by Gregor Gall
professor of industrial relations at the University of Hertfordshire
The High Court decision to grant British Airways an injunction against Unite’s 12-day strike, was as Unite said, “a disgraceful day for democracy”. The will of 92.5% on an 80% turnout of 12,000 workers was struck down in a single moment by a solitary judge.
Although employer applications for injunctions are well down on the mid- to late 1980s, in 2009, there were 10 other injunctions applied for by employers, with another 14 in the previous three years to this.
On top of these, employers faced with industrial action regularly make threats to apply for injunctions with 40 such examples of threats made in the three previous years.
In the vast majority of cases, the injunctions were granted and the threats taken as real. The consequence was that the actions did not take place.
Applications for – and threats of – injunctions are made on the basis of the onerous laws governing industrial action ballots. This means there are statutory obligations to provide employers with notices of a) balloting, b) who is to be balloted, c) ballot results, d) the action and e) those taking action.
If unions do not stand down from their proposed actions once injunctions are granted, they are in contempt of court, and open then themselves up to fines and sequestration of assets.
The law’s employer-favouritism is revealed by employers being given the opportunity to do all they can to offset the impact of an action by taking remedial measures because of the statutory requirement to give seven days’ notice of action.
Moreover, as injunctions are only temporary orders indicating that the employer had an arguable case, the parties are supposed to come back for a full hearing revisited by a full hearing later on. Of course, they almost never do so, as the employer already has what it wanted – an end to the proposed action or action itself.
On top of this, the law is so complex and demanding that the ground for applying for injunctions is vast. Normally, as in the BA case, it concerns the nature of the ballot and the balloting process.
The recent injunction granted to BA makes all this even worse. This is because the judge set two new legal precedents.
First, by taking into account the level of disruption ensuing from the action as a factor in her decision. This has no basis in existing law and the logic here is that only those strikes that are ineffective will be allowed to go ahead. This will be of particular concern to Aslef, CWU, RMT and Unite because their members have the power to take action that has an immediate impact and the services affected are not readily replaced by others.
Second, the technical competence of balloting is now based on whether all those that voted for action are the same as all those that take action. The judge agreed with BA on the significance of the 800-900 staff that were balloted but were then leaving the company. This could mean that if there is any movement in numbers between those balloted and those taking action – induced deliberately by an employer or not – a strike ballot can be declared unlawful.
With a likely Tory government in a few months time, the screw is going to be turned even tighter on workers and their unions here. If elected, the Tories will legislate so that lawful ballots for industrial action comprise only those where the majority of all those entitled vote voted for action. This mean those that do not vote will be counted as no votes. They will look at legislating a ban on strikes what they deem are ‘essential services’.
With little hope for the return of a Labour government, and none of a Labour government prepared to repeal the anti-union laws, unions must now start thinking of strategies to defy and get round the law.
The obvious parallels are the 1970s and 1980s. In the early 1970s, the Industrial Relations Act 1971 was made a dead letter through mass defiance and huge political campaigns. When Labour returned to office in 1974, it repealed the Act. This was made possible by a self-confident and assertive working class.
By contrast, the language of an attack on workers and democracy was the same in the 1980s but the collective action was not. In the first Tory government of 1979-1983, the talk was of mass civil disobedience and widespread industrial action to repeal the 1980 and 1982 Employment Acts.
But the huffing and puffing came to nothing as the defeat of Labour in 1983 saw the birth of ‘new realism’ – essentially do not rock the boat in order to help Labour get re-elected. With a new Labour leadership under Kinnock and Hattersley, the miners and printers did not receive full and unequivocal backing when they fought back. They were defeated as they fought on their own, hemmed in and shackled by anti-union law.
It’s too much of a task to click one’s finger and recreate the early 1970s today. But drawing the lessons and disseminating them is the first step to try to do so.