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Trade unions and the law

Last Saturday saw the launch meeting of the new Campaign for Trade Union Freedom, created by the merger of the Liaison Committee for the Defence of Trade Unions (LCDTU) and the United Campaign for the Repeal of Anti-Trade Union Laws. And yesterday saw the launch of the People’s Assembly initiative, aiming for a mass public meeting on June 22nd, backed by UNITE, PCS, NUT, Aslef, CWU, NUJ, RMT, TSSA, and, suprisingly, UNISON.

So this is an opportune moment to consider the political and social strengths and weaknesses of the trade union movement. Personally I am firmly convinced that the cause of organized labour is the fundamental bedrock of progressive politics; it is not only a source of empowerment and self-organisation, but it also instrumental in creating communities of solidarity, which provide the ideological counterpart to the individualism and social irresponsibility of unrestrained capitalism.

There are three questions to consider: what is the current relationship of trade unions with broader society; what are the political objectives consistent with promoting the interests of trade unionism; and what is the current ability of trade unions to organize and prosecute the interests of their members by industrial means.

This is beyond the scope of a single article, but let us start with the question of the legal environment that trade unions operate in. I will therefore come back to detailed consideration of the People’s Assembly on another occasion. However, as the People’s Assembly is topical, it is worth noting in the meantime Hopi Sen’s questioning of the what the union’s seek to achieve through the People’s Assembly here; the dissecting of the politics of those left luminaries behind it by Dave Renton here; and the judgement of Freddy Gray from the Spectator, who makes the perhaps valid observation that

“The old guard – the Ken Loaches and Polly Toynbees – want a Ukip of the Left, a party that pushes Labour away from centre. Young radicals like Owen Jones want to bring back popular left-wing dissent, they are all muddling up their own anger at the failure of the left with the public’s hostility to the political and media class in general. They don’t see that they are part of the problem”.

Discussing the People’s Assembly, Dave Renton makes the interesting contrast between the inevitably choreographed and ultimately disempowering format, with the vibrancy of the Blacklist Support Group:

The choice of the venue [for the People’s Assmbly] determines the method: Westminster City Hall is a huge public forum seating 2500 people. There are not 50 separate halls there capable of hosting 50 separate conversations all then feeding back to a single, main event. The “conversation” has to be orchestrated, pre-scripted, and controlled. … … …[in contrast] I spent Saturday at a meeting of the Blacklist Support Group (BSG), where the word “rank and file” was used repeatedly, and in a way that chimed with the group’s authentic politics. There were two General Secretaries at the BSG, but they were repeatedly challenged and had at times to fight for their audience. … There was nothing cosy about the BSG meeting; the atmosphere was very different from the top-table love-in I expect of [the People’s Assembly]

Returning to the launch last week of the Campaign for Trade Union Freedom, it is worth noting that the sentiment is widespread in the movement that Thatcher’s anti-union laws have debilitated effective industrial action; and that the failure to repeal those laws by the last Labour government was a betrayal. For example, Carolyn Jones argues that:

Weaker unions meant bigger profits. Barbara Castle and Edward Heath failed. Thatcher was more successful. She wanted to reduce the welfare state, privatise public services (rail, post, gas, electricity, telecoms) and replace Britain’s manufacturing base with an unregulated financial sector.

To achieve her aims she needed to disarm the only force able to resist such draconian measures – the trade union movement. In a systematic, step by step programme of legislative changes Thatcher shackled the unions with ballots, injunctions, internal elections, restrictions on strike action, banning of solidarity action and the decentralisation of collective bargaining from national to enterprise level.

The result was devastating and debilitating and continues to impact on how unions operate. The numbers of people covered by a collective agreement negotiated by a trade union has fallen from 82% in 1980 to around 28% today.

Of course there are elements of truth in this account, but it is also problematic and selective:

The decline of trade union density and membership cannot be ascribed mainly to the legislative environment. Indeed, it is debatable whether the destruction of manufacturing was actually deliberate by Thatcher, or rather the foreseeable but secondary and largely undesired result of economic policies designed to push up unemployment to restore labour discipline, without appreciating the degree to which Britsh manufacturing was of marginal viablity in such an environment. Nevertheless, the biggest drop in trade union membership is attributable to deindustrialisation, not due to people leaving the unions . Indeed even the removal of the pre-entry closed shop is secondary to that, as the industries in which that system prevailed have now largely gone; and some industries which did have a closed shop which have survived like gas and electricity, or train driving – still have high union density.

But let us look at a contrast from history. It is commonplace to regard legal intervention in trade unions as a current phenomenon, and to describe the period prior to 1980s as the golden age of unregulated voluntarism, (for example, see Dickens and Hall, The Changing Legal Framework of Employment Relations, in the standard textbook Industrial Relations, Theory and Practice), this was not really the case.

The Trades Disputes and Trade Unions Act of 1927 was at least as onerous as the current law in many respects: it outlawed any strike whose objective was to influence the government, where the objective was not limited to the particular trade of the strikers, or where the effect of the strike was to cause disruption to the community; it restricted picketing more than the current law does, and it forced all unions of civil servants and government employees to sever their links to the TUC and with private sector unions (See, British Trade Unions, Barou, 1947). According to the solicitor, W H Thompson, writing in British Trade Unionism Today, GDH Cole, 1938, “Trade Union leaders are aware that the right to strike on any large scale, is now hedged about with highly perilous restrictions

This legislation was repealed by the radical Labour government of 1946, but while it was in force total union membership rose from 4.4 million in 1932 to 6.2 million in 1939, and to 7.8 million by 1945.

This is evidence of three interesting propositions: firstly that trade unionism could grow even in a hostile and inhibiting legal environment; secondly that the deregulated post-war period now regarded as normative by many labour movement activists was arguably atypical; and thirdly that the conditions which saw the anti-union legislation simply repealed were extraordinary ones where senior trade union figures were in government, and there had been a sea change of political opinion and social attitudes in favour of working people.

The prevailing legal and political climate even during the high years of deregulation and free collective bargaining between the war and 1980 was shifting. Not all unions were hostile to legal intervention into employment law, NUPE for example was a long term advocate of a statutory minimum wage, against the opposition from other unions. . In particular, the repeal of Edward Heath’s Industrial Relations Act 1971 by the 1974 Wilson government, although total, was contextualised both by statutory incomes policy, and the underpinning of a legal floor of employment rights, through the 1974 Health and Safety at Work Act, the Employment Protection Act 1975, both of which were negotiated through the TUC; and via law introduced against sexual and racial discrimination.

In particular, note that the restrictive 1971 law did not prevent the NUM winning in 1972 and 1974, and it was defeated by defiance; which was also how the Pentonville Five were freed. Yet just a few years later the miners failed to defeat Thatcher. During the great miners’ strike of 1984 to 1985, one left wing group raised the slogan “Turn Orgreave into Saltley”, referring to a success of mass picketing and solidarity action in 1972, and invoking the same spirit for the mass pickets at Orgreave in 1984. It was a beguilingly simple idea, but one that already seemed to have come from an entirely different era.

There had been a massive social change that was partially obscured by the rise of the left in the Labour Party in the early 1980s. Collective bargaining was predicated upon the conditions of the long post war boom, and assumptions of economic viablity that no longer obtained; union strength was sectional, and the pre-entry closed shop often obscured low levels of member engagement. Added to which there were twin political crises of labourism, as the progressive social aspirations of the Croslandite traditional right were undermined by the economy, and the left adopted a programmatic approach that appealed to too narrow a section of the community to ever win a general election. What is more, as Eric Hobsbawm observed, there had been a fracturing of the shared experience of working class life that had hitherto reinforced class consciousness and solidarity.

The Thatcherite trade union legislation therefore occurred in a context where there had already been a substantial political shift, and change in social attitudes to trade unions, and a reduced interest in collectivity. In essence the Tory laws comprised legal restrictions on calling industrial action, interference in union internal governance, dismantling of statutory support for collective bargaining, and the end of the closed shop and the outlawing of solidarity action.

However, two things should be noted. Firstly that most of the restrictions were against collective rights, but despite some curtailment, most individual employment rights were left intact, for example, protection against unfair dismissal, protection against discrimination, equal pay, redundancy payments, time off for trade union duties, maternity leave and pay, etc. Secondly, the approach of the Conservative government was mediated by countervailing EU regulation and rulings of the European Court of Justice.

This meant that increasingly, workplace rights were individualised and underpinned by law, whether from Westminster or the EU, but also that the only people who perceived the law as being specifically hostile to trade unions were those already convinced of the merits of collectivism, while the law hampered their ability to demonstrate the advantages of collective action to persuade others. Increasingly individual union members saw membership as an insurance policy at work; and during the 1980s and 1990s a number of unions “modernised” to adopt a servicing model to meet this expectation, downplaying workplace organisation and professionalising case work.

The political trap set for the unions was that campaigning against the Tory laws was likely to be seen as special interest pleading, even among most trade union members. Furthermore, the shift in social attitudes and increasing reinforcement of individual employment rights by law made calls for “anti-union” laws to be completely scraped seem increasingly anachronistic.

There is no doubt that Tony Blair’s government failed to meet the expectations of many trade unionists in this area. Len McCluskey speaks for many when he writes

Thirteen years of Labour standing still on trade union rights has led the way for the Tory led Coalition restart their attack on employment rights just where they left off and we are moving backwards once again.

But the sense of betrayal is at least overstated, Labour did not stand still. Three major Acts were introduced, the Employment Relations Act of 1999, the Employment Act of 2002 and the Employment Relations Act of 2004, all of which made things better. It also introduced the Minimum Wage and the Working Time Directive, abolished two tier workforces and gave a statutory route for trade union recognition; it reduced the qualifying period for unfair dismissal (extending cover to up to 2 million additional workers); gave rights to workers on fixed term contracts against unfair dismissal, raised the cap for compensation for unfair dismissal; provided the right to be accompanied by a trade union official for grievances and disciplinaries; extended maternity leave and introduced paternity leave. It also brought in the Equality Act 2010.

What New Labour did was further reinforce the assumption that the law is there to provide individual protection; rather than rely upon unions to enforce improvement through collectivity. This has become the prevailing common sense in society, including among trade union members. Those unions who operate on a servicing model effectively provide affirmation of this assumption, and even unions adopting the organizing model still provide the day to day service to individual members, though they prefer to do so through workplace reps rather than union officials.

So let us look at the most pernicious aspects of the law deriving from the Thatcher era, and the need for reform, while recognizing that the political context remains unfavourable for root and branch legal change to support unions. Reform of the law in the interests of unions is never going to be won on the picket line, but only through political lobbying; and therefore some cognizance needs to be shown to the electoral acceptability of the proposed reforms.

The balloting regime before industrial action is overly onerous and technical; but even though legal challenges have occasionally been upheld on absurd grounds, this is still the exception. Unions now use balloting itself as a form of industrial leverage over employers, especially as they usually ballot only when a Yes vote is expected. In 2011 there were 994 ballots, but only 59 resulted in a No vote. This was certainly not the original intention of the legislation, but unions have adapted to the environment, and notwithstanding the occasional fiery conference rhetoric there is no real appetite to return to a show of hands in the car park. Indeed, decoupling the need for rationalization to make the law more workable from the grandstanding bravado might help to detoxify the issue in the political arena.

The law on secondary or solidarity action can create anomalies, and the scope of the legislation is broader than it needs to be. But rather than raise the spectre of the return of flying pickets, the argument is best directed to the need to reform in the obvious cases, for example, wholly owned subsidiaries of a parent company, or cases where one company is used as a pay comparator for another company in the same sector. We should recognize that it is not primarily the law holding back the floodgates of solidarity action; it is the reality of trade union consciousness and the level of confidence on the ground.

The regulations on picketing have not in recent years caused any real controversy. Several industrial disputes have seen mass protests at the gates, without the regulations being invoked; and the police have been largely uninterested. This also reflects a shift in trade union strategy where enforcing a 100% withdrawal of labour is seen as less significant than it was; because the political and commercial pressure on a company can be exerted even with a few scabs inside; this has lowered the temperature on the picket line.

With regard to government interference in union governance, there is no real going back.

Currently we have a serious fight on, to resist further Conservative restrictions on workers’ rights, particularly the fees being introduced to inhibit people enforcing their legal rights through tribunals, and the attacks on facility time in the public sector; we also have a major task in posing a credible alternative to austerity, and opposing the effects of spending cuts.

If the trade unions correctly position ourselves at the centre of resistance, in a way that is not just seen as special interest pleading, but also representing an alternative and better way based upon social solidarity, then we can win the argument that the law needs to be changed to make the progressive role of trade unions more effective.

But equally, the history of trade unions has always been adaptive and we have responded to changing social and legal restrictions. There is no prospect of just turning the clock back, and the extention of trade union rights needs to be calibrated to political and social reality. Of course unions can shape that reality, but real change is much more likely to be achieved by identifying the most urgent technical reforms that will help us organise, and negotiating them quietly with Ed Miliband through some sort of Warwick agreement.

There is a danger here. If some union leaders want to use this issue to beat up the Labour Party, all they will get is a beaten up Labour Party. Tub thumping rhetoric unaccompanied by ability to deliver may make you the most popular and left wing person in a room of trade unionists, but it will not lead to any real progress.

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