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Two events from 2010 abundantly illustrate the unfair double-standard to which Trade Unions are subjected.
In May, cabin crew at British Airways prepared to go on a series of 5 day strikes to protest management’s victimisation of workers who had struck in March. The planned strikes followed a ballot in which an overwhelming majority, 81% to be precise, had voted to reject BA’s offer on pay and conditions. Within a week of the announcement of this fresh wave of industrial action by the union leadership, BA had rushed to the courts to obtain an emergency injunction, citing technical errors which rendered the strike invalid. Instead of contesting the outcome of the vote, BA based its argument on a frivolous detail. Unite had apparently deviated from the letter of the law in not providing a detailed breakdown of the results to its members, failing to notify them that 11 of the ballot papers had been spoilt. Rather than eliciting a bemused look from the presiding judge, BA’s case received a solemn hearing and was upheld in the High Court, anxious that the literal meaning of the law should not be trampled on by wily trade unions. Perversely then, even though 4/5s of cabin crew (on a 71% turnout) had voted to strike, they were to be prevented from doing so on the grounds that the Union had breached their legal rights.
Also in May of that year, a much greater travesty of democracy was taking place. Gordon Brown, having delayed the inevitable for as long as possible, had called a general election and was faced with justifying his government’s abysmal economic failings to an unforgiving electorate. Naturally, the embattled Labour party was ousted from power by displeased voters, but what arose in its place was no more reflective of popular opinion than Gordon Brown’s discredited run in office. Though the Conservative Party won the most seats, no party commanded an absolute majority in the Commons. The Liberal Democrats came to the rescue, concluding a squalid backroom deal to enter into a coalition government with the Conservatives, in the process abandoning many of the vaunted manifesto commitments from which much of their support had derived.
In the run up to the election, all 57 Liberal Democrat MPs had signed a pledge committing them to vote against rises in tuition fees during the next parliament. Many of them had toured university campuses and appeared with students in pictures holding placards saying: ‘I pledge to vote against any increase in fees.’ The Liberal Democrat leader, Nick Clegg, had even gone so far as to savage the other major parties for their refusal to address student grievances, stating that his party would not only oppose tuition fee rises but ‘scrap tuition fees for good.’ Now, in the Coalition agreement, all these jeremiads against fees were glibly dispensed with, as the party agreed to await the conclusions of the Browne review into higher education, with the understanding that Liberal Democrats could abstain in any subsequent vote. 6 months later, after the report predictably called for an increase in tuition fees, over half of the party proceeded to break their electoral promise to students, with 21 voting in favour and 8 abstaining.
The contrast is as informative as it is stark. Whilst trade unions are assailed with petty legal restrictions on their right to strike, two political parties, enjoying between them 60% of the vote on a less than 70% turnout, are able to decide policies affecting the lives of millions away from the prying eyes of the public they theoretically represent. The obvious solution to a hung parliament would have been to call another election, submitting the coalition agreement, in particular the Liberal Democrat U-turn on tuition fees, to the electorate. At the end of 2009, Unite had been required to reballot its members after BA successfully argued that the original vote included 800 cabin crew who no longer worked for it. Though these votes amounted to a small percentage of those balloted (and even discounting them the result would still have been 8 to 1 in favour) Unite was forced to postpone the strike.
The Coalition government faced no such impediments as it embarked upon its 5 year stint in office. Indeed, some Liberal Democrats positively revelled in the fact that not only did they lack a democratic mandate, but were acting in ways completely at odds with the views of those who had got them elected. Vince Cable, the new Business Secretary, dismissed voters in the following disdainful terms: ‘We didn’t break a promise. We made a commitment in our manifesto, we didn’t win the election. We then entered into a coalition agreement, and it’s the coalition agreement that is binding upon us and which I’m trying to honour.’ Considering the Liberal Democrats had not won an election in the past 80 years, it was disingenuous, to say the least, to suggest the party’s manifesto commitments were only considered binding in the event of a sea-change occurring in British politics.
In the case of BA, the May 2010 injunction against striking cabin crew was eventually overturned on appeal. But the episode exemplifies the ease with which employers, through devices such as emergency injunctions, are able to stymie, if not suppress, trade union activity. The May injunction was the second directed against Unite in barely six months, and the third directed against a major transport union during the same short time-period. Bob Crow, leader of the RMT Union, which had similarly been forced to reballot its members in April because of minor discrepancies discovered in its voting procedures, summarised the legal hurdles placed in the path of Unions: ‘There’s 1,700 workplaces and over 18,000 workers that work on the Network Rail sites, and we have to at any given moment in time before we ballot, name every single grade and every work location. By the time you finish the audit it’s like the Forth Bridge – you start again because someone else has been promoted, someone else has been sacked, someone dies and so on. It’s a moving feast.’
Since the 1980s, Unions have been subjected to a plethora of intrusive laws regulating every aspect of their activities, making Britain arguably the most restrictive country in the western world for trade union legislation. One of the proclaimed purposes of these laws was to foster greater democratic accountability, but the actual effect has instead been to furnish a fertile field for the type of legal chicanery aforementioned, enabling employers to invalidate strikes on the most facile of grounds, whilst preventing unions from acting in accord with their members’ wishes. Indeed, employers have found that often the threat of invoking this vast legal apparatus is sufficient to intimidate unions into submission. Between 2009 and the end of 2011, Unions were threatened 40 times by employers with injunctions. The last year has seen little let up in this liberal resort to the courts to avert planned strike action. In June, just prior to the London Games, Unite was forced to reballot members at 3 bus operators after these companies refused an Olympic bonus to overworked drivers. A month later, the government threatened to take out a High Court injunction against a strike by border control staff, alleging irregularities relating to 12 of those balloted. With a legal system tilted against them, the scope for workers’ action to uphold their rights has been drastically diminished.
Yet despite conforming to a higher democratic standard than politicians, trade unions are regularly harangued by the press and MPs as a blight upon the land. At best they comprise a troublesome set of agitators who exist simply to inconvenience the public through periodic strikes; at worse they are a body of special interests seeking to interpose themselves between the nation and its august representatives in parliament. David Cameron gave vent to this latter, more sinister view of unions when he criticised Gordon Brown in 2010 for not condemning the proposed BA strike: ‘So the vested interests triumph and the people, including those cabin crew who don’t want to go on strike, suffer.’ Ed Miliband, speaking about the called-off strike of border control staff in 2012, appeared to regard the incident as a bothersome distraction from the impending London Games: ‘This is good news. The Games are now the priority and let’s hope they are a big success for Britain’ Oddly, Cameron did not consider BA’s management a vested interest, though it was their single-minded pursuit of profit in the form of a two year freeze on wages that had precipitated the strikes, whilst Miliband, transfixed by the glamorous spectacle of the Olympics, seemed to think that the issue of whether 8,500 civil servants retained their jobs, in the face of swingeing government cuts, was subsidiary to the successful staging of a sporting event.
This distaste for trade unions betokens an underlying sense that they are little more than interlopers on the political scene, willing to hold the nation hostage in pursuit of their petty material ends. For MPs and political commentators alike, the prospect of millions of workers acting in concert to extort concessions from the government is repugnant to their democratic sensibilities, an egregious instance of workers overreaching themselves and intruding onto the sacred ground of national politics. When the TUC voted last September to look into the practicalities of holding a general strike, it prompted a predictable barrage of enraged accusations that unions, led by labour demagogues and impelled by a grasping mentality, were bent on usurping parliament’s democratic prerogatives and inflicting economic ruin on the country. Conservative MP Dominic Raab, after calling for unions to satisfy a 50% threshold criteria in any vote on the question of a strike (a condition which, if implemented in general elections, would see many current MPs forced to vacate their seats) went on with unconscious irony to disparage them in terms that could easily apply to the coalition government and its deeply unpopular programme of austerity: ‘At the end of the day we can keep on appeasing these militant minorities, which don’t represent their own wider membership, or we can take a clear stance and protect the hard-working majority.’ Simon Heffer, writing in the Daily Mail, deemed it a ‘war on the British people’ and concluded that David Cameron had two options available to him: ‘either expose the trades unions as militants who destroy jobs and prosperity and thereby harm the interests of their members, or he can sit by and allow them to pretend they govern Britain.’ On BBC Radio 4, John Humphrys, voice straining with incredulity, asked Brendan Barber (outgoing TUC secretary): ‘Is there a possibility really of a general strike?… we haven’t had one in 86 years and then there were kids starving on the street. The world’s different, we’ve moved on.’ Resorting to strikes, in Humphry’s view, was ‘yesterday’s answer’, and would be tantamount to sending the message: ‘let’s go on strike because in that way we can force the government to do something that a lot of people think is not in the country’s interest.’ To hear the democratic authority of parliament extolled with such vigour, you’d be forgiven for mistaking its members for delegates to the Paris Commune, and not a collection of venal careerists whose disdain for their electorate is palpable.
In reality, Unions are far from being marginal organisations dominated by ‘labour barons.’ Although their ranks have undergone a significant thinning in the last thirty years, they still boast over 6 million workers (a quarter of the workforce). Neither are they the subject of public loathing that media perorations about the ‘world moving on’ would have you believe. When public sector workers held a one day walk-out in November 2011, in protest at changes to their pension schemes, a BBC poll found that 61% of people thought the action justified. Indeed, trade unions, instead of being lonely atolls of left-wing activity in a sea of overwhelming public indifference, are at the forefront of a popular movement against the government policy of savage cuts to public services. An anti-cuts day of marches organised by the TUC in October saw over 100,000 people participate from across the workforce. Interestingly, a Yougov poll from May indicated that a majority of people, ranging from 56% -74%, supported the ‘socialist’ measures introduced across the Channel by President Hollande of France. By contrast, support for the coalition, by one generous estimate, hovers at slightly over 40%, whilst support for the Conservative party – the main driver behind austerity – is a little over 30%.
Such statistics, despite the adverse media attention unions invariably attract, are unsurprising given that austerity has meant one fifth of people in Britain are now paid less than the living wage (according to a recent study by KPMG). With a parliament elected once every five years, and politicians who are free to enact whatever policies they like in the interim, regardless of manifesto commitments or the views of the electorate, often the most effective way of combating government’s undemocratic impositions is through the instrument of the strike. Unions, with their high degree of organisation and their mass representation, are one of the few groups capable of spearheading a national movement of resistance against the pretensions of MPs to speak for the many, whilst advancing the agenda of the opulent few. The strenuous efforts that politicians devote to maligning unions as ‘special interest’ groups indicates their visceral fear that workers might come to realise the strength at their disposal, and seek to act as a countervailing force to the undue influence employers exercise throughout the economy. It’s a fear reflected in the dewy-eyed appraisals, from MPs across the political spectrum, of Thatcher’s reforms. Her reign is usually interpreted as having brought an end to a tumultuous era in Britain’s history, ridding the country of the scourge of irresponsible strikes and establishing the economy on a stable basis. What she ended, however, was a system of collective bargaining which apportioned profits more equally among employers and employees. The truth of this can be gauged from the fact that as union membership has declined, so too has workers’ share of the national income, falling from 65% in 1975 to 54% in 2007.
Historically, moreover, the image of parliament as a national citadel existing amid vying factions is as fallacious as the notion that unions are the preserve of labour dictators. Parliament has always enjoyed a reverential status, but the justifications for this status have differed somewhat across the ages. During much of the 19th century, parliament’s authority was considered to derive from the fact it was an assembly representing property, elected by wealthy men with a stake in the kingdom’s governance. Gladstone in 1866 unabashedly styled his proposals for a reform of the franchise as a ‘bulwark against democracy’, incorporating the deserving segments of the working classes whilst excluding the vast majority from any say in the country’s affairs. It is only since 1928 that Britain, in a formal sense, has been a democracy. Naturally, the justifications have been adapted to reflect this gradual extension of the vote, often conceded by the powerful under duress. From an assembly deriving its authority from ‘men of property’, parliament has metamorphosed into an assembly deriving its authority from the people. The recent nature of this transformation is all too easily forgotten.
In this historical context, it is trade unions, not parliament, that have been in the vanguard of fighting for the rights of the majority. In 1842, half-a-million labourers downed tools in the first recorded national strike. They struck in support of universal manhood suffrage, eighty years before it was eventually granted following the end of the First World War. In 1889, it was dockers’ unions in London which inaugurated a new phase in labour history, as previously ignored, unskilled workers joined in the demand for a minimum wage and an 8-hour working day. When politicians rebuke unions for having the temerity to challenge government policy, or the press derides them as anachronistic organisations no longer needed in this age of tranquil industrial relations, they should remember that it has historically been the working classes, acting through trade unions, that have been in advance of those in power on a variety of issues. Indeed, modern British history is largely a vindication of the progressive ideas first advocated by unions.
But if unions have proven resilient in the face of the Thatcherite onslaught, the obstacles to concerted trade union action, possibly in the form of a general strike, are still formidable – some might say insuperable. By far the most damaging aspect of the anti-trade union laws ushered in by Thatcher was the rigid delimitation of the words ‘trade dispute’, making it unlawful to engage in solidarity strikes with other workers, or to engage in any strike that is political in intent. Workers can legally go on strike only against their immediate employers, and with regard to a specific set of workplace related grievances. Since trade unions derive their effectiveness from workforce solidarity, the ban on undertaking sympathy strikes is a severe impediment to workers defending their interests. Throughout the 1920s, unions were viewed with such alarm largely because of the Triple Alliance formed between coal, rail, and transport workers, whereby an attack on one industry by employers was treated as an attack on all. Under the current system, such a combination would be considered illegal. Moreover, whilst the right of parliament to enact sweeping laws that have manifestly economic implications for millions of people is untrammelled, the right of unions to contest this legislation is absurdly limited on the grounds this would be straying into the realm of ‘politics’. By erecting a fictitious distinction between economics and politics, the law seeks to emasculate unions.
One thing, however, is transparent. In attempting to overcome this array of legal barriers, unions cannot rely on the Labour Party, which has refused to extricate itself from the Blairite embrace of the free market in the three years since its electoral defeat. A party that was originally formed under the auspices of the TUC to advance the interests of workers, and still hypocritically receives 80% of its funding from the unions, cannot bring itself to even condemn the idea that workers must pay for a debt amassed by the financial sector. In a sight that has become all-too familiar in the last few decades, Ed Balls was heckled in September by TUC delegates for supporting the government multi-year freeze on public sector pay. The choice, he argued, was between people in the public sector keeping their jobs or thousands being fired to achieve wage increases for the rest. It would never occur to Ed Balls that this is a dilemma that could easily be resolved through a simple tax on the dividends of the banks
Tense relations between the party and the union movement of course reached their apogee with the rise of the New Labour cabal, in which the current leader Ed Miliband, rather bizarrely given the sobriquet Red Ed by the right-wing media, is firmly rooted. It’s ridiculous to expect that after 13 years during which the Labour government could not be prevailed upon to repeal stringent anti-union laws, that Ed Miliband, who has openly stated his admiration for Thatcher and his belief that cuts are necessary, will suddenly be persuaded of the case for strong trade unions and become their enthusiastic champion. As leader of the opposition, he has already shied away from relatively mild proposals to address the more outlandish features of Thatcher’s legacy. In 2010, John McDonnell proposed a Minor Errors Bill amending the law so that employers could no longer obtain injunctions because of technical errors discovered in the balloting process. As McDonnell noted, the professed purpose of laws introduced in the 1980s and 90s had been to render unions more democratic, but they were in fact being used to prevent unions from realising the democratic wishes of their members. The code of industrial balloting required unions ‘to provide, for example, the exact number of trade union members who were to be balloted, details of their workplaces and the categories of those to be balloted. It also required the union to keep meticulous records of the members’ addresses, jobs and workplaces.’ As a result, ‘Failure to satisfy any of the conditions renders the union open to injunction.’ By amending the law so that they had only to show ‘substantial compliance’ with the balloting process, the Minor Errors Bill would put an end to the barrage of injunctions unions had been subjected to. Unfortunately, the Bill was unable to muster the 100 votes required to reach a second reading. Ed Miliband and many Labour MPs did not even attend the parliamentary debate. Shadow Minister for Business, Innovation and Skills, Nia Griffith, summed up Labour’s lacklustre approach in a statement to the House: ‘I have to make it clear that although the opposition recognises the need to restore the original intention of the 1992 Act, we cannot today endorse the particular legal mechanism contained in this Bill.’
Ed Miliband is carrying on a venerable tradition. Since its inception, Labour has always looked with scarce concealed discomfort on the activities of the union movement from which it sprung. On occasion, this discomfort has morphed into outright hostility. New Labour is not an aberration in the party’s political evolution, but simply a more acute manifestation of the contemptuous attitudes that have always underlain the Labour leadership’s dealings with its rank and file. On being elected to Parliament, union-sponsored MPs readily bought into the notion, as so many politicians have before them, that weighty issues of national importance fell solely within the purview of parliament, whilst workers were better off confining themselves to purely parochial concerns. The first act of the 29 MPs returned in the 1906 General Election was to constitute themselves as the Parliamentary Labour Party. At the 1907 Labour conference, these MPs successfully passed a resolution granting them a large degree of discretion in determining the ‘time and method of giving effect’ to the decisions of the rest of the movement. Unions were expected to refrain from strikes and docilely submit to the policies of their political betters, even if those policies flagrantly contradicted the whole raison d’etre of the Labour party. When Unions breached this understanding and, in the eyes of MPs, acted improperly, the result was a vitriolic backlash directed against anarchic workers with no grasp of the fundamental problems confronting the economy. During the wave of strikes known as ‘the Great Unrest’ that swept Britain from 1911-14, Labour MPs were the most strident in their condemnations, calling for legislation imposing prohibitive fines on participants in illegal strikes, and requiring workers to give their employers 30 days notice before withdrawing their labour. When Ed Balls voices his worry that Tories are ‘itching to provoke a row about strikes’ and the unions are unwittingly playing into their hands, he is merely articulating a long-standing Labour position. Unions are viewed as serviceable only insofar as they assist Labour in getting elected. When they go on strike, or do anything to incur the ire of the conservative press, they are seen as an embarrassment and accordingly denounced.
Unions, however, are not alone in recognising the gross inequity of our legal system. Britain has repeatedly been reproached for failing to live up to its international obligations and protect the right to strike. The European Committee of Social Rights, which monitors Britain’s compliance with the European Social Charter, has found that the UK is in breach of 10 of 13 obligations. In particular, the Committee thought that the requirement for unions to give notice of a ballot to strike, in addition to giving notice of the strike itself, was ‘excessive.’ Indeed, given that the point of strikes is to exert pressure on employers, this law seems designed to dull their effect by allowing companies time to prepare contingency measures.
More importantly, leading labour lawyers John Hendy and Keith Ewing have pointed out that the UK is signatory to ILO Convention 87, which enshrines the right of unions to engage in political strikes protesting government policy. In recent judgements, the European Court of Human Rights has acknowledged that the European Convention on Human Rights, to which the UK is also signatory, should be interpreted in accordance with relevant ILO Conventions. If unions resolve to hold a general strike, one important route they might pursue in the event they face opposition from the British courts is an appeal to the ECHR. The alternative would be attempting to demonstrate a simultaneous ‘trade dispute’ within each of the thousands of workplaces represented by unions in order to justify a strike on a national scale – something which is evidently impractical and would soon become mired in legal difficulties.
The law is ultimately a malleable instrument, and should the majority of unionised workers come out on strike, it is likely the courts will be forced to acknowledge this fact or risk appearing impotent. The success or not of a general strike, however, will in the last analysis depend on the strength of the union movement’s resolve to combat government imposed austerity. There are many who are pessimistic, and argue that unions are so reduced in strength by thirty years of attrition that they are simply unable to mount an effective resistance. Moreover, history does not exactly furnish an inspiring record on this count. As critics are quick to gleefully point out, the few occasions on which governments and unions engaged in great trials of strength have often ended in the latter’s defeat.
It is frequently forgotten, though, that many of these battles were fought on singularly adverse terms by the unions. The origins of the 1926 general strike, so gloatingly cited by detractors, can be traced to July 1925, when Prime Minister Stanley Baldwin agreed to provide a 9 month subsidy to the coal industry rather than risk the miners taking industrial action. There followed a period of intense government activity, including the stockpiling of coal and the organisation of a reserve force of workers, in preparation for the inevitable face down with the unions that ministers knew must come with the expiration of the subsidy. Similarly, the 1984 miners’ strike was preceded by a period of intense government planning that extended to the reorganisation of the police as a mobile, strike-breaking force.
Significantly, the unions have often been betrayed by the temporising counsels of their own leaders who, time and again, have recoiled from the looming prospect of victory as though in fear of the revolutionary repercussions a defeat of the government would unleash. Contrary to myth, the 1926 miners strike did not fail because of a dearth of support among the rank and file, but because union leaders unilaterally decided to end it without even an assurance from ministers that they would enter into negotiations. The day after it was officially called off, 100,000 more workers joined in the strike. In 1984, the miners were left largely to fight alone because TUC officials refused to sanction solidarity action to halt the closure of the pits. Despite this, 150,000 miners were able to hold out for a year before finally being forced back to work. Indeed, it is a remarkable testimony to the camaraderie of the miners that they were able to last for as long as they did.
History furnishes depressing examples of defeats, but it also shows that the full might of the union movement has never truly been brought to bear against its adversaries. Whilst unions are undoubtedly weaker today than at any point in the past 100 years, the resources they can marshal are nonetheless impressive. The greatest threat to their effectiveness is perhaps neither government nor a hostile press, but their own internal dissensions and doubts.
Joseph Richardson is a freelance journalist in London. He studied history at Merton College, Oxford. His blog can be found here: josephrichardsonblog.wordpress.com