The right to join a trade union, and the right to strike, are as fundamental as free speech. If you don’t have them, you’re not an employee but a serf, and a society that outlaws strikes isn’t free. That’s not a left-wing view. Conservatives believe it, too (for Poland, anyway). Where individual bargaining power is weak – perhaps because the employer is a quasi-monopoly purchaser of an employee’s particular skill, as London Underground is of Tube-driving skills – collective bargaining power is all that employees have.
Yet we have allowed governments and the courts to make strikes, in effect, illegal.
Last month, the courts ruled against a proposed strike on London Underground by the rail union RMT (although the drivers’ union, Aslef, did hold one). Now, the lecturers’ union Natfhe faces a long, expensive struggle to overcome the legal obstacles to a proposed one-day strike over pay on 1 May.
There is no right to strike in British common law, but for most of the last century that did not matter. After the 1906 Trade Disputes Act the right to take industrial action was based on immunity from prosecution. You could not be sued for the company’s loss, so long as the strike met certain criteria. In recent years, these criteria have been tightened like a noose.
Striking was still legal at the end of the 1980s, though only just. Strikers had lost their rights to unemployment pay or income support. Their families might get the latter, but would have deducted from it an amount which, the law assumed, they received in strike pay (even if they didn’t). So indefinite strikes have been almost unheard of for years.
But a legal minefield was also laid around unions, making even a one-day strike very difficult. Unless they executed every step by the extremely complicated book, they risked losing everything they had when they were sued by an employer, an aggrieved union member or someone who could claim to have been inconvenienced by the strike.
It became illegal for any group of workers to strike in support of any other group. This was called secondary action, and the courts interpreted it widely. In 1998, the public sector union Unison wanted to strike to get agreement that its members’ pay and conditions would not be reduced when an NHS trust’s services were privatised. The court ruled that the strike was a form of secondary action, because nobody knew who the new employer would be.
From 1992, the law required ballots before industrial action. When Aslef, trying to organise a strike of its members in Thameslink, accidentally sent ballot papers to a handful of train managers (who are not Aslef members) the strike was banned because the ballot was not conducted properly.
But the killer blow came in 1994, when Natfhe proposed – just as it does today – to call college lecturers out on strike. Blackpool and the Fylde College, acting as a proxy for the Colleges Employers Forum (now the Association of Colleges), claimed that the law required the union to give the employer the name of every person to be balloted. Natfhe protested that this put its members at risk of victimisation.
Natfhe lost. The strike was called off. The colleges then tore up contracts, turned thousands of lecturers into casual, hourly-paid staff and dragged pay down to some 10 per cent below what schoolteachers get.
Labour agreed that some people don’t want their employers to know they are union members, and that they have a right to such privacy. So in 1999 the government amended the law to make it unnecessary to give names, so long as the union told the employer the number, grades and workplaces of all members to be called out.
On 4 January this year the RMT wrote to London Underground that it was balloting all its employees who were union members “in all categories at all workplaces”. There were “approximately” 4,938 of them. London Underground said nothing for three weeks. But, on 25 January, the union told the company that members had voted overwhelmingly for a strike. Then, and only then, London Underground wrote triumphantly: “You have failed to provide any information on the separate categories or workplaces of your members when . . . [London Underground] has over 40 groups of station, over 20 train depots, as well as separate signalling operations.”
RMT, like most unions, does not have that detailed information at its headquarters. The company went to court, and Mr Justice Gibbs granted an injunction to prevent the strike.
Natfhe faces the same problem. Many colleges have several sites. After years of casualisation, at least one-third of the members in most colleges are part time. The union has written to branch secretaries asking for details of how many members work at which sites. But it cannot be optimistic about the outcome: a determined employer who can afford top lawyers is likely to pick holes in the resulting list, and Natfhe may be forced back to giving names.
There is one way round the problem. A union whose members are on checkoff – where subscriptions are deducted from wage packets by employers – does not have to provide this information, because employers already have it. But, for Natfhe, the colleges put a prohibitive price on continuing checkoff. If you withdraw checkoff facilities for the union, you are likely to make it virtually impossible for the union to organise a legal strike.
So there’s a project for the second term of a Labour government. Give the people back their right to strike. It won’t appeal to the Daily Mail or Middle England, but Britain won’t be a free country again until it’s done.