8 October 2010

Keith Ewing, IER President

On the day of last week’s Tube strike the Continuity CBI launched yet another missile in its inimitable version of the class war against working people and their organisations.

The extremists of the British business lobby proposed ever more vicious restraints on the right to strike, including daily financial penalties on trade unions and a requirement that trade unions give longer notice to help employers prepare for a walkout. They already get the best part of a month.

But as any trade unionist will know only too well, the problem of British strike law is not that it is too lenient but that it is too tough. One of Tony Blair’s promises at the election in 1997 was that Britain under new Labour would continue to have the most restrictive labour laws in Europe. That was the one promise he kept.

Unlike anywhere else in the world British trade unions are burdened by unnecessarily tight and disproportionate obligations to give notice to employers of their intention to hold a strike ballot, notice of the ballot result to both the employer and union members, and notice of an intention to strike.

But it is not the unparalleled number of notices that have to be given so much as the volume of information that causes difficulty for trade unions, faced by employers who now hire very expensive lawyers to pick their way through the legislation line by line and word by word in a fruitful search for loopholes in badly drafted statutes.

As a result RMT was stopped from taking action against electricity supplier EDF when it told the employer that it was planning to ballot engineers and technicians. The court bent the knee to the employer’s demand that action was unlawful because the union had failed to provide full job descriptions of the 50 or so workers in the dispute.

Unite cabin crew were stopped from going on strike because the union included in a strike ballot some of the workers who would be taking voluntary redundancy before the strike started, even though their involvement would have no impact on the outcome of the ballot in which over 90 per cent voted in favour in an 80 per cent turnout.

RMT was stopped from taking action against Network Rail for failing to comply with the law’s demand that the union give notice to the employer of the location of the workers who are to take part in the strike – an impossible demand in industries where there is a high turnover of both workers and workplaces.

And so it goes on and on. London busworkers were stopped from taking industrial action when, because of an administrative oversight not wholly within its control, their union Unite gave notice of the ballot result to the employer within 48 hours of the ballot result. This was said by the court not to be “as soon as reasonably practicable.”

BA cabin crew were the subject of an injunction after a second ballot because Unite had failed to notify union members that of the 10,000 or so people who had voted in the ballot – returning yet another whopping majority in favour of industrial action – 11 had spoiled their papers.

And finally, in perhaps the lowest point in a dismal list of cases, Unite members at Milford Haven were stopped by an injunction from taking industrial action because the union’s notice that it was taking both continuous and discontinuous industrial action should have been given on not one but on two pieces of paper.

It is true that in some of these cases the injunction was lifted on appeal, but they should never have been granted in the first place on such flimsy grounds. It is this abuse to which John McDonnell’s extremely modest Lawful Industrial Action (Minor Errors) Bill is addressed.

The purpose of this very short Bill is to excuse any accidental failure by a trade union where “there has been substantial compliance,” and where the failure is on a scale unlikely to affect the result of the industrial action ballot or a reasonable recipient’s understanding of the effect of any of the industrial action notices referred to above.

Otherwise the Bill says that in any proceedings where it is relied on it will be presumed that there has been substantial compliance with a procedural obligation unless the employer can prove otherwise, and prove also that the failure affected the outcome of the ballot or the understanding of the effect of the notice.

McDonnell’s Bill is to be introduced for a second reading in the House of Commons on October 22. It is important that all Labour MPs are there to support it. Although no doubt terrorised by the class warriors from the CBI there can be no excuse for faint hearts on the Labour benches.

The existing law is wholly indefensible and any suggestion that it needs to be tightened is both risible and contemptuous. The industrial action notice requirements have been condemned by the Council of Europe and even British judges scratch their heads when an employer tries to stop a strike because a union has failed to notify its members of the ballot result.

There can be no excuse either for Labour’s new leadership failing to support McDonnell’s Bill.

Ed, you are not being asked to restore the right to strike, even to minimum international standards. You are being asked simply to ensure that unions are not disabled from taking legitimate action when they have done their best to comply with the most restrictive anti-union laws in the developed world.

Article originally appeared in the Morning Star.