“We need to look at changing the rules around industrial action. Strikes cause misery. They prevent ordinary people going about their daily lives, whether it’s getting to work or getting the kids to school. Strikes also cost the economy dearly and undermine our efforts to help rebuild the economy. That is why we believe the bar needs to be raised, so strike action is not possible unless 40 per cent of the workforce has actively voted to withdraw its labour.”
That’s the view of John Cridland, deputy director general of the CBI.
In a world where hundreds of thousands of jobs are to be lost in the public sector and public services are threatened with cuts of up to 40 per cent, industrial action is all but inevitable. The political, social and economic consequences of this will be explosive and could transform British politics for a generation. The question is whether, in its current form, British trade union law is equipped to deal with the scale of this upheaval. If it is not, what shape should any reform take?
The CBI’s answer to this question is clear. The Government should legislate to make it harder for unions to organise strikes.
Failure to do so will leave all us facing unnecessary misery and inconvenience, and will damage the economy.
John Cridland should not be so concerned. After 13 years of New Labour, this country’s trade union laws remain as Tony Blair described them in 1997: “the most restrictive on trade unions in the Western world”.
Since 1906, British legislation has provided for limited immunities for those inducing industrial action from liability for its economic consequences. Yet these immunities have been narrowed to the point where Britain is perceived by international human rights agencies, notably the International Labour Organisation and the Social Rights Committee of the Council of Europe, as failing to comply with even minimum international standards.
As recent high profile legal cases have demonstrated, the law on strike ballots and notices is so procedurally onerous and interim injunctions so readily granted by the courts that they can defeat genuine worker support for proposed action.
It is these “detailed and legalistic”, in the words of Lord Justice Kay, balloting and notice requirements that have been used to great effect by employers to prevent strikes through the granting of temporary injunctions. The most notorious recent injunction was that obtained by BA against Unite in the High Court on the basis that the union had failed to give notice by mobile text message (in addition to notice boards and the internet) that 11 out of 9,282 ballot papers had been spoilt.
As Lord Justice Judge said in the Court of Appeal ruling which overturned the BA injunction, it is ironic that legislation designed to protect workers by providing them with information about the result of a ballot is now being used by employers who are fully aware of the results of that ballot.
The BA case represents a judicial approach that puts narrow technicality above the democratic and human right of workers to combine and withdraw their labour as a last resort. But both this approach and the CBI’s call for further restrictions are increasingly at odds with the Convention on Human Rights, by which Britain is bound, and by the consequences of the Lisbon Treaty.
The recent landmark decision of the European Court of Human Rights in the case of Demir and Baykara versus Turkey has set down two fundamental principles on collective action. First, the right to collective bargaining is “an essential element” of the freedom of association in Article 11 of the Convention on Human Rights. Second, this “essential” right must be interpreted in line with international labour standards, notably ILO and European Social Charter jurisprudence. While domestic systems may place restrictions on collective action, such systems must be consistent with the requirements of the ILO and the ESC.
The ILO has always held that the right to strike is fundamental (as a result of Convention 87). Article Six of the ESC guarantees the right to strike, as does the European Union’s Charter of Fundamental Rights. Post Lisbon, the Charter of Fundamental Rights is legally binding not only on unions and their institutions, but also on member states as regards the implementing of EU law. Crucially, Article Six of the Treaty on European Union has been amended to provide that the Convention on Human Rights forms part of the general principles of EU law.
The effect on Britain as a signatory to the Convention and a member of the EU will be profound. Workers will be able to argue that a right to strike is guaranteed by Article 11 of the Convention. British trade union law, which currently falls foul of ILO and ESC requirements, will need to be revisited – either by Parliament or the courts. This will include the requirement on unions to give notice to employers of their intention to hold a strike ballot, the prohibition on secondary action (sympathy strikes) and the limited protection given to workers against dismissal following lawful industrial action.
No one wants a return to a “winter of discontent”. However, at the very least, trade union law should meet basic international standards. The political narrative should not be allowed to shift so that those public sector workers and unions who pursue industrial action as a last resort are made the scapegoat for the forthcoming years of deficit cutting. The cause for our current economic misery was not the activities of militant public sector workers and unions agitating for industrial unrest, but the colossal failure of the banking system. Nor should we forget that further economic pain is all but guaranteed by the coalition Government’s unseemly rush to austerity and the depth and speed of the cuts to the public sector.
The CBI’s approach places economics and competitiveness over fundamental human rights and lies firmly within the neo-liberal consensus of the past 20 years. The state of our trade union law merely reflects the triumph of this consensus over union democracy and international law. Surely it is time now for social democratic politicians in this country to articulate a different approach to industrial relations. This approach must put human rights ahead of profits and make the case that collective action and the right to strike are essential to our democracy.
It would not be politically or legally difficult to remove the more onerous restrictive reporting and balloting obligations. Collective action and the right to strike as a last resort are not barriers to economic growth. They represent fundamental safeguards against the race to the bottom in employment conditions in the globalised free market.
Even Margaret Thatcher’s Government recognised this. A 1981 Government green paper stated: “The freedom of employees to combine and to withdraw their labour is their fundamental safeguard against the inherent imbalance of power between the employer and the individual employee. This freedom has to be accepted as the hallmark of a free society.”
So lets see Labour’s leadership contenders make the case for a new type of industrial relations that once again seeks to uphold this fundamental safeguard. As the Demir case makes clear, that’s going to happen anyway. The recent past is a sharp reminder of the consequences of Labour being on the wrong side of international law. Preserving trade union freedom and guaranteeing the right to strike represents more than just “getting to work or getting the kids to school”. It is a “hallmark” of what makes us free.
