One of the leading specialists on UK labour law, John Hendy, QC, is often quoted as saying “collective bargaining without the right to strike is little more than collective begging.”
On Wednesday in the Court of Appeal, Hendy tried in vain to defend the CWU against a Royal Mail injunction aimed at stopping postal workers striking in protest against unilateral changes by their employer to previously negotiated agreements.
Despite the CWU securing a turnout of 76% in the ballot and a massive 97% vote (83,704 yes; 2,426 no) in support of action, the Court ruled against the union. But why?
Alongside comments about disruption to general election materials and Black Friday online orders, the High Court case turned on a particular aspect of UK law. Since the introduction of the Trade Union Reform and Employment Rights Act of 1993 all ballots for industrial action must be by postal vote.
Arguing the case for Royal Mail, Bruce Carr QC told the court: The union “consciously and deliberately interfered in the balloting process in order to achieve maximum turnout and a maximum vote.” (Carr was appointed by the Conservatives in 2014 to conduct a review of industrial action laws which had to be abandoned in the “progressively politicised environment in the run-up to the  general election.”)
This was on the basis that union officials had asked members to take their own ballot paper from the sorting frames, vote and film groups of them posting sealed ballot in the local postbox. Hendy however, argued that there was no interference and that “legitimate partisan campaigning” by the union for a yes vote was not unlawful.
In his judgment, Justice Swift held that the union “subverted” the law requiring postal balloting by encouraging members to open their ballot envelopes at work. He said: “This was an interference that was accurately described as improper. Strike ballots should be postal ballots. Each voter should receive a voting paper at home. What CWU did was a form of subversion of the ballot process. It was an interference with voting.”
Laws on Balloting
So where did it all go wrong? The introduction of these rules is a good example of the legal red tape which so often prevents unions taking lawful action. The chronology of ballots highlights how the law has been repeatedly tightened to shackle union action under cover of ‘giving unions back to their members’ and ‘controlling over-powerful trade unions.’
First, under Thatcher, money was offered to encourage unions to ‘voluntarily’ ballot their members. Then they made ballots compulsory, then secret, then at every workplace, then by post only. Now, the very complexity of the balloting process provides scope for challenges to democracy like that in the CWU case.
In the past, attempts have been made to hold back the tide of anti-trade union laws. In 2008 the Institute of Employment Rights, the Campaign for Trade Union Freedom and John McDonnell attempted to change the UK’s draconian framework of trade union laws by introducing a Trade Union Freedom Bill into the House of Commons.
Shamefully, it failed to receive the support of New Labour and did not reach the statute book. Two years later, and again with the help of John McDonnell, the Lawful Industrial Action (Minor Errors) Bill was introduced in Parliament. Again, the aim of the Bill was to stop the democratic decisions of workers being overturned by judges. Again, the Bill failed to reach the statute book.
Yet the UK is in breach of international laws ratified it itself has ratified. The right to strike has been established in international law for decades, enshrined in Article 11 of the European Convention on Human Rights and elsewhere.
As a member of the International Labour Organisation, the UK is obliged to uphold the right to strike. As recently as 2017, the United Nations’ Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, reminded member states – including the UK – that they have a duty not to impede workers’ ability to take industrial action.
“The concentration of power in one sector – whether in the hands of government or business – inevitably leads to the erosion of democracy, and an increase in inequalities and marginalisation with all their attendant consequences. The right to strike is a check on this concentration of power,” he said.
Kiai went on to argue that the right to strike is fundamental to the preservation of democracy and added that states have a positive obligation to uphold the right to strike.
“I deplore the various attempts made to erode the right to strike at national and multilateral levels,” he said, “Protest action in relation to government social and economic policy, and against negative corporate practices, forms part of the basic civil liberties whose respect is essential for the meaningful exercise of trade union rights. This right enables them to engage with companies and governments on a more equal footing, and member states have a positive obligation to protect this right, and a negative obligation not to interfere with its exercise.”
It seems some politicians and members of the British judiciary would benefit from a refresher course in international law.
Change is Coming
The CWU have already declared their struggle will continue. Disbelief and distress at the court decision suggest that if and when another ballot is run, action will again be overwhelmingly supported.
But balloting and industrial action is time consuming and expensive both for the union and for the workers. They should not be left to carry the cost of such anti-trade union regulatory burdens.
So what is to be done? Very soon the electorate will have an opportunity to elect a new government. Manifestos have not yet been released but when they are, voters might want to judge them against policy proposals set out by the Institute of Employment Rights for a new, transformative programme of labour law.
Our proposals are clear and reflect the battle we have waged for the past 30 years. We call for a Ministry of Labour tasked with providing a voice at the Cabinet table for the UK’s workforce, as well as the creation of specialist Labour Court and a Labour Inspectorate to monitor and enforce a new framework of laws suitable for the 21st century.
We propose that union ballots should be allowed at the workplace or online as well as by post and, recognising that the right to strike is protected in international law, we propose that every worker should have such a right, and that unnecessary and unfair red tape preventing such action should be removed. For instance, unions should no longer have to give notice to the employer of a ballot on industrial action.
There should be proper protection against dismissal for those who take lawful industrial action and the right to strike should extend beyond taking action against your nominal employer.
The CWU case is just the latest example of bad laws being used to protect bad employer behaviour and stop legitimate protest action. It’s time for those laws to go. It’s time for change.
Chronology of Ballots
1980 Employment Act:
- Tories provided money to run ballots (carrot before the stick!)
1982 Employment Act:
- Unions made liable (up to £250,000) if an officer endorsed a strike without ballot
1984 Trade Union Act:
- All ballots had to be in “secret” (though not yet by post!)
- Union now liable for ANY “act done without the support of a ballot”
- Act specified required wording on ballot paper
1988 Employment Act:
- Strike ballots to be done at each separate workplace (isolate weak spots)
- New Code of Practice on ballots allowed for further state control
- Members (not just employers and customers) could take injunction against un-balloted action
- Introduced new state official (CROTUM) to support and pay for member complaints against union
- Removed union’s right to discipline strike breakers and introduced substantial financial compensation for those disciplined by union.
1990 Employment Act:
- All secondary action –with or without ballot – now unlawful
- Unions liable for all un-balloted action unless written repudiation sent to all members
- Dismissal of strikers taking unofficial (ie repudiated) action now allowed
- Any member of union could sue union for un-balloted action with support of CROTUM – even if member not involved in the strike.
1993 Trade Union Reform and Employment Rights Act:
- Creation of Commissioner for Protection Against Unlawful Industrial Action
- 7 days notice of ballots and of industrial action specified
- Union to identify those members balloted to boss
- Independent scrutiny of strike ballots demanded
- All industrial action ballots to be postal.
2016 Trade Union Act
- At least 50% of those entitled must vote in ballot and a simple majority must vote in favour
- In ‘important public services’ 50% must vote and at least 40% must be in favour
- Notice of action increased from 7-14 days
- Additional information needed on ballot papers
- Ballot mandates expire after 6 months
- Restrictions on check off procedures increased and on facility time
- Picketing Code of Practice given statutory force (breach of which could attract criminal charges) and picket supervisors have to be appointed
- Further restrictions to political funds introduced
- New investigatory and enforcement powers given to Certification Officer