Kill the Bill: the outlook for UK Employment Relations in 2016 #heartunions

Should you be joining the Kill the Bill #heartunions campaign? What is the outlook for The Conservative Government’s Trade Union Legislation and its implications?

Even though strike levels in the UK have fallen to their lowest ever historical levels, the far reaching effects of recent strike action (notably within the public sector) has provided the backcloth to the introduction of a Trade Union Bill by the majority Conservative government elected into office last year.

National strikes by teachers, civil servants, fire fighters, and junior doctors, a threatened national strike on Network Rail, and the complete shutdown of the London Underground network by four unions engaging in strike action, have all served to illustrate the potential disruptive impact of strike action on the wider public.

Hence the government’s attempt to rush into law the most sweeping and radical tightening of the rules on industrial action and trade union organization since the Margaret Thatcher era of the 1980s.

Business leaders welcome the Trade Union Bill

 Corporate Greed (CC) by Christopher Dombers

Many business leaders have welcomed the introduction of new restrictive legislation on trade unions. Thus while Simon Walker, director-general of the Institute of Directors, acknowledges the right to strike is a ‘fundamental part of our democracy’, he has argued

‘that does not mean public sector unions should be able to bring mass disruption to commuters, parents and people who need public services’ (Financial Times, 10 January 2015).

Likewise Katja Hall, Confederation of British Industry (CBI) deputy director-general, has welcomed the reforms to ‘outdated industrial relations laws’ as

‘an important, but fair, step to rebalance the interest of employers, employees, the public and the rights of trade unions’ (Guardian, 15 July 2015).

Kill the Bill: Trades Union Congress (TUC) leaders

By contrast, Trades Union Congress (TUC) leaders have claimed that the UK already has one of the most regulated employment relations systems in the world. And that while the new legislation would leave intact the hypothetical right to strike, it would effectively ban many strikes by the back door. Therefore undermine unions’ collective bargaining ability to redress the inequality in the employment relationship, and make it more difficult for unions to stop employers and government imposing worse pay and working conditions. In response, the TUC and unions have mounted a series of protest demonstrations and rallies.

This post outlines the multi-dimensional and comprehensive set of measures contained in the new legislation (at the time of writing the Bill was at the parliamentary committee stage and may be subject to revision before being passed into law), and then considers the motivation for its introduction, and its implications for UK employment relations generally and the potential nature of the trade union response.

Legislative Measures

Photo (CC) by Roger Blackwell

Ballot thresholds

Unions will have to persuade a minimum of 50 per cent of their members eligible to vote to participate in any strike ballot in order for it to be lawful (currently balloting rules do not require any specific level of participation by union members). In addition, in so-called ‘important public services’ (health services, education of those aged under 17, fire services, transport services, border security, and nuclear decommissioning) there will be a further requirement for at least 40 per cent of eligible members polled to support strike action for it to be lawful (ballots currently require a simple majority to back action). Such measures will have a serious impact on the right of workers to take strike action, especially in the public sector where protest strikes are often large scale and cover a multitude of workplaces and employers.

Significantly, survey findings from a recent study of 146 strike ballots conducted by 26 different unions over the period 1997-2015 shows that while in the past unions have generally been overwhelmingly successful in winning majority ‘yes’ votes in favour of strike action, under the proposed legislation many unions would fail to achieve the proposed 50 per cent participation threshold. And even if they did, they would still often fail to obtain the 40 per cent majority threshold of those eligible to vote.

Although there would be significant variations across different sectors, unions and ballots, many unions will find the legislation will make it very difficult for them to mount legal strikes as a means of challenging employers in national negotiations and in response to government-initiated austerity measures.

Ballot wording and notice of strike action

Unions will be obliged to provide a detailed outline of the ‘nature of the issues’, the specific types of industrial action they are being asked to undertake, and a full timetable for the duration of the dispute, with contravention of these rules enabling an employer to apply for a court injunction to stop a strike. In addition there is a doubling of the minimum notice of strike action, with unions obliged to give 14 days’ notice of strike action rather than the current 7 days) to enable employers to better prepare for action and make legal challenges.

Time Limit on strike mandates

A 4-month time limit on strike mandates from the time of the ballot is to be imposed, requiring re-balloting in a long-running dispute (compared to the situation currently where provided a strike is called within 4 weeks of the ballot it can suspend and restart action within the same dispute on the basis of an original ballot). This is designed to prevent unions undertaking action based on historic strike ballots and to make it harder to engage in rolling strike action.

Agency staff

It will become legal for agency staff to be brought in by employers to replace striking workers (with the 14 days’ notice effectively allowing employers more time to arrange agency workers to cover for strikes). Employers would be permitted to use agency workers indefinitely and there would be no guarantee that workers on strike would ever get their job back, with the consequence that It could undermine the impact and effectiveness of strike action, embitter industrial relations.

Picketing supervisor

It will be an offence for unions not to have a ‘picketing supervisor’ with an official letter of authorisation from their union (and reflective armband) available to be responsible for the conduct of behaviour by union members and others. Failure to comply could result in a court injunction to stop the picket or thousands of pounds damages for the union. It makes unlawful picketing a criminal offence rather than merely a civil one.

Check-off

It would no longer be permitted for union membership subscriptions in the public sector (affecting some 3.8 million members) to be deducted from members’ salaries (with the consent of the workers in question) under an automatic ‘check-off’ arrangement. Such a move is likely to threaten to reduce total union membership, cut the finances of the union and threaten its viability as an organisation as they shift over to a direct debit individual banking arrangement.

‘Facility time’

Regulations requiring public sector employers to publish detailed information on the costs of time-off work (‘facility time’) for union reps employed by them, plus a breakdown of their duties and activities with the aim of encouraging employers to set limits on the proportion of paid working time on trade union activities permitted. This will undermine the effectiveness of workplace union representation of members.

Certification Officer

The Certification Officer, who regulates trade unions, will have an extensive new battery of powers to investigate alleged breaches of statutory provisions (enabling them to have access to records and documents from union office and workplace union branches, as well as access to membership lists) and to impose financial penalties on unions of up to £20,000. Ironically unions themselves could be asked to pay for this monitoring, with the Certification Officer able to impose a levy on unions.

Trade union political funds

Unions will be obliged to make members ‘opt-in’ to payment to their union’s political fund (rather than the current ‘opt-out’), a process that will have to be re-confirmed every five years. It is aimed at reducing unions’ donations to the Labour Party, and restricting unions’ ability to engage in issue-based non-party political campaigns.

Motivation

In some respects the pledge to introduce further restrictive trade union regulation might seem ironical given that strike activity in the UK has for the last 20 years remained at historically low levels, notwithstanding some very large set-piece one-day public sector strikes. While the number of working days lost through strikes was an annual average of 12.9 million in the 1970s and 7.2 million in the 1980s, this has fallen to 782,000 in 2014, and as low as 205,000 in 2015. So, what is it that explains the pressure for legislative change? Arguably there are three factors at play.

• First, there is the Conservatives’ ideological agenda of seeking to utilise austerity and the government’s neoliberal offensive as a means to impose even further restrictions on a relatively weak and defensive trade union movement so as to cement that weakness.
• Second, there is the concentrated location of many of the strikes that do still take place, namely in so-called ‘important public services’, and the nature of these strikes, which have tended to be relatively large and with immediate and direct effect on essential services and the public, closing down schools, disrupting the fire service and health service, and paralysing the railway and London tube networks.
• Third, notwithstanding historically low levels of strike activity, it would appear the Conservatives’ perceived ‘problem’ is less one that exists now than what is feared in the future. With an economic and political imperative of reducing the public deficit and therefore proceeding with even deeper spending cuts than previously, the government’s legislation appears to have been principally designed to try to make it much harder for unions to stop employers cutting back more jobs, reducing pensions, freezing pay, and creating more flexible working practices. As Dave Ward, general secretary of the Communication Workers Union, has said:

‘This is a Tory government that is planning to undermine the incomes and conditions of working people whilst at the same time cynically sabotaging the very means they have to speak out in protest’ (Express and Star, 27 May 2015).

Employment Relations Implications and Union Responses

What are the employment relations’ implications of the new legislation and how will trade unions respond? Jeremy Corbyn’s election as Labour Party leader has undoubtedly changed the political landscape and opened up the possibilities of a new industrial and political alliance of opposition to the legislation by the trade unions alongside the Labour Party. While Corbyn has denounced the bill, calling it an attempt to ‘undermine even the International Labour Organisation conventions and shackle democratic unions’, Labour’s shadow chancellor, John McDonnell, at a Trade Union Co-ordinating Group meeting (13 October 2015) declared:

‘It’s not often you get a shadow chancellor who has also been a flying picket. I give you this commitment all the way through. Whether it’s in Parliament or on the picket line, I will be with you and so will the Labour Party’.

Such national Labour Party opposition to the legislation can give the trade union movement a huge fillip, and raises the possibility of extra-parliamentary campaigning and strike action combining with parliamentary and inner-party struggle to mount resistance while campaigning for the return of a Labour government to repeal the legislation in 2020. In the process, it has already led to the Fire Brigades Union re-affiliating to the Labour Party, with the prospect of other unions such as the NUT teachers and RMT rail workers doing likewise.

Meanwhile, it should be noted that, although the Bill represents a massive attack on the trade unions, it does not make union resistance, including strikes, completely impossible. Clearly, union laws are only effective if unions obey them, and mass industrial action and unions defying the laws could potentially make them unworkable. For example, while the Conservative government’s 1971 Industrial Relations Act, which also introduced a comprehensive set of restrictive measures, was not stopped from being put on the statue book despite huge protest campaigns, the law was effectively made inoperable. When five London dockers were jailed for refusing to handle work previously done by striking workers as part of their campaign against job loss, there was a national docks strike and widespread unofficial action in support by other workers across the country which forced the TUC to call a one-day general strike, and as a result the legislation fell into disrepute and soon repealed (Darlington and Lyddon, 2001).

https://www.youtube.com/watch?v=PpqIXfqnmhc

By contrast, Margaret Thatcher’s anti-union legislation, which involved six separate pieces of legislation was introduced against the backcloth of union defeats by civil servants, steelworkers, printers and the miners, defeats which seriously sapped the confidence of a generation of union activists. This included the need for a secret ballot before taking strike action, making strike action in support of other workers illegal, restricting the number of pickets to six, and giving employers the right to obtain injunctions against unions and sue them for damages.

It led to a ‘new realism’ and social partnership of the subsequent period, which led to a massive slump in union membership and strike activity, a retreat that was not halted under the New Labour government of 1987-2010 or coalition government of 2010-2015. In 1979 when Thatcher became prime minister there were some 13 million trade union members compared to 6.4 million today, and the proportion of workers covered by collective agreements was 82 per cent compared to about 27.5 per cent today as reported by the Department for Business Innovation and Skills. So, it is against this background that today’s Conservative government are seeking once again to restrict union rights. But there are some reasons to suggest the path ahead may be full of unexpected difficulties.

What are the differences of the new legislation from its Thatcherite predecessors?

While strike levels are low there may be less of a feel of recent defeat among union members than previously in the 1980s, and the case for moderation and social partnership in an era of relentless austerity is less convincing. Corbyn’s election, and last year’s success of the Scottish National Party, shows a significant current of ideological and organisation opposition to austerity. In addition, the nature of the new legislation differs from its Thatcherite predecessors in two ways;

First, unlike the ‘salami tactics’ of Thatcher, taking unions on one-by-one and introducing anti-union legislation in six different stages, the Trade Union Bill has placed everything in the one basket, attacking many different facets of trade union activity and organisation, and which is more likely to be resisted as a result and in a fashion which leads to an all-encompassing and political defiance of the government.

Second, previous trade union laws have been targeted primarily at the trade union leaders, with a view to them policing their members into line under the threat of fines, sequestration, etc. But by contrast the Trade Union Bill takes aim to some degree at least at rank-and-file activists, attacking workplace/branch union representation and picketing activity. But this runs the risk of opening up opportunities for resistance at a local level, one step removed from the union officials, and may result in union members being more confident to defy the law.

Although the 2015 TUC congress offered qualified support for ‘generalised strike action’ against the Trade Union Bill, Len McCluskey, general secretary of Unite, has said unions might defy the new laws, and Unite’s rulebook has been changed to enable it to support strikes by their members whether they are legal or not, it remains to be seen whether such militant rhetoric is matched by action in practice.

In a context in which strike action which lacks the support of a legal ballot would leave the unions exposed to injunctions, damages, claims and even action for contempt of court, it seems unlikely that union leaders will openly defy the law – unless they are subject to enormous pressure from their members from below. Nonetheless, the left-wing Trade Union Coordinating Group of unions, including the BFAWU bakers, NUT teachers, PCS civil servants, RMT rail workers, and NUJ journalists, could provide a minority pole of attraction in taking the initiative in calling for militant action.

Moreover, past experience shows that when a strong national lead is given by union leaders from above, workers are prepared to respond en masse, as with huge one-day public sector strikes in 2011 and 2014, and important local disputes in 2015 at the National Gallery and School of Oriental and African Studies (SOAS) in London, Bridgewater postal office in Somerset, and elsewhere, have shown a willingness to fight amongst a significant minority of workers and a high level of solidarity activity. In this context, the call by the PCS civil servants general secretary, Mark Serwotka, and supported by leaders of other left-wing unions, for unions to commit themselves to potentially mobilizing tens of thousands of people on strike pickets in solidarity and in defiance of the laws, if the government attempt to use agency workers to break strikes, could be portentous.

Strategic balloting ahead?

Meanwhile, no doubt unions will become more consciously strategic, by only balloting those groups of workers who they can be confident would attain a 50 per cent participation threshold and 40 per cent majority threshold. This might mean identifying particularly strategic groups within a national bargaining unit (grades or workplaces) whose action (potentially striking for a longer duration in order to create the same amount of leverage as a national strike) could then be supported financially by other members and sections.

The case for intensive or prolonged action

Paradoxically, where unions succeed in attaining the new thresholds, it may make it harder for employers to resolve/defeat strikes, because it could lift union members’ expectations, make union negotiating positions stronger, produce less willingness to call strikes off and settle swiftly, and make the price of an eventual settlement higher. Ironically, although the requirement to notify employers 14 rather than 7 days before strike action is a measure intended to help employers prepared to withstand it, it could also strengthen the case for intensive or prolonged action rather than relying on the disruption of a few hours or days of action.

Likewise, although the limit on strike action to 4 months is intended to obstruct long-running disputes, such as NUT teachers’ strikes, it is also likely to strengthen the case for strong action and a rapid escalation early in a dispute.

Reliance on ‘leverage campaigns’ and ‘citizen bargaining’

Another likely prospect is an increased tactical reliance by unions on so-called ‘leverage campaigns’ and ‘citizen bargaining’ – whereby unions use demonstrations, protests, boycotts, and social media campaigns to open up new lines of attack on the employers and senior management, with the aim of getting shareholders, customers, suppliers and local communities to put pressure on the employers to back union demands.

In the United States, community campaigns have been used to help win improvements in pay and conditions in different industries, forcing companies such as Walmart and MacDonald’s to offer pay increases after customer and public protests outside stores. Likewise, in the UK staff at the Ritzy cinema in Brixton, south London, fought off redundancies and won the living wage in 2014 after the threat of a boycott by cinemagoers.

In the face of the tightening of the rules on industrial action, such campaigns are likely to become even more a ‘weapon of choice’ for the unions, albeit their limitations compared to the alternative mechanisms of collective bargaining and the threat/use of strike action within the workplace is also likely to be stark.

Increase in unofficial and wildcat strike action

It is possible that, against the backcloth of a new wave of spending cuts affecting pensions, jobs, pay, and working conditions, some groups of workers coming into collision with the legal liabilities of organising strike ballots will take unofficial and wildcat strike action, thereby undermining the legislation. As the Financial Times (17 May 2015) has commented:

‘The government should be wary of making it so hard to call an official strike that employees feel justified in taking unofficial action’,

notwithstanding the potentially severe legal penalties against unions which do not repudiate unofficial action and against individuals taking unofficial action.

The most obvious routes to unofficial action at either local or national level would be where workers achieve a simple majority ballot vote but fail marginally to meet the new thresholds, when their union refuses to organise a ballot for fear of not meeting the thresholds, or when they walk out on strike without waiting for their union to organise a ballot because of the immediacy of the issue (such as discipline or dismissal).

On the one hand, the initiative could either come from grassroots members in so-called ‘wildcat’ action (‘unofficial unofficial’). But even though the union might officially repudiate such unofficial action, some union officials could offer informal ‘nod and wink’ encouragement and support (‘official unofficial’) as occurred with engineering construction workers’ strikes in 2009. Either way, such unofficial action would raise the possibility of broader (intra and inter) union solidarity for those groups of workers who found themselves outside the law. In other words, far from ‘improving’ industrial relations as the government have claimed, the legislation might create a more bitter and destabilising state of affairs, with unofficial strike action likely to be more problematic for employers, as well as trade union leaders, to resolve.

Kill the Bill campaign #heartunions

The Kill the Bill campaign film is a summary of the Trade Union Bill produced by the Institute of Employment Rights. In this film Professor Keith Ewing and John Hendy QC talk about their views and implications of the Trade Union Reform Bill.

Finally, in campaigning against the Bill the unions have the potential to make their organisations seem worth defending – not merely in terms of the right to organise, represent, and bargain collectively for members, and the right to strike – by focusing on mobilising workers to take action in defence of pay, jobs and conditions, thereby encouraging a fighting unionism that demonstrates its relevance and value to workers and what is at stake in resisting the anti-union legislation.

At the same time they can connect their opposition to the legislation (despite the current low level of industrial resistance in the workplace) with a wider social movement defence of public services and communities and in political opposition to the government’s austerity agenda generally.

Do you have a view on the Trade Union Bill?

8‑14 Feb 2016 is the heartunions week

Please share your views below.