8 September 2015

By Alan Bogg, Ruth Dukes and Tonia Novitz

The Government’s indecently short consultation procedure on the important issues of restricting the right to strike, using agency workers as strike-breakers and curtailing the freedom and civil liberties of working people to publicly protest ends tomorrow (9 September 2015). The IER will be responding to each consultation as best we can given the restrictive nature of the questions and the inadequate response forms. Here we offer a critique of the Government’s proposals on strike ballot thresholds.

The Trade Union Bill imposes sweeping new restrictions on the rights of trade unions and workers – the biggest set of changes to trade union law since the 1980s. Several of its provisions appear to breach workers’ human rights to freedom of association and freedom of assembly, and the Bill is vulnerable to legal challenge on those grounds.

Clauses 2 and 3 of the Bill deal with pre-strike ballots, introducing new higher thresholds which a trade union must meet if subsequent industrial action is to be lawful. An obligation to ballot workers in advance of industrial action was first introduced in the UK in 1984, when it was provided that in order to benefit from the statutory immunities against liability for industrial action, a trade union had to hold a ballot of the relevant workers, and to win the support of a simple majority of those workers. The stated aim of the move was to strengthen the democratic right of union members not to be called upon to take industrial action without having had the opportunity to vote on whether such action was desirable (Democracy in Trade Unions Cmnd 8778, 1983).

In the years since, the number of days lost to industrial action has, of course, fallen dramatically. Pointing to the relatively small number of cases where industrial action has been taken on the back of a ballot in which there has been a low turn-out, however, the Government has emphasised its concern about a lack of ‘fairness’ and ‘democracy’. It has proposed that in all ballots for industrial action, at least 50% of the union members entitled to vote should have to take part in the ballot in order for it to be valid (Clause 2). For example, in a ballot affecting 200 union members, at least 100 of those members would have to vote in order for it to be valid, and a simple majority of those voting would have to vote in favour of taking industrial action. In the case of ‘important public services’ – health, education of those aged under 17, fire services, transport, border security, and nuclear decommissioning – the Government has proposed an additional requirement that 40% of all those entitled to vote should vote yes (Clause 3). So, in a ballot affecting 200 union members, at least 100 of those members would have to vote, and at least 80 would have to vote in support of the industrial action. It is important to observe the Government’s sleight of hand here, for ‘important public services’ is far wider than the concept of ‘essential services’ in international labour law. The Government should not be permitted to piggyback onto legitimate arguments about the need for special restrictions in ‘essential services’, because the implied analogy between ‘important’ and ‘essential’ services is spurious and self-serving.

According to research carried out by Darlington and Dobson, the effect of the new rules, should they be enacted in their current form, is likely to be dramatic.¹ Many trade unions will find it very difficult to organise lawful industrial action, especially in national collective bargaining negotiations and against government-initiated austerity measures, both of which have greatest impact on the public sector. Indeed, Frances O’Grady has argued that the measures would ‘effectively end the right to strike in the public sector’.²

Clauses 2 and 3 breach international labour standards set by the ILO and – because its terms are increasingly interpreted with reference to international labour standards – may also breach the right to strike as protected by Article 11 of the European Convention on Human Rights. Under international law, pre-strike ballots may be allowed in certain circumstances but only if they are ‘reasonable’ and do not place a ‘substantial limitation’ on the means of action open to trade unions (B. Gernigon, A. Odero and H. Guido, ILO Principles Concerning the Right to Strike (Geneva, 2000), 25). The requirement in Clause 2 that an absolute majority of all the workers involved in the industrial action vote in favour of it would likely be judged unreasonable, since it ‘could excessively hinder the possibility of carrying out a strike, particularly in large enterprises’ (ibid).

Clause 3 specifying the additional and more restrictive 40% threshold is an even clearer violation of ILO standards, since all of the current evidence points to the fact that Frances O’ Grady’s dire prediction of the extinction of the right to strike in the public sector is not mere hyperbole. Of course, any interference with an Article 11 right can be justified under Article 11 (2) where the measure is ‘prescribed by law’ and is a proportionate means of achieving a legitimate aim. It is difficult to see how these elevated ballot thresholds could be justified under 11 (2), however, since they do not bear even a tenuous rational relationship to the legitimate need to ensure a minimum service where disruption could endanger the life, health or personal safety of the population. Again, the justification of restricting measures under Article 11 (2) will be informed by ILO standards.

If the Government was truly motivated to ‘improve democracy’ by increasing participation rates (and not just intent on making it more difficult for workers to exercise their right to strike), it could have taken alternative steps. For example, it could have legislated to allow for ballots to be conducted online or via text-message, instead of by postal ballot. In truth, these proposals have nothing very much to do with democracy, and everything to do with a barely disguised ideological attack on autonomous trade unionism. The Tories’ contempt for democracy is laid bare in the nonsense that passes for a public consultation exercise. Conducted over a truncated period in the depths of summer, and framed around questions designed to shield the proposals from fundamental scrutiny, the process seems nothing but a sham. The Trade Union Bill is a divisive, nasty and vindictive piece of legislation designed to stick it to working people. While Ministerial sponsors of the legislation invoke the flannel of ‘One Nation’ Toryism to justify the attack, make no mistake. This Bill owes nothing to high political principle: Benjamin Disraeli would be turning in his grave. The Trade Union Bill simply picks up where Mrs Thatcher left off, and it returns to finish the business that was left unfinished twenty-five years ago.

^{1. [R Darlington and J Dobson, The Conservative Government’s Proposed Strike Ballot Thresholds: the Challenge to Trade Unions (IER August 2015)]↩}

^{2. [BBC News, 7 Sept 2014]↩}