Responding to the new Tory strike laws

Business secretary Sajid Javid standing outside 10 Downing Street

The Queen's Speech recently confirmed that the Tory government's intent to bring in new laws further restricting strikes. The unions have reacted with fury - but will they really do anything about it?

After years of threatening to do so, the Tories are finally set to bring in even tighter restrictions on strikes. They are introducing the requirement for 50% of balloted members to take part in any vote for it to be legal, and in 'essential public services' no strike can take place unless 40% of all those eligible to vote in the ballot support action, regardless of actual turnout.

The UK already has “the most restrictive trade union laws anywhere in the western world”, as Tony Blair once boasted, and these new measures are only set to make things worse.

The official bullshit is that this is simply about making sure strikes are democratic, and a handful of rabble rousers can’t use the whole workforce as pawns to hold the poor bosses to ransom. Because, dear me, what is freedom if not the right to pay your workers piss all in exchange for making you obscenely rich without them having any means to complain about it? Nobody wants to strike, certainly not for triffling things like fair wages or safety, it’s only that the union barons make them do it.

This rhetoric quickly falls apart on even a cursory inspection. If it’s about democracy, why not allow workplace balloting to guarantee high turnouts? If it’s about legitimacy, why not apply the same standards to parliamentary elections, removing most of the Tory cabinet at a stroke? But of course it isn’t about those things. The fact that restrictions on scab labour are to be lifted only underlines that the point here is explicitly to restrict strikes as far as they can get away with short of making them illegal altogether.

In addition, it’s worth noting that these laws aren’t a response to overly belligerent trade unions. They’re the act of a ruling class on the offensive. They can enact the new legislation without worry for the same reason they can roll back all the concessions of social democracy - because the movement that won them is in retreat.

No answer from the union tops

Most people opposed to these new laws will know instinctively how to challenge them. Sure, there’ll be a naive soul here who really thinks a petition can sort it out, and a blind fool there who believes Labour will repeal them in five years time. But in general, people who want to defeat these new laws will realise that the way to do that is by defying them.

But it would be a mistake to look for that defiance to come from the union leaderships.

Such an idea is typified by the Socialist Party of England and Wales.

The Socialist Party wrote:
At the FBU conference, just days after the election, TUC General Secretary Frances O'Grady announced that there will be a special meeting of the TUC Executive in the aftermath of the Queen’s Speech. But if Cameron (elected on 24% of the electorate!) announces the threatened new laws to bring in 50% turnout thresholds in industrial action ballots and worse for the public sector, this has to be widened out to an emergency TUC General Council.

It should be a ‘council of war’ to seriously prepare the whole union movement for a 24 hour general strike, as a warning to the Tories. More importantly, it would raise the sights and lift the spirits of millions of workers and all those lined up to be on the receiving end of the Tories’ eye-watering £12 billion welfare cuts. The left executives should work out a strategy to put pressure on the TUC. But if the TUC refuses to organise, then the left-led unions should get together to call action.

To their credit, SPEW concede the likelihood of the TUC refusing to organise such defiance. This is amply demonstrated by both the TUC sell-out of the 1926 general strike, and its retreat in the face of Thatcher’s anti-strike laws. But it is more than just reticence or cowardice. Even were the TUC not merely an umbrella organisation with no power in itself to call a strike or instruct its member unions, calling a general strike (even in the tokenistic single-day protest form) simply isn‘t in its material interests.

I refered to both the existing legislation and that coming in as “anti-strike” rather than “anti-union” because it actually serves business trade unionism. In restricting the ability of workers to strike, the law also reinforces the union’s representative function - in mediating between workers and capital and providing individual case work support rather than organising collective disputes. In other words, it helps the union bureaucracies curb militancy while reinforcing their role in defusing anger for a seat at the bargaining table.

Of course, militancy has already been curbed to such an extent that the incentive for bosses to offer a seat to the bureaucrats is ever diminishing. While the majority of unions remain in denial of this, some keep up a show of combativeness in order to present some level of threat if they’re not listened to. These are the ‘left’-led unions SPEW refers to.

But their combativeness, no matter how sharply it contrasts with the TUC as a whole, is still largely for show. Supposed fighting unions like PCS still ultimately exist to moderate class struggle and how far they will go is still limited by their need to secure a position in negotiations by selling industrial peace. Not to mention that as businesses the unions have everything to lose and nothing to gain by defying the law and risking the sequestration of their funds.

In short, even if the TUC general council talks the talk of a ‘war council,’ it will always be a pantomime.

What then?

We’re not going to see a general strike any time soon - even a token one for a single day. Lobbying the TUC to ‘get off their knees’ in ignorance of both how it works and its material interests is a dead end. As is looking to the Labour Party who were responsible for a document called In Place of Strife and would have had us today referring to the ‘Wilson anti-strike laws’ instead of the Thatcher anti-strike laws had they not been defeated.

Instead, we need to look to ourselves. Enough has been written elsewhere, including by myself, about the need to build a movement from the ground up based on self-organisation and direct action that I don’t need to repeat myself here. But the point remains that the answer lies with our class rather than those who proclaim themselves our leaders or representatives.

So let’s not sloganise about a general strike, especially not a one-day shadow puppet version of it. Let’s not ‘call on’ the TUC or the Labour Party for a single thing since they can offer us nothing.

Let’s take matters into our own hands so that we can start to advance instead of retreating.

Comments

autogestión
May 30 2015 12:17
They are introducing the requirement for 50% of balloted members to take part in any vote for it to be legal, and in 'essential public services' no strike can take place unless 40% of all those eligible to vote in the ballot support action, regardless of actual turnout.

I'm a bit confused by this new law, and because I'm a complete armchair anarchist I don't have any experience of this sort of thing.

If 50% of balloted members take part in the vote, but only 40% of those eligible to vote vote in favour of the strike, doesn't that mean that 60% of those balloted voted against the strike?

omen
May 30 2015 13:06
Quote:
no strike can take place unless 40% of all those eligible to vote in the ballot support action, regardless of actual turnout.

Say there were 100 workers, but only 50 voted (which would meet the first requirement for the vote to be legal), but 11 voted against the strike and 39 for it, then it would fail the second test and the strike would not be legal, as less than 40% of those eligible to vote (39 of the 100, in this case) voted in favour, even though 78% of those who voted voted in favour (39 out of 50) and 22% voted against.

Steven.
May 30 2015 13:03
autogestión wrote:
They are introducing the requirement for 50% of balloted members to take part in any vote for it to be legal, and in 'essential public services' no strike can take place unless 40% of all those eligible to vote in the ballot support action, regardless of actual turnout.

I'm a bit confused by this new law, and because I'm a complete armchair anarchist I don't have any experience of this sort of thing.

If 50% of balloted members take part in the vote, but only 40% of those eligible to vote vote in favour of the strike, doesn't that mean that 60% of those balloted voted against the strike?

No. [Crossposted with omen]

When you have a strike ballot everyone gets a secret ballot paper posted to their home address, where they vote yes or no. So if you have a ballot where you get a 50% turnout (which is actually very good and much higher than most strike ballot turnouts, for many reasons, like they have moved and not updated the union of their new address) which results in 40% of the overall membership voting in favour of a strike, it means that of those voting 80% voted yes, and only 20% voted no. If people don't vote their vote isn't counted.

Good post though, Phil, I was thinking about writing something like this.

Something else I was considering is that again something like the Pop-Up Union could be extremely valuable. So if a big union like a Unison branch in the local council wanted to strike but only got a 40% turnout (which again is extremely high for a Unison turnout), a few workers could join the pop-up union, ballot themselves and all vote, resulting in 100% turnout, then take lawfully protected action which would apply to everyone taking the action whether they were in a union or not.

(Although of course obviously the best option is just to wildcat and break the law but unfortunately in many places this wouldn't be an option)

autogestión
May 30 2015 17:56

Thanks both, that clears up my misunderstanding.

Phil
May 30 2015 19:25
Steven. wrote:
Something else I was considering is that again something like the Pop-Up Union could be extremely valuable. So if a big union like a Unison branch in the local council wanted to strike but only got a 40% turnout (which again is extremely high for a Unison turnout), a few workers could join the pop-up union, ballot themselves and all vote, resulting in 100% turnout, then take lawfully protected action which would apply to everyone taking the action whether they were in a union or not.

(Although of course obviously the best option is just to wildcat and break the law but unfortunately in many places this wouldn't be an option)

This is definitely worth considering as a future tactic, especially as you say since the confidence to wildcat is far from widespread. (Although on a technical note, the lawful protection would only apply to those in the Pop Up and those not in any union - those in a different union which hadn't balloted or whose ballot didn't pass the new criteria would still be taking unlawful action.)

BTW, since the Pop Up Union is already registered with the certification officer, etc, it would be good if it was kept ticking over by someone so that if the need arises workers can just join it and take what action they need rather than having to go through the rigmarole of registering a fresh, separate pop up before they can even consider ballots.

the button
May 30 2015 19:34
Phil wrote:
BTW, since the Pop Up Union is already registered with the certification officer, etc, it would be good if it was kept ticking over by someone so that if the need arises workers can just join it and take what action they need rather than having to go through the rigmarole of registering a fresh, separate pop up before they can even consider ballots.

This is a very good idea. Am up for helping with this, if it's not already in hand.

Joseph Kay
May 30 2015 19:44

I think that ship has sailed. The Pop-Up would have had to have filed audited accounts by now, and made a pretence of still existing, to stay listed. Setting up a fresh one should be quicker in future with that experience though, and groups like IWW or IWGB might be willing to sponsor new public sector branches in a dispute (though that would be picking a fight with Unison et al, and they'd presumably want a more permanent branch, not a temporary flag of convenience).

the button
May 30 2015 19:53

Fair enough. There's a pop-up union set-up manual somewhere on here, iirc. Or at least the makings of one.

Phil
May 30 2015 22:05

A shame, really. Still at least the experience is there for others to set one up in the future without having to start entirely from scratch...

Steven.
May 30 2015 23:49
Phil wrote:
This is definitely worth considering as a future tactic, especially as you say since the confidence to wildcat is far from widespread. (Although on a technical note, the lawful protection would only apply to those in the Pop Up and those not in any union - those in a different union which hadn't balloted or whose ballot didn't pass the new criteria would still be taking unlawful action.)

No, the protection applies to everyone within a bargaining unit which is being affected by a lawful strike. And employers can't know what union people are in or not. So you only need one in in a bargaining unit to take action for everyone in the bargaining unit to get protection.

But that's a shame about Pop-Up Union expiring in terms of a legal entity (if indeed that is the case) as it would be handy if it was still in existence for people to join as and when necessary

orkhis
May 31 2015 00:09

Haven't the Tories made vague and as yet unspecified noises (in case I've missed it) about "reforming the role of the Trade Union Certification Officer"?

I don't know what those "reforms" might involve, but my assumption was that it could involve something along the lines of powers to revoke registered TU status or other similar punitive sanctions (such as sanctions against individual TU officials), plus extra auditing oversight. That would potentially place further legal obstacles/constraints in the way of innovations such as Pop Up unions or the IWGB. As we saw in the examples highlighted in the Carr report (the BESNA dispute for example) the state is very keenly aware of organising methods and examples which pose a threat. Also I don't think anyone can discount the possibility of established TUC unions having any scruples about working with the state to ensure their entrenched positions are maintained if not enhanced.

the button
May 31 2015 01:09
Joseph Kay wrote:
Setting up a fresh one should be quicker in future with that experience though, and groups like IWW or IWGB might be willing to sponsor new public sector branches in a dispute (though that would be picking a fight with Unison et al, and they'd presumably want a more permanent branch, not a temporary flag of convenience).

Although it looks like the IWW has removed its reduced subs rate for dual carders, which might cut across this somewhat.

https://www.iww.org.uk/join

No idea if that's a conscious decision, or just something missed off a new webpage.

Chilli Sauce
May 31 2015 04:24
Quote:
No, the protection applies to everyone within a bargaining unit which is being affected by a lawful strike.

My understanding of this is that the legislation is pretty vague and even different government sources will give you a different interpretation. Obviously, something we should interpret to our advantage, but we should be prepared that employers may come back at us with their interpretation. That said...

Quote:
And employers can't know what union people are in or not. So you only need one in in a bargaining unit to take action for everyone in the bargaining unit to get protection.

...this is key. Employers have no right to ask if you're in a union or what union you may or may not belong to. We just have to prepare our workmates for that - and be prepared that our unions may offer up that information to management (as UNISON did once at my old workplace, despite that explicit wishes of our stewards and shopfloor activists).

Also, I'm pretty sure that if a branch was being set up explicitly to strike, the IWW would be more than happy to offer cut-price dues. That said, the IWW was invited to get involved in the Pop-Up Union in the early stages, but declined to do so.

In any case, thanks for writing this up Phil. Good read - as always!

Joseph Kay
May 31 2015 06:42

You do have to tell the bosses how many people you're balloting in a bargaining unit though. (This is how the Pop Up strike was injuncted; law says something like you must tell employer how many people are eligible to take part in the action, Sussex's lawyers interpreted this to mean membership numbers). Again, this might be a matter of interpretation, but the odds are stacked against us in court.

fingers malone
May 31 2015 08:07

Also, in many workplaces you can't just join whichever union you want, if there is more than one union they may cover certain job roles eg one union for manual workers, one union for admin workers, you may only be allowed to join the one that fits your job role and then everyone will know which union you are in.
Also, I think it matters if you could have been balloted over the issue, if the strike is over a specific issue and only some workers would have been balloted, it could be quite possible for management to know if you could have been balloted. For example if the strike is over local government pensions, and the cleaners are agency workers and not in the pension scheme.
I think it's usually pretty difficult to persuade workmates to take action in any way that they feel is or could be outside legal protection, and employers are likely to be really, really aggressive about it.

It's similar to taking in-work action, people feel very insecure doing it, and at the moment employers are able to really go for people, so it's understandable.

fingers malone
May 31 2015 08:24

This is from gov.uk

You could be dismissed for taking part in industrial action if

the union hasn’t called its members to take action because they think the dispute is settled or action is called by someone who doesn’t have the authority to do so
it’s in support of workers taking action against another employer (otherwise known as ‘sympathy’ or ‘secondary’ action)

Does anyone know how this plays out with outsourced workers? Are they considered to be taking action against another employer or not?

Joseph Kay
May 31 2015 08:50

RMT are taking the UK to the European Court of Human Rights partly over the right to strike in sympathy with outsourced workers: http://www.thompsons.law.co.uk/ltext/126-rmt-united-kingdom.htm

As it stands, I think outsourced workers are considered to be employed by the agency, not the principal (I.e. outsourced cleaners at a university couldn't join a strike by uni staff, afaics).

Edit: looks like RMT lost the case: http://ohrh.law.ox.ac.uk/rmt-v-united-kingdom-sympathy-strikes-and-the-european-court-of-human-rights/

Though sounds like the court's reasoning did criticise the relatively extreme restrictions on strikes in the UK:

The case is important for its clear recognition that restrictions on industrial action, including sympathy strikes, are protected by Article 11. It leaves open the possibility that in other circumstances restrictions (including the ban on secondary action) will not be justifiable under Article 11(2).

fingers malone
May 31 2015 09:41

Thanks

Joseph Kay
May 31 2015 21:55

Probably not necessary in the USA - my understanding is in the US workers have 'concerted action' rights' to collective action, which they sign away through union contracts. Whereas in the UK, workers have no rights to collective action, but can get limited immunities if they take action through a trade union and jump through all the legal hoops.

Joseph Kay
May 31 2015 22:09

I think it's more precarious in many ways in the US - a lot of states have 'fire at will' right? It's generally harder to fire people without reason here, though the government have extended the qualifying period for protection to 24 months now I think, plus introduced substantial fees to deter unfair dismissal claims. Chilli or someone's probably able to give a better comparison.

All that said, the Pop-Up idea partly came from the discussion of union front-groups with less resources to lose that's in Joe Burns' Reviving the Strike, which is about the US.

Chilli Sauce
May 31 2015 22:55

Yeah, that's a really weird thing about US labor law - while on many fronts ("at will employment", Weingarten rights, due process in regards to disciplinaries) we have far less rights than much of the rest of the world, the right to concerted activity is actually an incredibly powerful piece of legislation. It basically gives legal protection to any two or more workers who act in concert to defend or advance their working conditions.

It also explains why unions rarely ever strike outside of negotiation periods - because in 99.9% of cases a union contract severely curtails our right to concerted activity.

Joseph Kay
Jun 3 2015 10:42
omen wrote:
Quote:
no strike can take place unless 40% of all those eligible to vote in the ballot support action, regardless of actual turnout.

Say there were 100 workers, but only 50 voted (which would meet the first requirement for the vote to be legal), but 11 voted against the strike and 39 for it, then it would fail the second test and the strike would not be legal, as less than 40% of those eligible to vote (39 of the 100, in this case) voted in favour, even though 78% of those who voted voted in favour (39 out of 50) and 22% voted against.

Fwiw I made a graph of required yes vote as a function of turnout (everything below the orange area would fail):

Joseph Kay
Jun 3 2015 10:45
iexist wrote:
How hard would it be to ban no strike clauses? I'm guessing really fucking hard.

I think the IWW has banned them in North America. In order to 'ban' them in general, the state would have to legislate that no contract clause promising not to strike is enforceable. Can't see that ever happening.

snipfool
Jun 3 2015 10:53
Joseph Kay wrote:
Fwiw I made a graph of required yes vote as a function of turnout:

A graph like that is pretty useful so thanks for doing it, but I think it might be wrong. It shouldn't include turnout less than 50% because that's not valid. At the other end, 100% turnout says a 50% vote is required, but only 40% is needed. So something is wrong I think!

edit: d'oh, I'm probably reading it sideways (or the labels are the wrong way round?)

Joseph Kay
Jun 3 2015 11:13

Oh yeah. Will unpublish and fix later.

Edit: should be right now. Doing this on the sly at work, so can't look at it full-screen to check properly. Now the minimum turnout (on the x axis) is 50%, and the required 'yes' vote falls to 40% on a 100% turnout.

Chilli Sauce
Jun 3 2015 13:07
iexist wrote:
How hard would it be to ban no strike clauses? I'm guessing really fucking hard.

Yeah, I think that's the wrong way to look at it. How have I heard it put before? The only illegal strike is one that fails.

Outside of a massive, massive upsurge in class struggle, there's basically nil chance of forcing that concession on management - and, ironically, I imagine that level of class struggle would, as in the past, bring the unions themselves to support tighter strike laws. So, instead, I think we just need to build up a culture of self-organisation, a refusal to cross picket lines, wildcat strikes, and a healthy disregard for labor law in general.

Oddly, in America, this is arguably easier as most workers aren't unionized and don't have unions to send them back to work if they wildcat - but, as always, the issue is confidence as opposed to any particular union or legal framework.

Joseph Kay
Jun 3 2015 13:12
Joseph Kay wrote:
the required 'yes' vote falls to 40% on a 100% turnout.

I think the reason I set it to 50% originally, is that at implausibly high turnouts, this is actually a lower threshold than at present, i.e. not an actual majority. That will probably never apply in national disputes, but in local ones, a turnout above 80% could see strikes allowed with <50% voting yes. That seems unlikely. I guess we'll know when they introduce draft legislation, but I'd be shocked if they allow 'yes' votes under 50% to authorise a strike even in principle.

Fall Back
Jun 3 2015 14:08
Joseph Kay wrote:
Joseph Kay wrote:
the required 'yes' vote falls to 40% on a 100% turnout.

I think the reason I set it to 50% originally, is that at implausibly high turnouts, this is actually a lower threshold than at present, i.e. not an actual majority. That will probably never apply in national disputes, but in local ones, a turnout above 80% could see strikes allowed with <50% voting yes. That seems unlikely. I guess we'll know when they introduce draft legislation, but I'd be shocked if they allow 'yes' votes under 50% to authorise a strike even in principle.

Glad you posted this because I was just getting really confused!

The restrictions will be on top of the current requirements - 40% is a minimum, but not in itself sufficient.

So the graph would be flat at 50%+1 Yes between 100% and 80% turnout, then required % increasing evenly to 90% Yes at 50% turnout (or 50%+1 if they word it as more than 50%), the jumps right to impossible.

the button
Jun 3 2015 14:19

I think we can all agree that these new rules are great news for Thompsons Solicitors.

Joseph Kay
Jun 3 2015 14:33
Fall Back wrote:
The restrictions will be on top of the current requirements - 40% is a minimum, but not in itself sufficient.

So the graph would be flat at 50%+1 Yes between 100% and 80% turnout, then required % increasing evenly to 90% Yes at 50% turnout (or 50%+1 if they word it as more than 50%), the jumps right to impossible.

That makes sense. Have reverted the graph back to flatlining at 50.1% (as good as 50%+1 given the resolution of the graph).

iexist wrote:
Massive wildcats?

All in favour of that, but it doesn't really ban no strike clauses, just ignores them.