20 November 2015

By Andrew Moretta, World of Work Project Researcher, Institute of Employment Rights

IER readers will recall that in July 2015 the government released three consultation documents to accompany the Trade Union Bill. In November the Government published its first response to those consultations, starting with the intimidation of non-striking workers. Below, is a brief blog on that response by the expert who drafted IER’s submission to the consultation.

Following consideration of the consultation submissions received on the question of intimidation of non-striking workers and the written evidence submitted to the Public Bills Committee on the Trade Union Bill, the Government has amended the Bill to ‘clarify’ that the clause 9 ‘letter of authorisation’ will not require the picket supervisor’s name, and to permit only the employer involved in the dispute to require the supervisor to produce the letter.

The consultation submissions were overwhelmingly hostile towards the proposals aired by BIS, and the Government has evidently concluded that it would not be politically advantageous to introduce a new criminal offence of intimidation, or to incorporate any of the other proposals in the BIS consultation document into the Trade Union Bill.

Instead it intends ‘to strengthen the Code of Practice on Picketing to set out the rights and responsibilities of parties involved in, or affected by industrial disputes, including on the use of social media and protests linked to industrial disputes.’

It became evident during the committee stage in the Commons that the Government are now fighting something of a defensive battle over the Bill. Nevertheless, the Tory campaign to conflate the shame and unhappiness experienced by strike breakers with intimidation continues.

The Government’s response to the consultation makes much reference to “verbal taunts, strained relationships, whispering campaigns, aloofness” and “unfriendly body language”. But careful scrutiny of the text reveals that the solitary recent instance of intimidation that emerged from the consultation concerned threats made by private security guards to union members.

The Government is keen to ensure that this attack on collective bargaining, public protest and the finances of the labour movement continues to be presented as a Tory crusade against intimidation. Their extraordinary doublespeak message – reminiscent of the US ‘Right to Work’ Campaign – is that with the Bill “the Conservative Government are standing up for people who want to work and against bullies who want to stop them.”

The justification for the balloting thresholds appears to hinge on the premise that a minority are able to obtain approval for industrial action against the wishes of a cowed majority. The reality is that members who do not wish to take industrial action will vote ‘no’. Those who are prepared to take industrial action will either vote ‘yes’ or will not vote at all.

It is the participation in the strike which is the test of the support for the strike, and it is the ‘no’ vote in the ballot that is the test of the strength of opposition to the strike.

The ambiguous statement made by the chief executive of Arriva in his evidence to the Public Bills Committee that only 17% of his staff had voted in the ballot prior to a 2012 strike which brought half of London buses to a standstill was cited, both in the Committee sessions and the third reading of the Bill, as a prime example of a disruptive strike which lacked a clear mandate.

Yet fewer than 7% of those who voted in either the June or November 2012 UNITE strike ballots had opposed the strikes, and the majority of bus workers took action. In June they defied an injunction. Very likely more would have taken action if Arriva did not have ‘form’ for victimising trade unionists.

In 2011 two London bus drivers, Marcus Farr and Len Graves, RMT reps were ‘harassed, disciplined and threatened with the sack’ for wearing RMT high visibility tabards. Mr Graves was ultimately sacked, and brought a second successful case against Arriva, the tribunal finding that he had been dismissed on the grounds of his trade union activities.

This is real workplace intimidation – unlawful but unfortunately increasing. And with each restriction on the right to strike and each hike in the cost of pursuing justice, it becomes increasingly clear that it is the employer who has the whip hand in the workplace, discouraging activism and undermining collective bargaining.

It is here, rather than on the picket line, where the gap in the legal framework lies, and where criminal liability should be considered.