Ruwan Subasinghe, a lawyer at the International Transport Workers’ Federation, on the background to the nation’s trade union laws.
At a time when broadsheet and red-top newspaper commentators are warning us of the ‘nightmare of union power’, the last thing you would expect to find in the papers is an item on John McDonnell MP’s Private Members’ Bill, which if passed will prevent employers from using minor technicalities to overrule democratic industrial action ballots.
That said, I would not be surprised to see the following headline make the cover of the Daily Express:
‘Labour MP proposes new law to make it easier to go on strike’
The Lawful Industrial Action (Minor Errors) Bill is but one of the measures being taken by trade unions and their supporters to highlight the ever increasing attacks on industrial democracy. The RMT has lodged papers with the European Court of Human Rights arguing that its ability to organise industrial action is being restricted by UK law in violation of Article 11 of the Convention. Unite and the NUJ have announced that they will be following suit.
As the law stands, unions have to provide employers with notice of ballots and industrial action to a sometimes impossible level of accuracy. They have to (among other things) provide exact numbers, workplaces, job titles and categories of those members to be balloted.
While these obligations might not sound too onerous at first, it should not be forgotten that contracting out and outsourcing of work has made it very difficult for unions to maintain updated membership books. There are also various other duties placed on unions after a ballot has been conducted.
While the law permits unions to make small ‘accidental’ mistakes that don’t affect the result of the ballot, employers only have to show there is a ‘serious issue to be tried’ when seeking an injunction against industrial action. 2010 has seen some farcical injunction applications by employers and some very creative judgments.
There have been no fewer than seven high profile injunction cases with six of them unsurprisingly in the transport sector. The most absurd judgment came in the now infamous case of BA v Unite where an injunction was granted because the union failed to tell members that there were 11 spoilt ballot papers out of a total of 11,600. The decision was overturned on appeal.
So how did we end up with such a complex and unnecessarily onerous balloting system you might ask? The answer to this question lies in the Conservative Party’s love for all things Friedrich Hayek.
You may recall Margaret Thatcher showing her undying love for the man’s work when she famously brought a copy of his ‘Constitution of Liberty’ to the despatch box. Let’s not forget that this was a man who called for a “libertarian anti-labour union movement of workers to combat the trade union monopolists”. This is what the Conservatives based their industrial relations revolution on.
Under the guise of wanting to protect trade union members’ democratic rights, the Tories sought to limit autonomy in the way unions conducted strike ballots. What they did not take into account was the unique nature of industrial democracy and the collectivist ideals that underpinned the entire movement. They certainly did not consider unions as multifaceted organisations with a variety of representative structures.
For example, large unions used to gauge membership opinion using different methods depending on whether the dispute was local, regional or national. It can be argued that the lack of autonomy to estimate membership support for strike action in urgent situations can actually prolong disputes. Compulsory postal balloting also took away the collective social process that is endemic to the workplace ballot. Basically, it was a ridiculous idea to impose libertarian ideals on trade unions.
Unions are now left facing a situation where employers are blocking industrial action using legislation intended to protect union members. Mr McDonnell’s Bill and the European Court of Human Rights cases will hopefully bring this issue to the fore at this crucial time for the labour movement. Maybe the trade union ‘dinosaurs’ got it right this time around. Mr Miliband (whichever one wins), please take note.
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26 Responses to “Our union balloting laws stem from the Tories’ love for all things Hayek”
Chris
@idle
Your so persistent in this, its like you actually believe you’d help workers by removing all their rights. In reality, not the extreme right la la land your in, employers would obviously make it a condition of working for them no strikes; exactly as they have done with the 48hr working time directive. Do you think anybody would be taken in by your dressing up the banning of strikes as an improvement for the average worker?
idle pen pusher
Chris, please do not mislead about what I’ve said. I do not believe strikes should be banned. I have not said that. I do not believe in bans or a bossy state. I believe the ban we have now stopping people from having strike free contracts is illiberal. I believe we should abolish this ban and let people work out for themselves what sort of agreement they want to make with other people. Please don’t say I believe something which I don’t just because it’d make your case better if I did.
I agree with you that if we were to have freedom on this issue, contracts permitting strikes would probably be very rare. It is curious that you didn’t speculate as to the likelihood of employee-beating clauses if we allowed them. They would also be very rare. Both would be very rare because both are damaging. Such a clause would be in the interest of employers (to minimise their liability in the event of a manager being abusive) and yet I hope you would agree employees would tell an employer to piss off if he wanted a beating clause. They wouldn’t insist on them. They would know that they’re not very valuable to them. Yet, as you imply, most would insist on no-strike contracts. Why? Because the cost of strikes is huge and not very valuable to the employee. The gain to the employer of a no strike contract is bigger than the loss to the employee. A net gain. So these would be common. A beating clause is the opposite. Very little gain to the employer, very big loss to the employee. Net loss. So these would be very rare.
The Working Time Directive is obscene. Where the fuck do a bunch of asshole politicians get off thinking they can tell me I can’t work longer than 48 hours in a week? Seriously, how arrogant do you have to be to think it’s your place to decide the maximum amount someone else can work? And then they’ve got the cheek to tell me this restriction on my freedom is my “right” as though that makes it better!
Chris
@idle
Oh, you actually believe this shit! Okay, well I think I follow what your saying although there are so many short sentences, I’m finding it hard. Firstly, you want employers to be able to sack workers for striking; this, imho, will obviously lead to an effective banning on all strike action. If you can’t see that then your deluded or have been toking too hard on the Neo-Liberal crack pipe.
Secondly, I didn’t touch on employer-employee beating because it was a piss take – you understood that, right? However, if such a law existed, as it used to, then it would again become a common occurrence for the average McJob/wage slave worker.
“Yet, as you imply, most would insist on no-strike contracts. Why? Because the cost of strikes is huge and not very valuable to the employee. The gain to the employer of a no strike contract is bigger than the loss to the employee. A net gain. So these would be common.”
Needless to say I don’t agree with that.
“The Working Time Directive is obscene. Where the fuck do a bunch of asshole politicians get off thinking they can tell me I can’t work longer than 48 hours in a week? Seriously, how arrogant do you have to be to think it’s your place to decide the maximum amount someone else can work? And then they’ve got the cheek to tell me this restriction on my freedom is my “right” as though that makes it better!”
Oh, you were holding it together up until now, well just about. But then the madness breaks through, do you actually work more than 48hrs a week pushing pens currently? Individually, workers are powerless compared to the overbearing might of their employers; isn’t that illiberal? Of course you will say noooooo, a worker can leave their job and work else where but again in reality they can’t especially now with 2.5 million jobseekers and 0.5 million vacancies.
Eric Silverman
RT @leftfootfwd: Our union balloting laws stem from the Tories’ love for all things Hayek http://bit.ly/alqwmK
Dilwyn’s Daily Digest – Friday 24th September 2010 « Aled-Dilwyn Fisher
[…] Ruwan Subasinghe writes at Left Foot Forward about the Hayekian origins of Tory-made trade union laws. […]