Len McCluskey was right to ask whether unions can continue to stick to draconian new rules
‘Why is the strike, or, better perhaps, the potentiality of a strike, that is, of an event which of necessity entails a waste of resources, and damage to the economy, nevertheless by general consent an indispensable element of a democratic society?’
This question, raised in 1972 by the pioneering labour law academics Otto Kahn-Freund and Bob Hepple, should have been at the forefront of business secretary Sajid Javid’s mind when he made it a priority (in only his first day in the job) to deliver the Tory manifesto promise of “protecting the public from disruptive industrial action”.
However, it is unlikely Javid indulged in such intellectual enquiries when, in his own words, he considers it ‘fair, proportionate and sensible’ to make it more difficult for workers to go on strike.
Chief among the Conservatives’ proposed amendments is the introduction of a 40 per cent ballot threshold for strikes in essential public services. This measure, intended to tackle what the Tories believe is the ‘disproportionate impact of strikes in essential services’, specifically targets the health, education, fire, and transportation sectors.
There will also need to be a minimum 50 per cent turnout in strike ballots.
Finally, they plan to repeal the ‘nonsensical’ restrictions banning employers from hiring agency strike breakers.
As I have written in these pages previously, these proposals will undoubtedly violate the UK’s international law obligations. While the introduction of a quorum will not in itself breach international law, the cumulative effect of the UK’s restrictive labour laws certainly will.
The International Labour Organisation has already berated the UK on its balloting requirements for, among other things, having ‘laws on industrial action ballots and notices which are too complicated and rigid’. On restricting the right to strike in essential services, the ILO’s Committee on Freedom of Association has repeatedly stated that such action can only be permissible where the interruption of those services would endanger the life, personal safety or health of the population.
To that effect, the Committee has explicitly held that transport and education do not constitute essential services for the purposes of industrial action. Furthermore, the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term has been regarded by the Committee as a serious violation of freedom of association.
Interestingly, the government’s plan to scrap the Human Rights Act, which incorporates the European Convention on Human Rights into domestic law, is also relevant in this discussion. Following a 2008 decision, the European Court of Human Rights held, among other things, that deference should be given to the above-cited ILO jurisprudence and other international legal instruments when determining the rights covered in Article 11 (Freedom of Association) of the Convention.
With the new British Bill of Rights set to ‘break the formal link between British Courts and the European Court of Human Rights’, it is likely that individuals wanting to bring cases under the ECHR will have to go all the way to Strasbourg to do so. Even though the European Court of Human Rights recently sided with the government on a specific strike restriction, the denial of access to Convention rights locally is simply a further denial of justice.
Len McCluskey was right to ask whether unions can continue to make the commitment to stick, under any and all circumstances, within the law as it stands.
Trade union membership stood at 13 million in 1979, the year Margaret Thatcher started gradually introducing a string of anti-union laws. Today, there are roughly 6.5 million workers who are trade union members.
It is obvious that the restrictive strike laws played a part in this dramatic decline. If the Tories continue to have their way, what will union membership figures look like in 20 years?
There can only be one answer to McCluskey’s question.
Ruwan Subasinghe is a legal advisor for the International Transport Workers’ Federation (ITF). Follow him on Twitter
34 Responses to “Tory trade union proposals will violate international law”
gs81
By what evidence do you suggest that? The strongest economy in Europe, Germany, also has the strongest trade unions. In fact it’s common place for the union members in German companies to have a representative on the board of directors.
WhiteVanMan
Have to question whether Thatcher democratizing unions were anti Union laws, surely for a union to be their to negotiate it has to be for members interests,which is what democracy is
saying that tories who got less than40% of the vote in their constituencies shouldn’t vote for the law 40% turnouts, for yes votes, or union strike ballots aren’t legit, as they’ve got less than the amount,in elections,as the number they suggest unions strike votes need,
Overlook the fact in general elections there’s more than 2 candidates, so , getting 40% of a turnout,and the majority of votes is different to strike votes as there’s in,y 2 options on do you want to strike YES or NO
gunnerbear
“On restricting the right to strike in essential services, the ILO’s Committee on Freedom of Association has repeatedly stated that such action can only be permissible where the interruption of those services would endanger the life, personal safety or health of the population.” So that would be in the Police Service, the Fire Service and NHS then along with the railways that move so many of the aforementioned professionals to and from their place of work – glad the author agrees with the proposals.
gunnerbear
Yes…but German TUs don’t strike at the drop of a hat and are very socially conservative in terms of how to become a ‘professional’ and German TUs act swiftly and decisively if their members drop below expected professional standards. Not the same thing as a British TU at all and in Germany the TU movement is becoming ever more fragmented. As to putting workers on to boards – that had noting to do with workers rights but everything to do with dispersing centres of power as widely as possibly through the new West Germany for reasons I’m sure are clear and additionally the Germans knew that co-operation was the only way to get Germany working again.
MariaRRoy
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