First buses London strike injunction

While we do not agree with everything he says, Martin Mayer, Chair, United Left, commented on the decision:

It may be tempting to blame your Union when strikes are ruled "illegal" by a judge, as in the case of First London re their proposed strike for 6th January (today).

But hang on. What if the law is outrageous, and the Government, the employers and the courts are all stacked against workers going on strike? Please stop and look at what is really going on in this country before taking a knock against your "incompetent" Union.

No other country in Europe has such punitive anti-union laws. Anywhere else a postal ballot showing 80% or 90% in favour of strike action would never be stopped by the courts. Here in the UK the strike is still deemed to be illegal unless every complicated rule about the balloting procedure is followed to the letter. So you can have a 90% postal ballot for strike action, but if you do not give a sufficiently rigorous explanation as to how you have arrived at the total number direct debit payers, the strike would be illegal - even if the Union declared the accurate number of direct debit payers and they form only 5% of the workforce. That's just one example which came out of the Metrobus v UNITE Court of Appeal hearing in July 2009. And if the strike goes ahead the Court can award damages against the Union of everything the employer has lost on that day.

The Labour Government has not only refused to repeal the Tories' anti-union laws, it has made them worse by a couple of very serious amendments to the legislation (which were used by the Court of Appeal in the Metrobus case). Following Labour's victory in 1997, the Unions lobbied the government to change at least one aspect of the legisaltion which required Unions to give an
accurate list of names of those to be balloted for strike action. The Government's amendments did that by allowing Unions to declare their "check-off" membership by employee category and location, and separately their Direct Debit membership with an explanation of how that figure was arrived at.
However more significantly, the Labour Government's amendments changed the whole emphasis of the legislation away from the Tories' original intention, which was to protect union members from their own union by ensuring strike ballots were independent and democratic. New Labour's amendments made the whole rigorous balloting requirements and disclosure of information a protection for employers, so that they could adequately prepare for any strike action. This
means employers can claim that any deficiency in the balloting process affects their ability to prepare for a strike - in other words a bosses' injunction charter.

Unlike in any other legislation in the UK, injunctions can be used to stop strikes almost at the whim of a judge. An injunction hearing is not a proper court hearing. All the employer has to do is present a possible case of a breach of the balloting process enough to satisfy the judge that the employer
would have a chance of success in a court hearing. In the case of First London, Firstgroup has actually tried to use a number of legal reasons to stop the strike, most of which have failed because they were totally invalid. The one which succeeded was as follows:

UNITE balloted its members for strike action and action short of a strike (which is normal in UNITE ballots) and got a majority to both questions. UNITE called an action short of a strike within the first 28 days, and then discontinuous strike action in the second month. The argument centres around
whether the mandate was activated within 28 days, or otherwise became invalid if the first strike action took place after 28 days. The employer argues that the two questions on the ballot paper constitute two different ballots, and the one for strike action was not activiated within 28 days, therefore the strike action for 6th January is illegal. The judge accpeted there was legal argument
here and issued the injunction as the employer requested. UNITE and other unions dispute that it is two separate ballots; it is one ballot with two different questions, allowing the Union some flexibility in the type of action it takes. In this case it used the mandate to start action within 28 days with an action short of a strike, and step up the action in the second month when that failed. UNITE has never had any legal advice to say that is not valid, and nor has any other union.

In the recent BA case, the judge granted an injunction on very alarming grounds indeed. BA argued the strike should be ruled invalid because 800 or 900 members were balloted for strike action, who then were made redundant prior to any strike action being carried out. The judge accepted the employer's argument and issued an injunction, even though this would have made no difference to the
90%+ strike mandate affecting over 12,000 members. But the legislation is actually very clear. The Union must ballot all its members in the bargaining unit affected by the dispute. It cannot exclude members who may not be there after the ballot papers are issued. Indeed that would be grounds for an injunction too!! Furthermore UNITE correctly informed the employer of the members it was intending to ballot with a notice issued 7 days prior to ballot. The employer did not raise any objections at the time, yet would have known that some employees would be made redundant. But the law also requires a further notice to be provided by the Union after the strike ballot has been
completed and giving 7 days notice of any strike action. This letter must declare an updated list of members who will actually be affected by the strike action. In other words the legislation accepts that there may be a difference between the numbers of workers balloted and those taking strike action, because of joiners and leavers. This appears not to matter to the judge in the BA case, even thought the Union complied fully with the letter of the law.

Now there is a further political element going on here. We are in the grip of an employers' offensive, eager to roll back workers pay and conditions in order to extract maximum profit in this economic crisis. Major employers are using specialist anti-union lawyers to pore over the legislation to try to find any possible breach of the legislation to stop strikes taking place. These employers want to break unions and hope that members will simply give up in furstration. They also hope union activists will turn on their own unions and cause internal strike and division. The Tories are waiting in the wings to take power in the Spring with a raft of new anti-union proposals and the employers
are super-confident that they will get their way. Testing the courts now paves the way for further legislation to "clarify" the law later in favour of the string of injunctions we have seen throughout 2009. And probably some attempt to make public service strikes even more restricted. And New Labour's repsonse?

Total silence on the issue because they still calculate they can only win the election by winning over Daily Mail voters; improving trade union rights is not seen by Brown and Mandelson as an election winner.

This is political and it's serious. Trade union rights have never been more under threat in this country. For god's sake, don't fall into the trap of knocking your Union for "ballsing up" strike ballots. Now is the time for us to defend our Unions and fight for the right to peacefully withdraw our labour.
This is a fundamental right in any democratic country and it is under attack.