Expanding on my previous post on the subject, an in depth look at the provisions of the Tory government’s proposed Trade Union Bill and how it can be challenged.
The Tories have, for several years, been making noises about restricting strikes with a 50% turnout threshold. In the Queen’s Speech, they finally confirmed that they were making their wet dream a reality. But now that the Trade Union Bill has been published, it goes even further than we thought.
Firstly, it’s worth noting that this bill is not purely a product of David Cameron’s government. They are the culmination of a project begun by Margaret Thatcher in the 1980s, who succeeded where both Edward Heath and Harold Wilson before her failed, by first taking on the most powerful unions and then legally constraining strike action.
Thatcher’s laws, currently embodied in the Trade Union and Labour Relations (Consolidation) Act 1992, are not actually ‘anti-union’ as they are often depicted but specifically ‘anti-strike.’ This distinction may seem a pedantic one, but it is incredibly important in understanding where we are and what response we need.
TULRCA and its associated codes of practice actually set out statutory rights for trade unions in regards to representation, consultation, and facility and training time for union representatives. The reasons for this are borne out in studies showing that union recognition can and does save employers money, avert industrial action and benefit the economy. This is something that businesses recognise as well as unions, and is one of the reasons unions were legalised in the first place.
By contrast, the act stipulates that strikes cannot be called in mass meetings or be sprung upon them. Secret postal ballots are required, a week’s notice has to be given, and there are various other legal and bureaucratic hoops to jump through in order to call workers out on strike.
The effect of all this isn’t so much to hinder trade unionism but to hinder a specific brand of trade unionism. Much like with the legalising of unions to begin with, the aim was to do away with the workforce as a collective causing disruption and instead have individual officials empowered to speak on the workforce’s behalf and, importantly, to make compromises and reach accommodations on their behalf.
Thatcher’s laws accelerated this moderating, service-provider model of trade unionism. So individual problems were channelled into clearly-defined grievance and discipline procedures instead of evolving into group disputes. Negotiations mutated so that the process of entering into a dispute with an employer was riddled with bureaucracy and largely detached from the workplace. Providing insurance, consumer savings and other such products became as much a part of trade unions as collective bargaining.
On the whole, trade unions accepted this shift, even if with the occasional sabre-rattling about ‘anti-union laws.’ Even with several unions forming an ‘awkward squad’ still willing to take strike action fairly often, this has led to historically low levels of strikes, and unions more often seen by bosses as ‘social partners’ than an opposing side in industrial strife.
Current strike levels in context
However, this has created a paradox. With unions having contained and defused their members’ anger for so long, they have effectively de-powered the movement to such an extent that the state and bosses no longer feel as strong a need to accommodate it. Embracing social partnership has in effect reduced the necessity for social partnership.
The changes to come
The Trade Union Bill, then, is not a retaliatory strike against a belligerent trade union movement but an attempt to finish the unions off when little effective resistance is anticipated.
Perhaps that is the reason for the extent of the changes being put forth in the bill. Ballot thresholds have long been the main talking point when the Tories have threatened these changes, but they are by no means the last word on the matter. The bill contains much more for organised workers to worry about.
In full, the main changes are:
- The requirement that a strike ballot must have at least a 50% turnout in order to provide a lawful mandate for industrial action;
- In “important public services,” the requirement that on top of a 50% turnout the action must have been voted for by 40% of those eligible to vote. In practice, with a 50% turnout, this would necessitate a minimum 80% support for action;
- The requirement to provide fourteen rather than seven days’ notice to the employer of any action;
- The expiration of an industrial action mandate four months after the date of the ballot;
- The requirement that any picket line must have an appointed picket supervisor, who will give their details to the police, be present or available to attend throughout the picket, be visibly identifiable and carry a letter of authorisation from the union that they have to show on request to the police or to anybody else who asks to see it;
- The requirement that all unions with a political fund must not only ballot members on the fund’s existence every five years, as the law already requires, but also ask each individual member whether they wish to pay into the fund every five years;
- The requirement on unions to include an audit of protests and pickets in their annual returns to the Certification Officer, with extra powers to the Certification Officer to impose levies and penalties if these requirements are not complied with;
- The requirement for all public sector employers to publish how much time their employees who are union reps spend on trade union duties (‘facility time’) and the cost of this time from the pay bill, and reserve powers for the government to impose restrictions on these amounts.
The bill also imposes extra technical requirements on unions in how a ballot is run and how the result is notified.
Beyond the provisions of the bill, the government is also running three consultations in order to make additional changes.
Arsehole-in-chief David Cameron and class warfare minister Sajid Javid
The consultation document Tackling intimidation of non-striking workers sets out their intent to make breaches of the code of practice on picketing criminal rather than civil offences. In the document, they lay out plans to further restrict not only pickets but also other protests related to industrial action.
Hiring agency staff during strike action is aimed at giving employers much greater leeway to draft in scab workforces in order to counteract the effect of strike action.
Ballot thresholds in important public services offers a much more in-depth look at what the bill means by ‘important public services’ and who would potentially be affected by the 40% threshold.
All of these changes have a clear goal of making strike action far more difficult to engage in lawfully, and restricting how much lay reps can do in order to increase reliance on full time officials. At once, then, this even further reduces disruption to business while shifting the power within the union from those whose primary material interest is in winning improved conditions to those whose primary material interest is in preserving their position by maintaining a seat at the negotiating table.
The official trade union response
As soon as the measures were announced in the Queen’s Speech, and again when the full bill was revealed, union leaders responded with fury. There were a lot of tough words about how this was an attack on the working class (or, ‘working people,’ as more moderate union leaders prefer to put it in terminology that is uncomfortably close to that used by the Tories), democracy and hard won rights.
All of this is true. The working class won the rights we have today through mass movements which had as their most powerful weapon the ability to disrupt, slow down or entirely stop production. We have health and safety laws, statutory employment rights and more on the back of such action. Which is why attempts at anti-strike laws are as old as strikes themselves, and legislative mechanisms were often supplemented by violent repression of strikers by the state.
But ultimately all the fine words of the trade union leaders are just that – words. For the reasons already outlined, they’re not about to lead a crusade to prevent these laws by defying them, as other repressive legislation has been defeated in the past. Their behaviour when Thatcher’s laws came in is enough to tell you that.
There is talk about it, of course. More than one union head has come out as saying that if the right to strike lawfully is restricted, it will only lead to an increase in unlawful, wildcat strikes. But such speeches aren’t a threat to take such action; they’re an appeal to the state to see reason, and realise that while the existing legal and collective bargaining machinery keeps the workforces in line, so that the unions can offer industrial peace, the blunt instrument of more laws only risks making it harder to control angry or militant workers.
Unite General Secretary Len McCluskey: all mouth, no trousers
Much has been made of Unite changing its rules to remove a requirement to follow the law. But this is a lot more tepid than it appears, since all it does is remove a caveat from a single clause of its constitution, which many more moderate and even scab unions don’t have in their rules anyway. It doesn’t change the fact that backing unlawful action would only get Unite’s leadership arrested and its funds sequestered, and for all Len McCluskey’s rhetoric about civil disobedience he simply isn’t about to do that.
At the same time, any call upon the Trades Union Congress to call a general strike is a wasted effort. Aside from such not being in their interests, and risking the full weight of the law, that’s simply not how the TUC works. It has no power to induce action from any of its member unions or over-rule their executive committees except in the matter of rules governing affiliation to the TUC. Most of its constituent unions wouldn’t want a general strike, and those who claim to are only sabre rattling since they too must be well aware of how the federation they are affiliated to works and that it cannot simply ‘call’ such a strike no matter how much they insist it should in their crowd-pleasing speeches.
That’s not to say that there’s nothing worthwhile in the official union response. For example, the civil service union PCS is currently undertaking a strategic review of all of its functions and structures. Nobody should expect genuinely radical change, but they are starting from a recognition that they have yet to get a turnout in any national ballot that would satisfy the new laws (more localised ballots on different campaigns have beaten the new thresholds) and that with both that fact and the union busting attacks the government has already subjected them to they need to be much better organised and to improve in the weaker areas rather than just leaning on the areas where they are strong.
This is an entirely sensible proposition, given that the union in the strongest position at present is the RMT who regularly bust through even the hurdles set to be imposed by the trade union bill. There are other unions who could certainly look at similar measures to improve their own position in such national ballots.
Building from the ground up
However, the official response from the head of the union movement still leaves us adapting to rather than challenging the new restrictions.
In terms of challenging them, the best response of course would be waves of wildcat strike action in order to defeat the law by making it unworkable. We’re a long way from such action, of course, so we need to get organised. This means building a culture in workplaces where ‘the union’ isn’t an external body or an insurance policy, but something that everybody is part of, and where workers have confidence in their own collective power to win improvements – not only on the say so of a union official but of their own volition and initiative.
An IWGB picket line
For how we do that, some good starting points include the libcom.org workplace organising guide, the recent organising strategy adopted by PCS Bootle Taxes Branch, and real-word practical examples such as the Sparks BESNA dispute, the IWGB 3 Cosas Campaign, the Ritzy living wage dispute, the Pop Up Union, Brighton Solidarity Federation’s Hospitality Workers initiative, and others.
But, of course, while we get on with what is often slow, patient and hard work, the Trade Union Bill is set to become law in the very near future and needs to be resisted now.
One good starting point for this is the branch-based Right to Strike campaign, which though starting off relatively small has some good ideas about fighting back. Crucially, while a lot of these ideas involve publicity and winning the argument against the law, the campaign also recognises that it won’t be overturned on an appeal to reason but on a show of strength from the working class.
To that end, I would argue that all strikes need to be spread into the community and supplemented by direct action on the streets in order to crank up the disruption caused. So, for example, when a Tube Strike shuts down the London Underground, road blockades should grind the roads to a halt. Or if supermarket workers go on strike, economic blockades should stop deliveries getting in or consumers bypassing picket lines.
If strikes are blocked by the courts, and particularly if the dispute is based in a public-facing employer, occupations and economic blockades should seek to cause the disruption that the courts sought to prevent. If an agency is drafting in a scab army to break the strike, they should be targeted the same way.
These are just a few ideas, and many more will no doubt present themselves in specific struggles. But the point should be that, even where we lack a rank-and-file movement willing to take wildcat action, we can still engage the wider working class in order to cause disruption and help make the legislation as unworkable as possible.
Phil, always enjoy your posts
Phil, always enjoy your posts and this one was no exception.
The only thing I might say (and this is pretty pedantic) but I would argue that this an attack on all trade unionism - meaning unionism based on registration, recognition, and representation. What we need to do is break out of trade unionism, full stop. Like I said, though, pedantic point.
This bit, by the way, was beautifully written:
Finally, just want to say that little advert from the TUC is a f*cking joke - it's as if strikes were at an all time high, then the laws would be justified. Nothing about what strikes can and have achieved, just a whiny 'Were not really causing that much disruption, so leave us alone...' Tossers.
Anyway, it reminded me of this quote from Brendan f*cking Barber from a piece I wrote a while back:
“If they [the Tories] do try and change the law the Government would run a real risk of provoking more groups of workers to think ‘We’ll go down different routes - we won’t have ballots. We’ll carry out wildcat responses.’ That would make strikes much more difficult to deal with."
Well, since then, we've had years of the Tories coming down on the unions and I haven't heard a peep from Brendan about organising those ballot-less strikes.
Chilli Sauce wrote: The only
Yeah, I agree as far as the need to break out of trade unionism goes.
My point was more that, for all the attacks the government clearly prefers having registered, legal unions (albeit extremely neutered) than no unions and the risk that workers would take struggle in different directions.
An example of this is that while the government has long since said facility time shouldn't be available for union conferences, they granted it for the Prospect union which represents civil service professional and management grades. The fact that Prospect responded to PCS's plea for solidarity with union busting by saying that they'd brought it on themselves by being too beligerent may have something to do with that.
Clearly, the most moderate and (small-c) conservative unions can be accomodated by the Tories.
All I can say about union
All I can say about union leaders talking about restrictions on strikes leading to uncontrollable wildcat strikes is: that takes me back a bit! I can remember Len Murray (leader of the TUC, 1973-1984) saying exactly the same thing about "Tory" anti-strike laws in the early 1980s.
Phil's article makes the point very well that trade unions need the threat of some level of workplace militancy to have a social role. If the level of class struggle gets too low then the TU leadership don't have a job anymore!
If we look at the proposed change to the laws on hiring agency scabs, what's really remarkable is that such legislation still exists 30 years after the Thatcher government defeated the miners. Can it really be true that an employment agency is not allowed to provide scabs to break an official union strike? Yes (right now), it is! You can't help thinking that the real purpose of this legislation is to give workplace activists the illusion that "if only we follow the union rules, we'll be able to go on strike with the full protection of the law".
Well, now it's harder to follow the rules (more ballot hoops to jump through) and there's less to gain if you manage to follow them...
P.S. Government "impact assessment" document has interesting info about employment agencies:
And I trust we're all going to take part in the "consultancy" process... ;-)
Pathetic TUC lobby comming up
Pathetic TUC lobby comming up on Nov 2nd and this goes on. Good blog from Phil and may need updating.
Short article also on the same issue here: