Boris and the Ballot: why call for tougher strike laws?

The nation’s favourite Tory, Boris Johnson has called for tougher strike laws. In his Mail on Sunday interview Boris sets out an 8-point plan. It differs from other employment law proposals I’ve seen in that it has been prepared by someone who knows a thing or two about industrial action law. Boris has clearly been getting some help from an employment lawyer (hands up anyone?). What is most striking about the proposals, however, is that they aren’t really founded on any principle other than, ‘these strikes are annoying, lets make going on strike harder’.

I am not a particular Norman Tebbit fan, but in all fairness, the reforms that he spearheaded in the 80s were based on points of principle to do with democratic support for action and the need to avoid the intimidation of union members. It’s hard to discern a similar concern for principle behind the plans Boris is putting forward.

Strike ballot turn-out

Perhaps the proposal that comes nearest is that strike ballots should have the support of a majority of those entitled to vote, not just of those actually voting. I’ve written before about the argument for a minimum turnout in strike ballots; it’s a regular political gripe from the right.

However, if democratic turnout is really the issue then the solution is simple. Allow well regulated workplace ballots. Currently, all strike ballots are postal. The ballot papers must be sent out by post and they must all be returned by post. I’m rubbish at posting things even when I know they are important, so I can easily see why turnout in large postal ballots is often low. If workers could vote by putting ballot papers into a ballot box in the workplace you would solve the problem. But this isn’t really about solving a problem – its about drawing battle lines.

Even if strike ballots do lack democratic legitimacy, how much of a problem is that really? It’s old hat to compare the turn out in strike ballots with the turnout in the election of politicians, but here’s another point. Uniquely in democratic systems, the participants in a strike ballot are not bound by the result. The Londoners who chose not to vote for Boris Johnson do not get to opt-out of having Boris Johnson as their mayor. However, union members who vote against strike action, or who don’t bother to vote at all, have an absolute right not to take part in the action that results.

The right not to take part

The key right is not to be unjustifiably disciplined by the union. (S.64 of the Trade union and Labour Relations (Consolidation) Act 1992). Any action taken by a union against one of its members is unjustifiable discipline if the reason for it is that the member has failed to join or support any industrial action or shown any opposition to such action.

An individual member can sue his or her union for unjustifiable discipline or in the employment tribunal. Compensation can be awarded up to the maximum level allowed for unfair dismissal but there is a minimum award of  £8,100. That’s a minimum award of compensation which is £3,000 more than the median award for unfair dismissal!

That strikes me as being pretty good protection. The fact is that unions know that thy cannot run effective industrial action campaigns without the solid support of their members. If they lose that, the action just peters out.

Whether you agreed with them or not, you could make a decent argument to the effect that Norman Tebbit’s reforms worked. The left hated the ‘tory union laws’, but a large section of the public supported them because they saw that there was a genuine problem that needed to be addressed. In olden days there was a great deal of peer pressure to take part in action. I was growing up in a mining town during the miners’ strike of 84-85 (though obviously it isn’t a mining town anymore). I remember  armoured coaches being used to smuggle miners into work at a pit that had actually voted against a strike. Communities and families were divided; there was real fear and violence.

That’s not what we see when the RMT calls a one day tube strike and most of the trains run on time anyway. When civil servants strike, picket lines are tiny and many workers cross them without even noticing. There are no pitched battles or mass demonstrations. The argument that Boris puts forward about ‘psychological pressure’ is frankly pretty weak.

Those were the days…

His proposals are not aimed at a real problem with how strikes are organised and conducted. They are not designed to protect moderate union members because there is no evidence that they need protecting. They are just designed to make it harder to go on strike by increasing the legal obstacles in the way of a union trying to take action. There is also a whiff of nostalgia about them; an attempt to recreate the certainties and clear battle lines of the 80s; to summon up a little of that old Tebbit magic when Tories felt that they were fighting the good fight against the enemy within.

It might work with an audience of Tories at a conference, but I don’t think it will work with real people. If the Tories are persuaded to really push for these ideas, they will sound like aged rock stars at a Jubilee concert. You’ll remember that they used to be really ‘with it’ once but now just sound old and croaky.

 

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in Industrial action and tagged , , , , , , , . Bookmark the permalink.

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