High court ruling scuppers BA strikes – another nail in the coffin of the 'right to strike'

In a sign of how cynical the tactic of using technicalities to close down strikes has become, BA's objection rested on the union's obligation to announce “as soon as possible” the results of the ballot, in terms of the number of yes and no votes and spoilt ballots. In a move that places even more hurdles in the way of lawful strike action, the high court judge accepted BA's case that the strike was unlawful because the results of the ballot had not been announced by Unite to each member by post, rather than through their website and union noticeboards, as is common. Unite argued that BA was unable to find a single member of cabin crew unaware of the outcome, to no avail.

Like BA's previous successful injunction against strike action by its employees over Christmas, the technicality it is disputing could in no way affect the mandate for strike action that has been presented by cabin crew. 81% of members voted in favour of strike action on a turnout of over 70%. Instead, a clear message has been sent to employers that no matter how large or clear the vote for strike action is, the most trivial of technical points can be used to halt strikes.

A new employers' strategy

Over the past year, the tactic of seeking high court injunctions against strikes on the basis of technicalities has been refined to an art by employers. Following the successful injunction granted against a strike called by Unite at Metrobus in London in July 2009, which again concerned the letter of the law on how to announce a strike not being followed, employers have taken out a number of injunctions with broad success. Over the past five years, over 30 such injunctions have been sought, and all but one have been granted.

These rulings have further stacked the law in the favour of employers. The wave of anti-strike legislation throughout the 70s, 80s, and 90s was bad enough. It primarily aimed to conclusively outlaw secondary action and ban workers from calling strikes in mass meetings on the shop floor, and was coupled with an employers' offensive and the destruction of much of industry in the UK, leading to defeats which the working class has still not recovered from. While many on the left and in unions complain that the labour government never met the promises it made in opposition to repeal the anti-strike laws, in reality it has strengthened them, as described by Martin Mayer of United Left:

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 legislation 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.

The most high-profile injunctions we've seen recently have concerned on the one hand the union's record-keeping in terms of membership and on the other its announcement of strike ballot results – either to employers or its members. The strike by Network Rail workers was ruled unlawful because the ballot, as conducted by a third part hired by the RMT union, included workers who had left their workplaces or changed jobs without informing the union. The 12-day Christmas strike at British airways was declared unlawful because the union had balloted members who had accepted redundancy, although the letter of the law also states it would have been unlawful not to ballot these workers. The union is obliged to provide detailed and accurate information of this kind to allow employers to prepare for strike action, though of course employers are not obliged to provide information about staffing to the union, basically giving them a permanent advantage – Network Rail, for instance, can move its signalling staff as and when it pleases, meaning the union's records will never be 100% accurate.

On the other hand they have concerned the announcement of results, which allows bosses to prepare for strike action and gives the time to scrutinise the information for the kind of discrepancies described above.

But what these rulings demonstrate is that the right to strike doesn't really exist in the UK anymore, because they impose an onus on unions and consequences which don't exist for other kinds of organisations. It is unimaginable, for instance, that a council could be prevented from collecting its council tax payments due to inaccuracies in its database of residents, or that the results of the general election could be annulled due to irregular voter registration (which certainly does happen – evidence of electoral fraud arises at every general election, including this one.) In this way, smaller organisations with smaller resources like trade unions are obligated to meet higher standards of record-keeping than exist elsewhere.

The ability to gain these kinds of injunctions is a gift to employers because it keeps the right to strike, enshrined in International and European law there in theory, while outlawing it in practice. The right to strike is enshrined in the International Labour Organisation's Convention on the Right to Organise and Bargain Collectively, ratified by Britain, The Council of Europe's Social Charter, ratified by Britain, and the UN's International Covernent on Economic, Social and Cultural Rights. In theory, Britain meets those requirements, in practice, any strike can be outlawed.

Employers are aware that even the threat of an injunction can draw out the organisation process of calling strike action, further demoralising workers, as was the case at Manchester Metropolitan University recently.

The Unions and 'Anti-Union' Laws

Its worth making a point at this stage in case we are mistaken as arguing from the perspective of defending unions' rights. Unions are of course inconvenienced by this state of affairs, but on the other hand complex anti-union laws give them more scope for frustrating the initiative of their members. Whether or not the unions 'want' to impose anti-union laws is irrelevant, in practice they either have to do that or have their funds sequestered, any union which openly and flagrantly defies the laws will lose its right to protection from litigation and will be destroyed through the courts.

Union leaders will even invent laws that don't exist to frustrate independent action by workers defending their interests. For instance, during the Visteon occupation at Enfield last year, Unite bosses urged workers to end their occupation on the grounds that it was illegal. Ex-workers at Ford-Visteon Enfield have described being terrorised with stories of how riot police would raid the factory and they'd be sent to prison for their occupation. In fact, squatting is not illegal and they faced no such risk.

What matters is whether workers are able to struggle in their interests effectively, and what tactics allow that to happen.

I broke the law and I won

All of this paints a bleak picture – the inability to legally strike, unions losing any vestige of being organs for struggle and taking on the cowed, corporatist role they have in China, or held in the ex-Soviet countries.

But unions are permitted to exist within capitalism for a reason; they function as a pressure valve, allowing anger and militancy to be channelled down restricted, legalistic paths. Unions are able to represent workers to the employer, and negotiate the cost and terms of their labour. The only other alternative form conflict can take is workers organising their own action through mass meetings, without official union mandates.

We saw a glimpse of what this looks like during the wave of oil industry walkouts last year. Though there is no definitive split between the 'workers' and the 'union' in cases like this, with shop stewards often taking leading organisational roles, the strikes worked without a legal mandate and ignored every piece of anti-strike legislation since the 20s. There was no ballot, and secondary action took place on a huge scale. Whatever reservations we may have about the initial motives behind the strikes (which are best addressed here), they showed that it is possible to take successful, large scale illegal industrial action without repercussions. There have been a number of wildcat strikes at the Royal Mail in recent years too.

It is entirely possible that should there be enough of an appetite for action amongst workers in the coming years, we may see more action of this kind. After all, in countries where striking is illegal, such as China, it happens frequently on an illegal basis. On the other hand it is entirely possible that we could see a demoralised and cowed working class incapable of breaking with the unions and the official restrictions on strike action which now prevent it from taking place. Either outcome is possible, but only one stands any chance of fending off the massive attacks on our living conditions which are in the pipeline.