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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