The Conservative Government’s Trade Union Bill 2015, currently coming up to its Third Reading in Parliament, is undoubtedly an extremely pernicious piece of anti-trade union legislation. Not only does it set new hurdles for balloting for a strike to remain ‘lawful’, but it also opens the door for agency workers to be used to break strikes, and attacks mutually agreed arrangements between unions and employers that allow for direct deductions of union subscriptions from wages and salaries (‘check off’). In an Orwellian twist police are encouraged to monitor social media of active trade unionists involved in strike action, and unions will be required to reveal their plans for picketing and protests and the equipment (banners, loud hailers etc.). If unions do not make these revelations, they will be subject to fines. In a veiled attack on Labour Party funding, employees will be required to ‘opt-in’ to the political levy of their union rather than ‘opt-out’. The Thatcher government legislation of the 1980s, in total six new laws, focused its ire on trade union ability to appeal for sympathy action by outlawing ‘secondary’ action and redefining the definition of a ‘lawful’ trade dispute and effectively banning ‘political’ strikes, however defined. British trade union law has always worked through a system of immunities, whereby unions taking ‘lawful’ strike action were immune in law from employers claiming compensation for lost production or profits. By making more strike action technically ‘unlawful’ the balance of workplace power was swung towards the employers, who could seek injunctions for ‘damages’ against trade unions. Failure to pay would lead to state action to further fine or imprison trade union leaders held to be ‘responsible’ for breaking the law. The new Bill adds more grist to the mill, focuses attacks on public service strikes by creating extra balloting hurdles, and seeks to isolate the ordinary trade union activist as an outsider, once more the ‘enemy within’.
Much has been made of the pernicious nature of the Bill, with many organisations objecting to all or part of the new requirements on the basis that they are unnecessary (given the relatively low level of strikes), unworkable, not fit for purpose, or simply an affront to human rights. The Police Federation, for example, are said to be in a state of ‘dread and fear’ at the thought of monitoring tweets and acting as a ‘political police’. The Recruitment and Employment Confederation are ‘not convinced’ that it would be a good idea for agency workers to involve themselves in industrial disputes. Leading representatives of the Scottish and Welsh Assemblies have asked to be excluded from the Bill (in Scotland) or suggest that they will refuse to implement it (Wales). The TUC, as it should be, is against the Bill and the new leadership of the Labour Party is pledged to oppose. But the Tories now have a majority, a slender one it’s true, but one on which they can reinvigorate the class warfare against working people begun by Thatcher in the 1980s. It’s unlikely they will be swayed by reasonable argument or evidence based analysis. So how can we defeat the Bill?
Structured Antagonism
To make this assessment we need to rehearse the real nature of employment relationship. Outside of slavery or other forms of forced or coerced labour employers seek to maximise their use of the labour power of workers by a variety of means. This is not achieved by just paying a good wage, which might entice the worker through the factory or office door but will not guarantee the worker maximises his or her individual productivity for the benefit of the organisation. The relationship between employer and employee is a balance between co-operation and conflict. Co-operation is vitally necessary for the employer who will use monetary incentive as well as control and discipline bounded by an ideological imperative of management’s ‘right to manage’. On the other hand, conflict is inevitable given the ‘structured antagonism’ that exists between capital and labour, with collective worker interest, expressed through trade union organisation, directly at odds with the profit motives of the employer. Employers naturally wish for total co-operation, often through the suppression of unions, and a unitarist acceptance that ‘we’re all in it together’ as part of one happy family. Unions, in contrast, are a product structured antagonism and exist to counter-balance the power of the employers. This balance between employer power and union resistance to that power is the source of labour law. It’s a peculiar field of jurisprudence, as unlike criminal law the punishment received for ‘breaking’ the law is highly contentious. This is so because the balance of power between employer and employee is fluid and subject to political interference. Punishment handed down from the courts for murder or theft, for example, under criminal law has much more societal legitimacy than punishment for picketing or striking. The fluidity and politicised nature of labour law explains why it has swung backwards and forwards over time, either in favour of, or in opposition to, trade union ‘rights’ to withdraw labour. The state, as an agent of capital, will generally seek to restrain strike action (or the ability to take lawful strike action). The state is best placed to do this when trade union opposition is debilitated, hence more restrictive legislation is successfully introduced following periods of union defeat. The 1927 Trades Dispute and Trade Union Act, for example, followed the defeat of the 1926 General Strike. The Act outlawed ‘sympathy’ strikes, introduced ‘contracting-in’ to the political levy (instead of automatic payment) and banned some public sector unions (such as those in the Civil Service) from affiliating to the Labour Party. The Act was liberated by the post War Labour Government, when most trade union ‘immunities’ were restored, giving unions a much freer hand to take effective strike action. When the state attempted to restore anti-strike legislation during the relatively strike-prone years of the 1960s ( after the 1968 Donovan Report) it came a cropper. Labour’s In Place of Strife was thrown in the bin as trade unions refused co-operation, while The Tory’s Industrial Relations Act of 1971 (with many of the same objectives) befell a similar fate. 600,000 workers staged an unofficial strike against the Act as it was introduced. The government, however, pressed ahead and attempted to put the legislation into practice by jailing five dockers for ‘blacking’ goods as part of their dispute against job losses and containerisation. Unofficial action in support of the jailed dockers erupted among construction workers, dockers, miners and civil servants before the TUC were forced to call a one day General Strike. The dockers were released under the pressure and the legislation fell into disrepute. The law had lost its legitimacy as the balance of class forces tipped in favour of organised workers.
Lessons from Thatcher
Thatcher’s anti-union legislation follows a similar pattern. The six anti-union laws were introduced against the background of union defeats of the civil servants, steelworkers, printers and miners. These defeats severely sapping the confidence of a generation of union activists. The union leaderships, and the Labour Party drifted with the defeats into a dreadful period of ‘New Realism’, red-baiting militants in the Labour Party, and espousing full co-operation with employers through the mantra of social partnership and ‘mutual gains’. Even as a survival strategy for unions this was a disaster, leading to a slump in both union membership and strike activity. The mantle of compromise was taken yet further by New Labour under Tony Blair, when the Labour Government, rather than rescind the anti-union legislation, kept it in place and in the interests of national competitiveness (i.e. business) and proceeded to reconstruct the labour market towards more ‘flexibility’ and less job security. By 1998 Blair could boast (not bemoan) in his introduction to the Fairness at Work White Paper that of the new legislation:
‘It seeks to draw the line under the issue of industrial relations law. There will be no going back. The days of strikes, mass picketing, closed shops and secondary action are over. Even after the changes we propose, Britain will have the most lightly regulated labour market of any leading economy in the world’
So it is against this background, fed by the pusillanimity of the Labour Government and trade union leaders, that today’s Conservative government are seeking once again to turn the screw on trade union rights. However, there are some arguments to suggest that the path ahead may be full of unexpected potholes.
What is Different?
While strikes are at a relatively low level there may be less of a feel of recent defeat among union activists that has previously presaged restrictive legislation. Trade union or Labour Party leaders are less able to press the case for ‘moderation’. Any attempt to persuade union activists and the bulk of union members that now is the time to collaborate with employers in new forms of social partnership will not go down well, given the fact that managerial control in the workplace has increased in recent years and workers are working harder and more intensively as a result (see elsewhere in this blog). Neither is it the case, with the election of Jeremy Corbyn, and the success of the SNP, that the Tories can rely on a compliant opposition when pursuing their Bill. Corbyn was elected precisely because he wasn’t Blairite. So manufacturing societal ‘legitimation’ for the new anti-union measures will be that much more difficult for Cameron and the ‘son of a bus conductor’ Business Secretary Sajid Javid.
The nature of the new legislation also differs in two ways from that of its Thatcherite predecessors. First of all Thatcher, under strategic guidance form the Selsdon Group, carefully crafted a plan that would attack the unions in the 1980s by ‘salami tactics’, taking on the unions one-by-one and introducing anti-union legislation in six different steps. As one target fell, the next could be constructed, demoralising and demobilising opposition along the way. Second, the tactical bow and arrow of the anti-union laws was aimed primarily at the trade union leaders rather than the rank-and-file. Indeed, the acts were often justified by claims from the more aggressive Tories that union leaders were divorced from their members and out of touch with their concerns. Union funds were at stake through ‘sequestration’ of assets, and it was union leaders who faced jail terms rather than ordinary members. The union leaders’ compliance with the law meant that they effectively ended up policing the laws themselves, by refusing to support ‘secondary’ action, and by ‘repudiating’ unofficial action that was deemed to be unlawful. The new Trade Union Bill, however, takes aim at the rank-and-file activists, by attacking branch membership through removing deduction of subscription at source, bringing in agency workers as scabs, and requiring activists to inform about every single detail (including Facebook and Twitter postings) of the strike campaign in advance. The paradox here is that by targeting the rank-and-file the government may have opened up opportunities for resistance at local level, one step removed from the control of the trade union leaderships. Achieving societal legitimacy for the changes may be more difficult as a result, in turn giving union members more confidence to ‘defy’ the law.
The new legislation also includes its targets all in the one Bill. It appears as an amalgam of different objectives with piece-by-piece clauses. This opens the door for the possibility of unions at local level negotiating with employers to exclude sections of the legislation from practice at the local organisational level. It is perfectly imaginable that a Labour/Green led local authority, for example, in the interest of ‘good’ industrial relations and under pressure from the local unions, may be willing to overlook the requirement to end deduction of subscriptions at source, or instruct its HR department to refuse to employ agency workers as strike breakers. Ignoring the balloting requirements for strike action may a more difficult nut to crack, and would mean an employer refusing to seek an injunction against the unions should they seek to ‘defy’ the law by striking anyway. More likely, may be an agreement by an employer to agree to negotiate over a dispute should a simple majority for strike action be achieved. Indeed, as legal balloting requirements for strike action become harder to achieve, employers are more likely to sit up and take note should majorities for action win the day. And as Dave Lyddon has astutely observed ‘Union leaders and activists will be forced to campaign much more vigorously to achieve the required 50 percent turnout in industrial action ballots’. This would act as a spur to organisation and recruitment, and encourage cooperation between unions in multi-union establishments. Union leaderships may also change tactics to focus more directly on indefinite action (or frequent action) in selective strikes where support is strong and where maximum pressure on the employer can be achieved.
Of course, we also need a much more aggressive response from the unions at national level. Len McCluskey, on behalf of Unite, has hinted at unions defying the law and a rejigged union constitution to allow for this has been put into place. However, his offer to Cameron to use the internet as a voting tool, is a deflection from the necessary struggle and runs the risk of legitimising Cameron’s objectives. We need more protest, focused on a defence not only of the right to strike but also of the right of freedom of association. November 2nd will see both a TUC lobby of parliament (with an attached demonstration) and parallel demonstrations at towns and cities in opposition to the Bill. In my home town of Bristol we already have an umbrella group involving local unions, Labour and Green Councillors, and the Peoples’ Assembly established. Lobbies and pickets of MP surgeries as well as further demonstrations and protests are likely.
Such shifting tactics are inevitable given the ‘structured antagonism’ that will always exist between capital and labour. Antagonism cannot simply be legislated away in a whiff of Tory exuberance. More astute members of the ruling elites may even be aware that in states where strikes are banned altogether (such as China or Egypt before the Arab Spring) the right to strike has been taken up unofficially and often on a mass scale, causing not only industrial chaos but also political turmoil. We may not yet be at such a hiatus, but we should certainly expect a rough ride ahead.
won'tgetfooled 