comprehensively communicated. Yet Unite had put the full result on its website and on workplace notice boards, and handed it out on display stands at its offices. The High Court rejected the ‘de minimis’ argument that this was a trivial matter which did not alter the result. It loyally granted BA the injunction.

Allowing Unite’s appeal against this decision, Lady Justice Smith stated at the Court of Appeal: "It was a fair and open ballot and not to uphold the appeal would mean that the rights of workers to withdraw their labour would be undermined". Even the one judge ruling against Unite had to admit that BA was relying on "a rather dry and technical point of law". Does this ruling represent the beginning of a change in fortunes for trade unions, with employers now placed on the back foot?

Unite’s joint general secretary, Derek Simpson, claimed that the Court of Appeal’s decision struck "at the heart of the argument that minor technicalities can set aside ballots like this one which was overwhelmingly in support and democratically conducted by our members". TUC general secretary, Brendan Barber, described it as an important victory, adding: "I hope it marks a halt to the recent run of arbitrary legal judgements where employers have found it all too easy to get courts to find in their favour and prevent employees from exercising their democratic right to take strike action".

This wishful thinking is not shared by John Hendy, the barrister who represented Unite at the Court of Appeal. Given that the BA case centred on a difference in interpretation of a small section of the law, he warned that it is unlikely to have wider significance. The Court of Appeal ruling was pragmatic, in the sense that the ruling establishment feared that the original High Court decision could bring industrial relations law completely into disrepute and render it unworkable, at a time when the bosses’ need for it is becoming even greater.

The openly anti-union solicitors firm, Bircham Dyson Bell, which acted for Metrobus against Unite, states that, while the BA judgement may have created a slightly chillier climate for employers, little has changed. On its website it boasts: "We have substantial experience and expertise in challenging industrial action, including identifying potential procedural defects in the union’s balloting and notification process".

The struggle for union rights

SINCE 2008 THERE has been an increased readiness by employers to rush to the courts when threatened with strike action. Between 2006 and 2008, 15 injunctions were applied for. In 2009, the figure was eleven. In the first five months of 2010, seven injunctions were granted to employers.

The High Court decision granting BA its injunction (now overturned) reveals how the current laws governing industrial action are rooted in the tortuous liabilities (laws concerning contracts) established in the laissez-faire capitalism of 19th century Britain. BA had sought the injunction to restrain Unite from ‘inducing, procuring or persuading’ employees of BA ‘to break their contracts of employment’. In so doing, it aimed to prevent Unite from ‘interfering’ with the trade and business of BA.

The law’s starting point is that all industrial action is unlawful at the level of common law – that is, traditional legal doctrine based on judicial rulings, as opposed to statute law enacted by parliament. This is on the basis that such action is in breach of a worker’s employment contract, and so organising such action is an inducement to workers to break their contracts.

This allows employers to sue individual organisers of the action and the trade union for damages. Since 1906, statutory law has provided immunities from the common law, but only if the unions can show that the industrial action is in contemplation or furtherance of a trade dispute. However, Margaret Thatcher’s anti-union laws introduced an additional hurdle, the onerous balloting and notification requirements. In the BA case, the eleven spoiled ballot papers were sufficient in this learned judge’s mind to remove the immunities and make the proposed strike unlawful at common law.

From their inception in the 18th century, trade unions had been declared illegal by the capitalist state with work stoppages deemed criminal and combinations of workers a conspiracy. The Combination Acts of 1799 and 1800 were notorious, supplementing the common law banning groups of workers in particular industries. The Masters and Servants Act of 1823 made it unlawful to break the employment contract with the intention of pressurising the employer to improve wages. The Combination Act of 1825 gave unions a bare legality, allowing workers to meet to discuss wages and conditions, but any attempt at industrial action was subject to penal sanction. In 1834, the Tolpuddle martyrs were convicted under the Unlawful Oaths Act of 1797. Even as late as 1867, the Master and Servant Act criminalised ‘neglecting work’ in breach of contract.

Towards the end of the 19th century, with the continued growth of the trade union movement and the limited extension of the franchise to sections of the working class, governments introduced laws removing trade unions and their lawful activities from criminal liability. The Trade Union Act 1871 provided unions with immunity from the civil and criminal consequences of the doctrine of restraint of trade: although in the same year, the less favourable Criminal Law Amendment Act imposed further criminal liabilities and failed to deal with common law criminal conspiracy.

The 1875 Conspiracy and Protection of Property Act, however, was a milestone for the trade union movement. It repealed all previous acts criminalising industrial action and provided immunity from criminal liability for common law conspiracy where a union was acting in furtherance of a trade dispute. It also legalised peaceful picketing. However, at so-called common law, trade unions remained liable for actions in tort, civil wrongs. Common law was, and remains, judge-made law – by a judiciary related by class ties to the employers and hostile to trade unions.

By the late 1880s, with employers adopting an increasingly aggressive stance towards the rapid development of the new unionism of unskilled workers, the judiciary sought to make decisions calculated to circumvent existing statutory protection for unions. In a case in 1893, the tort of inducing a breach of contract was applied to industrial disputes for the first time by the House of Lords. It also held that individuals who organise strike action could be sued by the employer.

Prior to the infamous Taff Vale Railway case of 1901, though, it was legally accepted that, as unincorporated associations, trade unions could not be sued by employers for damages in tort. But in the Taff Vale case the House of Lords held trade unions as organisations liable for losses suffered by an employer in a strike. The Amalgamated Society of Railway Servants, predecessor of the RMT, was ordered to pay £23,000 in damages and £19,000 in legal fees – equivalent to over £2 million today. This threatened to bankrupt the unions out of legal existence. Following the judgement, trade unions could be sued for inducing a breach of, or interfering with, an employment contract, as well as ‘intimidation’ and ‘conspiracy’.

Severe limitations

STATUTORY IMMUNITIES FROM the harsh consequences of the common law were first firmly enacted with the Trade Disputes Act of 1906. This act was passed by a Liberal administration under pressure from an angry and growing trade union movement flexing its political muscle. This was reflected in the burgeoning support for the newly formed Labour Party.

The Trade Disputes Act was significant in that it reversed the Taff Vale decision and gave complete immunity from existing torts to trade union organisations, thus protecting their funds. It also gave union officials immunities from known common-law liabilities providing that the industrial action was in contemplation or furtherance of a trade dispute, the definition of which included action to enforce a ‘closed shop’ and solidarity action.

However, notwithstanding its benefits to trade unions, the 1906 Act did not enshrine a legal right to strike. Rather than abolishing common-law liabilities, the act merely gave union members protection during an industrial dispute. This allowed the bosses, who deplored the victory of ‘rampant collectivism’ and ‘labour union terrorism’, to falsely claim that unions were being placed in a privileged position. This was to haunt the unions in the ensuing decades and underpinned Thatcher’s anti-union propaganda in the 1980s.

What became known as the ‘Golden Formula’ immunities of the Trade Disputes Act 1906 endured, more or less, until Thatcher’s offensive in the 1980s – bar two previous occasions, in 1927 and 1971, when the benefits of the 1906 act were also weakened. Following the defeated general strike of 1926, the Conservative government amended the Trade Disputes Act to make the instigation and organisation of general strikes liable to civil and criminal sanctions. It also made secondary action illegal and outlawed the closed shop in local and public employment. These and other anti-union measures were not repealed until 1945.

On the eve of the second world war, the employers had come to view moderate, constitutional trade unionism as a bulwark against radical alternatives that threatened to challenge managerial prerogatives and the capitalist system. During both world wars, however, legislation restricting industrial action was enacted, but was breached by workers.

Rising union strength

EARLY POST-WAR Labour and Conservative governments discussed whether to ban unofficial strikes – that is, action not sanctioned by the union hierarchy – and impose pre-strike ballots. Both were rejected, out of fear of massive industrial and political conflicts at a time of an emboldened and growing trade union movement. This issue became even more pressing for the bosses by the late 1960s, as union members increasingly took militant action to defend their living conditions at a time of economic decline in Britain.

Under pressure to intervene in industrial relations the then Labour government set up the Donovan Commission in 1965. Economic problems were being blamed on the unions. The bosses were desperate to curtail the actions of militant shop stewards. The commission criticised the fragmentation of collective bargaining and the growth of informal bargaining at a local level between shop stewards and workplace managers. It recommended the integration of shop stewards into the formal structures of the unions and the strengthening of formal central bargaining.

The response of Harold Wilson’s Labour government was to go much further than the Donovan Commission’s recommendations. It proposed restrictions on industrial action, including criminal sanctions on unofficial strikes. The incongruously named In Place of Strife was hastily withdrawn following union opposition.

In 1971, Edward Heath’s Conservative government sought to implement the hated Industrial Relations Act. One aim of this act was to eliminate the unofficial action of militant shop stewards. A National Industrial Relations Court was established which could order ballots and cooling-off periods. Unions were required to register, and all strike action by non-registered unions was unlawful. But most trade unions ignored this requirement. This resulted in a situation where all strike action was unprotected, a position which, even from the point of view of the political establishment, was untenable.

The act was defeated by union mass action and later repealed by the Labour government of 1974, which restored the protection afforded by the 1906 act. However, the judiciary continued to make judgements aimed at undermining statutory protection, particularly in the 1970s and, most notoriously, against the National Union of Mineworkers and its members during the 1984-85 strike.

Thatcher’s offensive

BY 1979, WITH the collapse of the post-war consensus on full employment and the welfare state, Thatcher’s Conservative government had devised a plan to rout the unions, which were seen as the main obstacle to restoring the profitability of British capitalism at the expense of workers.

Learning the lessons of the defeat of Heath’s ill-fated attempt, Thatcher’s 1979 government adopted a piecemeal approach. Step by step, with nine separate pieces of legislation during the 1980s and 1990s, laws were introduced which removed immunities in industrial action, imposed restrictions on the right to picket, and increased legal interference into the internal affairs of trade unions. Industrial action to enforce the closed shop was made unlawful and the definition of a trade dispute was narrowed, including restricting industrial action to disputes between workers and their own employer, thus outlawing solidarity action.

The biggest change introduced by Thatcher is what is now sections 226-235 of the 1992 Act. These removed the blanket immunity of union organisations and the conditional immunity of individual strike organisers from actions in tort unless the complex balloting and notification procedures have been complied with.

With only slight modifications, these provisions remained firmly on the statute book under New Labour. During this period most union leaders restricted themselves to calling for the repeal of the anti-union laws. Generally, however, they were not prepared to fully back workers who unavoidably fell foul of the complex legal requirements, such as the hundreds of low-paid, mainly Asian, women workers at Gate Gourmet at Heathrow airport in August 2005.

In 2007, most unions threw their support behind the Trade Union Rights and Freedoms Bill (TURFB), put forward by left-wing Labour MP, John McDonnell. Its supporters claimed it would strengthen trade union rights with simpler and fairer industrial action balloting and notice procedures. It would also allow solidarity action in some circumstances and reform the use of injunctions by employers.

While it was right for trade unionists to support this bill, it had serious limitations. Failure to comply with its proposed new balloting and notification procedures would still have left unions and their members vulnerable to employer legal action. Under its provisions, for example, the Gate Gourmet workers would still have been viewed as having taken un-balloted and un-notified industrial action, leaving them unprotected against dismissal. Even if the bill had got onto the statute books, workers would have had fewer rights than in 1906. The authors of the bill had decided on moderation in the vain hope that it could gain the support of a majority of Labour MPs. But, such is the pro-big business stance of New Labour, that even a mild shift towards improving workers’ rights was deemed a step too far.

The Con-Dem coalition could introduce new restrictions. Citing increased labour tensions, the employers’ organisation, the Confederation of British Industry, has called for changes to ballot rules so that a strike can only go ahead if a minimum of 40% of the balloted workforce supports it (as well as a simple majority of those voting).

Seeking sanctuary in EU law

WITH THE JUDICIARY set to continue making hostile decisions against workers, and with no prospect of legislative improvements in industrial action rights, trade unions are increasingly looking at the European Convention on Human Rights to assist their challenge against Britain’s anti-union laws. The RMT is taking two cases to the European Court of Human Rights (ECtHR), one in relation to the EDF decision. The other relates to secondary action and RMT members working for rail maintenance companies Jarvis and Hydrex in a dispute over attacks on terms and conditions.

The National Union of Journalists is also considering taking a case to the ECtHR following a ruling in favour of Johnston Press plc. Johnston Press bosses closed the group-wide pension scheme and imposed a pay freeze. Despite a mass of evidence to the contrary, the court accepted the claim of Johnston Press that it did not employ any journalists.

The ECtHR has recently ruled in two Turkish cases that the right to form and join trade unions contained in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms includes the right to collective bargaining and the right to strike. Trade union leaders and employment lawyers sympathetic to the labour movement are hopeful that this will allow them to acquire the right to strike currently absent in UK law, and therefore challenge the adverse decisions of the British courts.

However, this right, as enshrined in European conventions, is not unqualified. In one of the cases, the ECtHR found that the specific ban on civil service trade unionism was too restrictive and could not be justified as ‘a pressing social need’ by the Turkish state. This begs the question: what restrictions could be justified by ‘a pressing social need’? In a capitalist society, where the interests of the banks and big business take preference over the living standards of millions of workers, ultimately, British and European courts will always decide that the pressing needs of the former should determine the trade union rights of the latter.

Indeed, in December 2007, the other top court in Europe, the European Court of Justice (ECJ), decided in the Viking case that the rights of workers to take industrial action are subordinate to the economic rights of business under Article 43 of the EU treaty. If industrial action takes place in breach of Article 43, the employer can sue the union even where the union has complied with domestic law. This was confirmed by the ECJ one week later in the Laval case.

These decisions have already impacted on British unions. In 2008, BA threatened BALPA (the pilots’ union), with an injunction and unlimited damages if it called for any industrial action over feared job losses resulting from BA’s proposal to launch a wholly-owned subsidiary airline operating from Paris. BA did not assert that BALPA had failed to comply with domestic law. Instead, it alleged that any strike would be unlawful by virtue of Viking and Laval. BALPA stepped back from the brink so the issue was never tested.

Two further ECJ rulings, Ruffert and Luxemburg, relate to the Posted Workers’ Directive (PWD). This directive states that workers posted from one EU member state to another are entitled to the minimum terms and conditions for pay and working time, as laid down by law or collective agreements that have been declared ‘universally applicable’. Universally applicable is defined as those collective agreements observed by, or generally applicable to, the geographical area and profession or industry concerned, or those which have been agreed by most representative employers and labour organisations at a national level and which are applied throughout the country. This is a high bar to reach.

In the Ruffert and Luxemburg cases, the ECJ decided in favour of the employer and ruled strike action unlawful. In the former, the ECJ ruled that a Polish subcontractor could not be required by the law of Lower Saxony to pay its workers posted from Poland the higher rate contained in a collective agreement in force at the site where the work was being carried out because the collective agreement was not universally applicable. The posted workers’ directive was an issue in the significant Lindsey oil refinery dispute at the beginning of last year, where workers sidelined both the ECJ decisions and domestic law to take successful industrial action.

Out of proportion

THE ECHR IS the ‘supreme court’ of the Council of Europe, but the ECJ is the ‘supreme court’ of the EU, all the institutions of which are wedded to neo-liberalism. The two courts at the apex of the European legal systems appear to be pulling in two different directions: the ECtHR towards human rights and the ECJ in favour of business rights.

In the current economic climate, however, as capitalist governments across Europe seek to make workers pay for a financial crisis triggered by the billionaires, there can be no doubt that, ultimately, the legal institutions of European capitalism, under the cover of ‘proportionality’, will trample on the human rights of any workers attempting to resist the bosses’ onslaught.

Recent injunctions awarded to the employers show that the British courts have also adopted the approach of proportionality. Could the Con-Dem coalition government amend the 1992 Act to enact proportionality? In November 1996, in its last green paper, Industrial Action and the Trade Unions, the then Conservative government proposed the removal of immunity from industrial action which had disproportionate or excessive effects.

While it is not wrong for the trade union movement to use any legal avenue open to it, including taking cases to the ECtHR, workers should have no illusions that the capitalist courts will allow the idea of a right to strike to manifest itself in successful industrial action against the bosses’ agenda of ensuring that workers pay for the financial crisis. Most strike ballots are not legally challenged by employers, although the experience of recent years shows that, where a major employer is threatened with official industrial action, it will use the courts to prevent strikes going ahead.

In 2009, employers at Lindsey and at the Linamar and Visteon car components factories did not attempt to use the courts even against unofficial industrial action. In the case of the occupation of Visteon factories in Belfast, London, and Basildon, which resulted in a partial victory, the workers had already lost their jobs. In relation to Lindsey and Linamar, where workers won significant victories, it is clear that the employers feared inflaming the situation.

However, the law regards all unofficial industrial action by union members – which is, inevitably, also unlawful – as official, leaving the union open to being sued by the employer unless it repudiates the actions of its members. The problem is that this leaves the workers taking unofficial action hung out to dry.

Of course, socialists are not indifferent to the threat of sequestration of union funds if workers defy anti-union laws. If strike action can be organised effectively within the constraints of the law then it would be irresponsible to risk union funds by needlessly breaking the law.

However, major class battles loom. Workers moving into action are likely to find their attempts to organise official strikes blocked by the courts. Many workers will be confronted with the need to respond spontaneously to management provocation in what will be a more hostile working environment. The need for solidarity action will increasingly come back onto the agenda. In all these situations, the question of defying the anti-union laws could be repeatedly posed. Militant action and, as at the beginning of the 20th century, the need for the trade union movement to have its own mass political voice, will become pressing necessities.