Astonishingly the near-insurgency conditions prevailing today in France aren’t just because Sarkozy intends to raise the retirement age to 62, but mainly because his proposals to reform the social contract are being imposed without consultation – in practice, without negotiation with the unions. The trade unions are seen in France as the bulwark and defender of citizens’ social rights as well as protector of the interests of their members within a capitalist system. Who performs that role in the UK, especially since New Labour collaborated with the Conservative enemy in repressing the unions (never forget Blair’s boast that we have in the UK the most restrictive trade union legislation in the Western world)?
This vacuum is the overriding flaw in the social contract (if indeed there is one) in this country. It is a yawning gap that urgently needs to be filled. A very small initial effort is being made today to open up this question in the House of Commons through John McDonnell’s Lawful Industrial Action (Minor Errors) Private Member’s Bill. The Bill seeks to remove some of the most restrictive and damaging burdens facing trade unions today.
Under Thatcher union immunities from breach of contract in going on strike were greatly reduced and complex procedural requirements were put in place, particularly on ballots and notices. The law still requires unions to keep exact numbers, workplaces and categories of members to be balloted and to keep meticulous records of their members’ addresses, jobs and workplaces – a requirement made more onerous by privatisation, contracting out, and outsourcing of departments within individual companies. The effect has been to create a series of traps and hurdles almost impossible to avoid.
In Metrobus v UNITE in August 2009 the Court of Appeal overturned a 90% UNITE ballot vote in favour of strike action on the grounds that the union “had not acted as soon as reasonably practicable” in giving bosses the ballot result even though the union received the result on 2 August and informed Metrobus on the 3rd. In May 2010 in Johnston Press v NUJ the union had to abandon a strike of journalists when the employer claimed to “employ no journalists” even though the Johnston Press website states the company employs 1,900 journalists.
In BA v UNITE in December 2009 BA cabin crew voted to strike by a margin of 92.5% on a ballot turnout of 80% of 12,000. BA then got an injunction from the court on the grounds that the ballot included an unknown number of members amongst 811 crew who had since taken redundancy even though if all 811 had been members and had all voted for strike action, the vote would still have been 91.5% in favour of action. At a later stage in this dispute union members were prevented from striking on the grounds that they were not notified of 11 spoiled ballot papers, even though they had voted by an 81% majority for industrial action in a democratic ballot.
There are multiple such examples of legal chicanery. Today’s Private Member’s Bill, if it is not talked out, aims to ensure that as in electoral law the outcome of an election cannot be challenged if conducted substantially in accordance with the law and the omission did not affect the result. That is an essential first step, but there is still a long, long way to go to give trade unions the proper democratic role they should have in a modern society.