The Campaign For Trade Union Freedom was established in 2013 following a merger of the Liaison Committee For The Defence Of Trade Unions and the United Campaign To Repeal The Anti Trade Union Laws. The CTUF is a campaigning organisation fighting to defend and enhance trade unionism, oppose all anti-union laws as well as promoting and defending collective bargaining across UK, Europe and the World.

Ballots, the courts and the need for radical reform

By Carolyn Jones, National Assistant Secretary, Campaign For Trade Union Freedom

Since 1980, no fewer than 10 pieces of anti-trade union legislation have been introduced in the UK.

Those laws have been criticised again and again by the international bodies that monitor trade union laws around the world. It’s an embarrassment to our country that the UK is now recognised as a serial international law breaker.

When Margaret Thatcher first started this attack on trade unions, she claimed it was to “give unions back to their members” and to control “over powerful unions”.

The CWU court case highlights the perverse extent to which those laws are now being used to stop unions implementing the democratic decisions of their members and to prevent workers from taking action against over powerful employers.

On Wednesday in the Court of Appeal, Lord John 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 in support of action, the Court ruled against the CWU.

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.’

How did we get here?

The introduction of ballots is a good example of the step-by-step approach adopted by previous Governments to shackle trade unions in red tape which so often prevents unions taking lawful action. The chronology of balloting law below highlights how the law has been repeatedly tightened to restrict union action.

A quick glance shows how 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. Shame to say 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 (LIAM) was introduced in Parliament. The aim of LIAM was to stop the democratic decisions of workers being overturned by judges. Again, the Bill failed to reach the statute book.

Time for change.

Now, with a general election due, the possibility of a new piece of progressive legislation making it to the statute book is closer than ever.

The Labour Party has already committed to the creation of a Ministry of Labour tasked with providing a voice at the Cabinet table for the UKs workforce and the creation of both a specialist Labour Court and a Labour Inspectorate to monitor and enforce a new framework of laws suitable for the 21stcentury.

The IER, backed by CTUF, also 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 and that unnecessary and unfair red tape preventing such action should be removed.

Other proposals include, 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.

As the late Bob Crow wrote in a CTUF article back in 2010 “The law is an anti-union ass”.

It’s time for those laws to be replaced with a progressive framework of laws that matches international obligations and is fit for the 21stcentury. Its 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
  • and provokes regular criticism from international labour law enforcement agencies

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Laura Pidcock’s Response To CWU High Court Ruling.

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CWU High Court Case & Injunction

The CWU has lost its case against Royal Mail in the High Court today in a travesty of justice. 

The CWU had carried out a legal ballot to defend jobs and working conditions in the Royal Mail. Over 97% of members voted for action with a massive turn out by CWU members who took part in the balloting process.

Rather than getting round the table and resolving the dispute with the CWU the Royal Mail sought an injunction against the CWU on minor technicalities connected with postal voting.

Royal Mail claimed the union had ‘interfered’ with the ballot process and therefore the 97% result in favour of strike action was invalid.

One of the High Court judges said the decision had also been made because of the impending General Election.

But it is understood that the case turned on the current requirement for ‘postal only’ balloting.

Under Labour’s proposals on ballots workplace balloting will be permissible by way of secret voting, which will be secure and free from unlawful interference or undue influence and employers will be under a duty to make arrangements for accessible, secret, secure workplace balloting free from unlawful interference or undue influence.

The union argued it had done nothing wrong but the ruling means the strike action planned before Christmas cannot go now ahead.

Following the result, the union tweeted:  “The High Court has ruled against us. Genuinely this is an utter outrage. 110,000 workers vs the establishment.

”Stand strong. We will not be moved.

CWU general secretary Dave Ward said: “Not one single person out of 110,000 who were balloted complained to Royal Mail that their right to vote was interfered with.

”Not one single person out of 110,000 who were balloted complained to the independent scrutineers that their right to vote was interfered with. The Electoral Reform Society, who conducted the ballot, confirmed it was run in full accordance of the law.”

Tony Kearns the senior deputy general secretary of the CWU has tweeted the union intended to appeal the decision.

One thing is clear is that the current system, is, as Frances O’Grady of the TUC said in a tweet that the current system is rigged against workers and trade unions.

More to follow:

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ILO Conventions 87 & 98 Brazil – The Rise of Right Wing Populism

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ILO Conventions 87 & 98 Mexico – A New Dawn For Independent Unions?

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Australia: Big union merger will shift Labor to the left

By Ben Schneiders,  Sydney Morning Herald

November 9, 2019 

Thanks to Ben Davis of the USW.

The two unions that have been most active in bringing attention to the epidemic of wage theft in Australia will merge on Monday to form one of the country’s largest unions, and in doing so, potentially shift the Labor Party to the left.

The merger of the National Union of Workers and United Voice will be a bid to “rebuild worker power” in Australia and “change democracy”, according to the new union’s national secretary Tim Kennedy.

“It is a radical proposal to rebuild worker power in this country where it’s really needed,” Mr Kennedy told union delegates last month. “To help rebuild the power of workers not just of our union but of organised labour in this country.”

The merged union will be called the United Workers Union. Its creation as a left-wing union will give that faction of Labor a possible national conference majority for the first time in decades, with the old NUW delegates shifting from the right faction to the left.

The union movement has been in steady decline since the 1980s and in the private sector barely one in 10 workers are now a member.

Among the reasons for the decline are legal and other changes in recent decades that have shifted power to employers. The United Workers Union promises an aggressive industrial approach which could mean more strikes, which are at historic lows.

“The crisis has many parents,” Mr Kennedy said in an interview with The Sunday Age and The Sun-Herald.

“The reality is progressive politics in this country has not been winning debates about collective responses to issues for a long time,” he said.

Mr Kennedy said by winning industrial battles, the UWU could give millions of workers a sense of power and put them “back in the centre of the political contest in this country” and “change the nature of democracy in this country”.

He describes inequality as a “cancer” in Australia that diminishes the lives of many and stops them from living “full lives”. Redistribution of wealth “is a key impact we want to have”.

The merged unions have both been heavily involved in campaigning against wage theft in industries such as hospitality, farms and cleaning. Many of the new union’s members are low paid and in insecure work. About a third come from non-English speaking backgrounds.

The underpayment of wages has become a major national issue after a string of scandals at big companies such as Woolworths, Bunnings, the ABC, at high-end restaurants and among labourers on farms.

The Morrison government is moving to toughen penalties for employers and is considering an ACTU proposal to make it easier for underpaid workers to make claims at the Fair Work Commission.

However, unions have struggled to transform widespread public angst around slow wages growth and unlawful wage underpayment into greater membership numbers. The surprise defeat of Bill Shorten’s Labor at this year’s election dashed union hopes of more worker-friendly laws.

The new union has also ditched more than a 100 years of union practice in Australia, abolishing the structures of state and federal branches, as part of a radical overhaul.

“That’s not the system we are in any more, employers are national, they’re global,” said Jo-anne Schofield, who is the new union’s national president. “It did require a root-and-branch review of what a union for the future might look like.”

Instead of the old structure, the UWU will set up around industries and as a single national union, Ms Schofield said. Its core industry areas include aged care, farms, food and supermarket supply chains.

Ms Schofield said the scale of the new union and its new structure would allow it to pursue a positive agenda to grow. “We’ve been in too many fights, too many defensive fights.”

The union movement went through a series of mega-mergers in the 1990s, few of which were successful. Ms Schofield said her old union, the former United Voice, had merged and amalgamated more than 60 times in its history.

RMIT professor of workplace law, Anthony Forsyth, said the merger was “really significant” as it involved “two of the best unions in the country joining together”.

They had been innovative in recruiting migrant and young workers, areas where many other unions had struggled to have a presence.

“You could view it as a last roll of the dice, if their approach and the innovations they’ve been using can’t make it work, there’s not much hope for unions.”

Nonetheless, Professor Forsyth said he had “quite a lot of confidence” it would be a success.

Mr Kennedy said the UWU, which has two-thirds of its members in the private sector, has set ambitious targets for growth. It wants to grow from about 150,000 to 200,000 members within five years.

There are up to two million workers eligible to join the union as it has the right, under workplace laws, to represent workers in such a large number of industries. That potential growth has implications for Labor nationally, where the factional numbers are currently finely balanced between left and right factions.

“The new union will be part of the left,” Mr Kennedy said. “It’s not a big deal, (the union) will form views based on what’s important to its members and prosecute them in party forums, whether that’s right, left or indifferent doesn’t matter to us.”

In the byzantine world of Labor factional politics, the move threatens to destabilise delicate power arrangements. It could tip the balance of power in the party to the left at next year’s national conference for the first time since 1979, according to senior left and right Labor sources.

In Victoria, senior Labor right sources said the contingent of seven NUW-linked MPs will remain in the right. Over time that may change as senior MPs such as minister Martin Pakula and Treasurer Tim Pallas retire and are replaced.

One senior Labor right source was confident little would change and said the NUW contingent in the Victorian parliament were “independent of thought”.

He couldn’t see them “volunteering to be a new asset of Left faction leader Kim Carr”.

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Support McDonald’s Workers On Strike!

McDonald’s workers are going on strike! On Tuesday workers from six south London stores are striking for £15 an hour, guaranteed hours and a union.

The McStrikers will deliver an open letter for party leaders to No. 10 Downing Street demanding a New Deal for McDonald’s Workers. They are taking action to demand basic respect at work and an end to poverty pay.

Add your name to show them you’ve got their backs.

McDonald’s workers around the world are standing up to the second largest private employer in the world. McDonald’s is global but so is our movement. Fast food workers around the world will be standing up for their rights at work on the same day.

McDonald’s has deep pockets, but we have people power and justice on our side. McDonald’s workers are showing that they are not afraid. They are demanding that McDonald’s treats them with the respect that we all deserve.

Add your voice and show them that you stand with them.

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Don’t Be Fooled – Workers’ Rights Will Suffer Outside The EU

By Nicola Countouris and Keith Ewing

First published on the UK Labour Law Blog, 28th October 2019, and is available at https://wordpress.com/view/uklabourlawblog.com.

In a remarkable article – Don’t be fooled – the EU is no defender of workers’ rights – The Guardian’s economics editor Larry Elliot trashed as ‘complete nonsense’ the ‘idea’ that British workers need to be aligned to the EU. This is a view embraced by a small, but – in the current climate of fractious Parliamentary alliances and tactics – crucially important part of British society. That being the case, it is not clear where the proponents of this view have been for the last forty years to produce something so conspicuously ill-informed and myopic.

Where to begin? First, the Guardian article gives an incomplete account of our laws and the influence of the EU. Reference is made in to equal pay and health and safety at work. In fact, with the exception of the home grown statutory minimum hourly rate (it is neither a minimum wage nor a living wage and we should stop to referring to it as such); the failed trade union recognition legislation; and the restrictive legislation on the right to strike, there is little in the labour law playbook that has not been influenced and enriched by EU membership.

It is true, as the Guardian’s article maintains, that the Equal Pay Act 1970, the Health and Safety at Work Act 1974 and the Sex Discrimination Act 1975 were minted in London rather than Brussels. But it is also true that these provisions would be even more risibly ineffective but for the input of EU law in various guises. There would be no equal pay for work of equal value, we would still be stuck with the narrowest notion of ‘comparator’ in equal pay claims, there would be no application of the Equal Pay Act to pensions, and there would still be a cap on compensation for discrimination claims.

That apart, the article makes no reference to paid holidays, redundancy consultation, TUPE, data protection, or European Works Councils. None of this is likely to have been introduced unprompted by the monetarist, neo-liberal and austerity driven governments of the last forty years. While many of these measures are less effective than they should be, the weakness of the law is a matter for which successive British governments have been largely responsible, as they first tried to block important social initiatives until they were over-ruled, and then tried generally to wriggle free when implementing their obligations.

Overall, however, UK labour standards generally tend to be more or less on a par with European standards (and on some occasions even more robust) in those areas presided over by EU labour law instruments. But on the contrary, UK labour standards tend to fall well below European standards in areas such as unfair dismissal where, as noted in 2011 by the very strongly deregulatory driven Beecroft Report  commissioned by Cameron when he was Prime Minister ‘[t]here is no EU concept of “unfair” non-discriminatory dismissal, so there are no other EU constraints on what the UK can do in this area’.

Secondly, the Guardianarticle runs with the old trope about the EU being a source of restriction on workers’ rights because EU law has enshrined four basic freedoms for business in the EU Constitution. Three at least of these freedoms are not something that the Left can begin to defend. But it would take a remarkable leap of faith to believe that the EU Constitution does not simply express in writing the underlying values of successive British governments, and the direction of British social, economic and political policy since the industrial revolution.

The article predictably trots out the Viking case in the Court of Justice of the European Union (CJEU). The author seems to confuse this case with the separate CJEU decision in Laval: Viking did not post workers from Estonia, but reflagged its vessels there. But we should not hold that against him, as the point of substance remains the same and the oversight does not affect the argument made. Nor is there any doubt that both Viking and Lavalwere bad decisions (which indeed may well have contributed to Brexit), as we have frequently argued, and now explain more fully in our booklet on Brexit and Workers’ Rights by published by the Institute of Employment Rights.

But as we also point out, leaving the EU will not relieve us of all the restrictions that were created in Viking.   So far as they apply to secondary action, these latter extend to the EU restrictions introduced in British domestic law in 1990, retained by Labour governments (with the fairly recent approval of the European Court of Human Rights), despite Blair’s criticisms of the measures when they were first adopted by Thatcher. Although the Vikingcase had serious effects, the fact is that when Britain leaves the EU secondary action of the kind taken by the ITF in that case is still likely to be actionable.

Properly contextualised, Vikingwould be a poor reason to support Leave. Which is not to dissent from the call in the Guardianarticle for a Labour government fully committed to workers’ rights and collective bargaining, as we have also advocated elsewhere. But the future is not a binary choice between the EU and a Labour government. It is for both. Assuming Corbyn is elected to replace Johnson, history suggests that Labour won’t be there forever, and that at some time there will be a continuing need for the inderogable framework of rights we have had for the last forty years. This is not pessimism. It is common-sense.

The role of Labour will be not only to expand the domestic agenda but also to work in solidarity with progressive forces in the EU to change the direction of travel there as well (and an argument could be made about the British Left having a duty to do just that, after four decades of British governments acting as a brake on Social Europe). Post-Brexit, Labour will continue to have a responsibility to ensure that there will be no regression from European standards, while also protecting us from a future relationship with the EU based on a deregulatory free trade agreement whereby the UK gradually cuts itself adrift.

Finally, and perhaps more important than the controversial Guardianarticle, is the leak from inside government on the following day to the Financial Timesabout the withdrawal negotiations. This revealed a deliberate manoeuvre on the part of Johnson’s team to secure maximum opportunities to degrade labour standards, a point we had elaborated on in a recent IER Briefingcomparing Johnson’s deal with the terms of the previous ‘deal’. If the Guardian article is right about workers’ rights, why would a Johnson government apparently ideologically – if not otherwise – aligned to the EU need scope for creative regression?

Let’s hope that the most vulnerable amongst us are never in a position to find out. And let’s hope too that the people in our view misrepresenting the role of the EU in the protection of workers’ rights are never required to account for their folly. They would have fooled and failed us all.

Nicola Countouris is Professor of Labour Law and European Law at UCL Faculty of Laws and a member of the Executive Committee of the Institute of Employment Rights. His main research interests are in Labour Law, UK, international, and comparative EU Law, Social Security Law, and Public Law.

Keith Ewing is Professor of Public Law in The School of Law, King’s College London and is the President of the Institute of Employment Rights and the Campaign For Trade Union Freedom. His research interests are in labour law and constitutional reform, with special reference to the relationship between social rights and constitutional law.

This blog by Nicola Countouris and Keith Ewing ‘Don’t be fooled – workers’ rights will suffer outside the EU,’ was first published on the UK Labour Law Blog, 28th October 2019, and is available at https://wordpress.com/view/uklabourlawblog.com 

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McDonald’s workers announce ‘biggest ever’ strike – how you can help!

McDonald’s workers have warned bosses that they are planning to launch the biggest wave of fast food strikes the UK has ever seen.

It is reported that six London branches of McDonald’s had been given notice by members of the bakers’ union, BFAWU, of action beginning on Tuesday 12th November.

Workers will call for a £15 an hour wage, guaranteed hours and four-week’s notice of shift patterns, the right to be treated with respect by management, an end to the use of ‘youth rates’, and union recognition.

The strike is expected to close branches in Balham, Catford, Crayford, Deptford, Downham and Wandsworth and is being held as part of an international day of action by the International Union of Food Workers.

Fast food workers in New Zealand, Brazil, Chile and France are also expected to demonstrate on the day.

“I need £15 an hour so I can show my son that poverty is not the only option,” one worker, Melissa Evans, told the Morning Star.

“We are tired of being exploited, but together we are powerful. We will win a new deal for McDonald’s workers,” she explained.

McStrike Mass Video Call – how you can help.

McDonald’s workers are fighting back against zero-hours contracts and unsafe workplaces. They’re demanding £15 an hour, guaranteed hours and union recognition.

Join journalist Owen Jones, War on Want and McDonald’s workers to hear the plan to win – and how you can be a part of it.

We need to show McDonald’s and the workers going on strike that our whole movement is behind them.

The video call will take place using a simple to use and free app/website called Zoom.

All you need is an internet connection and computer or smartphone to join.

Sign up here and you’ll be emailed the link!

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Brexit and Workers’ Rights – Free Download

By Professors Nicola Countouris & Keith Ewing

Now, on the brink of the third deadline for a Brexit deal, two leading UK academics consider the possible implications of a ‘no-deal Brexit’ for UK workers’ rights. They conclude that the process and the post-Brexit architecture will be owned and determined by the political party in power at the time of Brexit and they pose two alternative scenarios. Fr

Download a copy for free here.

About the book

On 23 June 2016, the United Kingdom held a referendum on whether to remain in or leave the European Union. The result was 51.9% of voters voting to leave. Two things were immediately clear. First, the negotiations would be a very complex, technical, and politically charged affair. Second, the UK would face tough choices and would not be allowed to ‘cherry-pick’ the terms of the Brexit arrangements.

Now, on the brink of the third deadline for a Brexit deal, two leading UK academics consider the possible implications of a ‘no-deal Brexit’ for UK workers’ rights. They conclude that the process and the post-Brexit architecture will be owned and determined by the political party in power at the time of Brexit and they pose two alternative scenarios.

Either the future could deliver a relentless process of ossification, stagnation and erosion of UK labour rights led by politicians traditionally hostile to workers’ rights. Or, the UK could not only protect those UK rights already on the statute book but could resist the tendencies of the European Commission to decentralise collective bargaining arrangements and deregulate employment protection legislation.

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