Who decides if we can go on strike?

This is a discussion article by a supporter of Free Our Unions. We welcome responses and debate.

All active trade unionists are all too familiar with the myriad ways the law restricts industrial action. We are restricted to striking over “trade disputes” with our own employer, ruling out strikes in solidarity with other workers, or over wider political issues. To hold a legal strike, we have to notify the employer of our intention to ballot, giving them time to challenge the ballot data we send them. We then need to ensure at least 50% of those balloted return their ballots, an arbitrary threshold not applied to any other area of democratic life. If we work in one of several “essential services”, in addition to securing a majority of returned ballots in favour of action, we also need at least 40% of all those balloted to vote for action in order for strikes to proceed. We are then required to give 14 days’ notice of any action to the employer.

The newly-elected Labour government has said it will remove some of those restrictions, such as the turnout thresholds in strike ballots. Others, such as the prohibition on solidarity strikes, will remain on the statute books.

All of these are restrictions imposed by the state. But there are additional restrictions on our ability to take swift and effective action that are imposed by the bureaucracies of our unions, over and above the restrictions required by law.

In almost every union in the British labour movement, decision-making power over if and when workers can ballot for industrial action, and what action they can take if a mandate is secured, lies with a union body at least one step removed from rank-and-file members in workplaces. One major union in which there is some exception to this is the Communication Workers Union, where branches in its telecoms sector (but not its postal sector) can call ballots and action. In almost all others unions, the body with decision-making power is the National Executive Committee. In some unions, a sub-committee of an NEC, usually headed by a full-time union official, is the relevant body.

This means that, if a group of workers in a single workplace wish to launch a dispute and industrial action ballot over a workplace-specific issue, and subsequently go on strike, they effectively have to seek permission to do so from a committee on which none of them sit, unless it is a workplace in which one or more members of a given union’s NEC happen to work. In some unions, unelected officials, people who rank-and-file members have no means of recalling or directly holding to account, are able to intervene in decisions about if and when ballots and strikes can take place.

In unions with more developed democratic cultures, the NEC’s role might only be to rubber stamp a request for a ballot, and subsequent action, that has been submitted by a branch or workplace group. But even there, the additional layer of bureaucracy functions to slow down workers’ efforts to take action, even if that is not the intention.

It should be an aim of rank-and-file democracy to place decision-making power as close to the shop floor as possible. Why shouldn’t union branches, or workplace groups, have the constitutional power to launch ballots — and then, to directly call action if and when a mandate is secured?

For the purposes of determining whether an action has been “authorised” by a union, the Trade Union and Labour Relations (Consolidation) Act 1992 says that authority can be given by:

“(a)by any person empowered by the rules to do, authorise or endorse acts of the kind in question, or
(b)by the principal executive committee or the president or general secretary, or
(c)by any other committee of the union or any other official of the union (whether employed by it or not).”

In other words, it’s up to a union itself to decide which of its bodies has the power to authorise strikes. A union can choose, within its own structures, to empower branches and workplace groups to launch ballots and call action.

For sure, such a measure would need to have clearly defined limits. It would obviously not be democratic for a single branch to unilaterally launch a dispute or ballot involving members of other branches. For ballots involving multiple branches, regional committees or equivalent sectoral bodies within unions, with representation from all affected branches, would need the final say. In unions that have industrial sector committees, or combine committees of workplace representatives covering a given sector, those bodies might be the most appropriate body to sanction ballots and action for the union’s membership across that sector. And an NEC would remain the appropriate body to sanction national ballots.

But when workers in a single workplace, or small group of workplaces, all organised in the same, single union body (usually a branch), want to ballot, and take action, over a local issue, why should they not have the power to do so?

An opponent of such reform might argue that, since it would be the union as a whole, and not an individual branch, that would be liable for damages in the case of any legal action by employers against improperly authorised action, it’s necessary for decision making to remain at union head offices. But unions have legal and industrial relations departments, staffed by paid professionals, to check statutory requirements are being met. Why couldn’t delegates from branches or workplaces liaise with those departments directly, instead of having to go via NEC members or full-time officials?

Almost every union claims to be “member-led” — a slightly clunky formulation, surely less clear than the simpler term “democratic”, but nonetheless an indication that the union believes itself to be directed from below, rather than above. Which union will dare to be the first to imbue that term with much more practical content, by giving rank-and-file bodies at workplace or branch level the power to declare disputes, launch ballots, and call action?

Labour’s plans for repealing (some) anti-union laws

The new government’s Employment Rights Bill will make some significant changes to anti-union laws. But it will also leave many on the statute books.

We republish below a government briefing (also online here) on the impact their forthcoming Employment Rights Bill will have on anti-union law. Perhaps most significant is the repeal of most of the 2016 Trade Union Act, including the turnout thresholds for industrial action ballots.

trade-unionsDownload

Whilst these measures represent real progress — which would not have been achieved without union pressure on the Labour Party — significant restrictions on the right to strike will remain on the statute books.

For example, the Employment Acts of 1980 and 1990, which outlaw solidarity strikes (i.e., workers striking in support of, or on behalf, other workers, outside of an official “trade dispute” with their own immediate employer), will remain in effect.

Our unions must do more to demand the government goes further. Free Our Unions can support rank-and-file activists who want to push their unions to act.

Labour’s Employment Rights Bill

Labour says its Employment Rights Bill will be “the biggest overhaul in workers’ rights for a generation”, but ensures the bosses it is “pro-business” as well as “pro-worker”. Read the bill here; Free Our Unions will carry analysis and responses in the coming days and weeks.

EmploymentRightsBill2024Download

The Bill can also be accessed online here. The government has also posted “supporting documents” here.

Anti-union laws bar striking on crucial working-class issues

A discussion article by Janine Booth, Free Our Unions supporter.

Tory leader Rishi Sunak’s line of attack on the Labour government’s unpopular decision to scrap winter fuel payments for most pensioners is to accuse Prime Minister Keir Starmer of “putting union bosses before pensioners”.

Leaving aside the typical but irritating use of the term “union bosses” especially as he was referring to union members receiving pay rises), Sunak can get away with this because of the Labour government’s terrible decision, and because of Britain’s anti-union laws.

The General Secretaries of Unite, PCS and the TUC have all publicly stated their opposition to the government’s decision. But Starmer and Chancellor Rachel Reeves seem to be in no mood to be moved by words alone.

Industrial action could very well persuade them, but that would be unlawful. UK industrial relations law insists that unions only take action in pursuit of a “bona fide trade dispute” with their employer, and government policy on financial support for pensioners falls outside that.

But this is very much a trade union issue, which is why the General Secretaries spoke out about it. Pensioners are retired workers, many of them retired trade union members. 

Moreover, while each individual union organises a particular section of workers, together they make up the trade union movement, the only mass movement of the working class. The big majority of pensioners are working class, and issues impacting our class are the business of our unions, whether it is a “bona fide trade dispute” with a specific employer or not.

Similarly, unions have spoken out about the Labour government’s refusal to scrap the two-child benefit cap, the National Education Union pointing out how child poverty hampers education. But taking industrial action over the issue would be unlawful.

Without that industrial action, union leaders’ words are not heard by many, who may then fall for multi-millionaire Sunak’s line that greedy trade unionists are taking money from pensioners.

The lesson from this? To win on crucial working clasa issues, we need to win the repeal of anti-union laws.

TUC to discuss motions reaffirming call for repeal of all anti-union laws

The upcoming TUC Congress, due to take place from 8-11 September in Brighton, will discuss several submissions relating to the fight against anti-strike and anti-union legislation.

A motion from Scottish teachers’ union EIS calls for the repeal of the 2016 Trade Union Act. An amendment to this motion from shop workers’ union Usdaw would commit the TUC to continuing to “campaign for the full removal of all anti-trade union legislation.”

The Fire Brigades Union has also submitted a motion “recommitting to the TUC’s longstanding policy for the repeal of all anti-union laws and for positive legal rights for trade unions.”

If these motions are passed, as they almost certainly will be, the TUC must use its resources to organise real, active campaigning around their demands. The Labour government must feel real pressure from the wider labour movement to remove legal obstacles to our right to organise and strike.

All motions to TUC Congress can be read here.

“Repeal anti-union laws”: Fire Brigades Union motion to TUC Congress

The Fire Brigades Union has submitted the following motion to TUC Congress 2024 (8-11 September, Brighton). Its perspective – combining a focus on holding the Labour government to account on its pre-election commitments with the need to push further for repeal of all anti-union laws – is similar to the one we set out here.

Congress reiterates its opposition to the Minimum Service Levels (MSLs) legislation, which attempts to outlaw effective strike action in key unionised sectors of the workforce. Congress deplores the Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024, which came into force on 21 March 2024.

Congress condemns these regulations, which state that fire and rescue control rooms and other firefighters must function during industrial action “as if it were a non-strike day”.

Congress further condemns these regulations, which state that 73 per cent of fire appliances usually deployable on a non-strike day must be deployable on days when industrial action is taking place.

Congress applauds the FBU’s campaign to persuade the devolved administrations, local fire authorities and the fire employers to refuse to issue work notices for MSLs.

Congress notes the Labour Party’s 2024 general election manifesto committed to implementing ‘Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People’ in full – introducing legislation within 100 days.

Congress further notes that Labour’s Plan to Make Work Pay committed to repealing the Trade Union Act 2016, the Minimum Service Levels (Strikes) Act and other anti-union legislation.

Congress recommits to the TUC’s longstanding policy for the repeal of all anti-union laws and for positive legal rights for trade unions.

Congress demands that the new Westminster government immediately repeal MSLs, the Trade Union Act 2016 and take urgent action to remove other anti-union laws.

Don’t just celebrate, mobilise! Hold Labour to repealing the TU Act

By Sacha Ismail, member of Unison and FBU

The labour movement should organise and campaign to pressure the Labour government to ensure that at least the following is included in its upcoming workers’ rights legislation:

  • Complete repeal of the 2016 Trade Union Act
  • Complete repeal of the 2023 Minimum Service Levels (Strikes) Act, with no “replacement” such as codes of conduct
  • Repeal of the 2022 amendment to the agency worker regulations allowing use of agency workers as strike-breakers
  • Amendment of the law to allow workplace and electronic balloting for strikes / industrial action.

See also this motion submitted to TUC Congress 2024 by the Fire Brigades Union (FBU).

Free Our Unions fights for the labour movement to campaign for repeal of all the anti-trade union laws, going back to 1979, and their replacement with strong legal rights for workers and unions, including a strong right to strike. Since our campaign began, we have argued against the idea that repealing the most recent anti-union laws is enough. But in the weeks and months ahead, while maintaining our wider demands, we should bring voice and pressure to bear for the Labour government to carry out its recent commitments on repealing the recent ones.

But is that necessary? If Labour has made commitments recently then it’s committed, surely?

That is not the right way to see things. Here’s why.

In general this Labour leadership and government are not reliable when it comes to carrying out pro-working class demands. Moreover they are undoubtedly continuing to come under major pressure from big business, pressure they are constitutionally inclined to respond to. They have already rowed back on a series of earlier commitments on workers’ and trade union rights.

Labour’s commitments

Beyond those general considerations, let us review where we are on the right to strike and repealing anti-union laws.

The latest version of Labour’s “New Deal for Working People”, published just before the election, does commit to repealing the Trade Union Act 2016, the Minimum Service Levels (Strikes) Act 2023, and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 – the last of which allows the use of agency workers as striker-replacements. It also commits to modifying the anti-union laws to “allow modern, secure, electronic balloting and workplace ballots” for strikes / industrial action. (See p12 here.)

This final pre-election version of the document was published after extensive negotiations with Labour-affiliated trade unions, including a union pushback after rumours about the party watering down the New Deal.

The Labour general election manifesto did not mention these specifics, but did commit to “implementing ‘Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People’ in full” (emphasis added – the plan referred to is the latest version of the New Deal discussed above).

Rowing back?

Discussion about Labour rowing back on some of its workers’ rights commitments have not tended to focus on the question of anti-strike laws. But:

• The government has announced non-implementation and repeal of the Minimum Service Levels Act. But there is now silence on the question of the Trade Union Act – and now reports in the media that the government may amend rather than fully repeal the Act, lowering the turnout threshold for strike votes contained in the legislation rather than abolishing it and maintaining the two week notice period it introduced. The Trade Union Act has been instrumental in hamstringing public-sector strikes in particular over the last decade, notably in the NHS.

• There are also reports that the government may not repeal the amendment to the agency worker regulations on the grounds that it was struck down by the High Court. But the court ruled against the change on grounds of lack of consultation, and the Tories explored bringing it back in a new form. The amendment should be repealed.

• In this context, it does not seem impossible the government could row back on the Minimum Service Levels law too, for instance by promoting “voluntary” codes of conduct for minimum service levels that would still undermine strikes.

This is all vague? Yes, but the problem is the whole situation we find ourselves in is “vague”. We do not have clarity on what the government will do and so everything is reduced to speculation. But silence, reports and the general character of the Labour leadership mean that we should not assume everything will be good. Instead, we should organise, speak out and campaign.

Time to campaign

Labour movement celebration about repeal of the MSL law is fair enough, but it needs to be a springboard for further pressure and demands – which can block further backsliding, maximise what we win now, and put us in the best position to push forward to wider gains. The problem is that instead much of our trade union leadership is presenting it as “job done”.

We should seek to organise and mobilise as much of the labour movement as possible to demand that, in regards to the right to strike, at least the following are included in upcoming employment rights legislation:

• Complete repeal of the 2016 Trade Union Act

• Complete repeal of the 2023 Minimum Service Levels (Strikes) Act, with no “replacement”

• Repeal of the 2022 amendment to the agency worker regulations

• Amendment of the law to allow workplace and electronic balloting.

Labour should, in line with policy passed at its conference, TUC Congress and numerous union conferences, be going much further – to repeal all the anti-trade union laws. The labour movement should start seriously raising that. But holding the party to its general election commitments is the absolute bare minimum we should be demanding immediately.

Rather than resting on its laurels the labour movement should mobilise and agitate through as many channels as possible to make these demands. We need to discuss how.

Renew the fight under the new government!

By a Free Our Unions supporter

The election of a Labour government, committed to repealing at least the two most recent sets of anti-union legislation, is a step forward for union and workers’ rights. How much of a step forward depends substantially on how effectively the wider labour movement is able to organise to push Labour to go further, and faster.

Without organised pressure, it is much likelier that Labour will renege on even its existing commitments, let alone extend them. 

It’s important the labour movement continues to press the demand, which is the policy of almost every union and of the TUC, for the repeal of all anti-strike laws, and their replacement with legally-enshrined positive rights.

There is also a place for targeted campaigning around specific laws, for example the prohibition on striking in solidarity with other workers. If this law was repealed, it would allow directly-employed workers to strike in support of and alongside outsourced workmates, thereby strengthening both groups’ demands. Angela Rayner has said Labour will “oversee the biggest wave of insourcing of public services for a generation”: why wouldn’t the party want to give workers greater freedom to fight for its own declared policy at workplace level?

Campaigning culture in the labour movement has diminished to a significant degree, with issue-based campaigning now typically (ironically) “outsourced” to external bodies, or reduced to online petitioning efforts or photo-ops for a few senior union officials. Developing a culture where unions use their structures, that give them a base in every town and city in the country, to mobilise workers to take political action will take time. But we can make a start.

Free Our Unions supporters are pushing within their own union branches and regions for local actions including street stalls, demonstrations, and lobbies of MPs at local and national level. We want to see the labour movement scale that action up, including by supporting any group of workers that takes action in defiance of the laws, such as the Cammell Laird shipyard workers who recently refused to cross RMT picket lines. The charter produced by the CWU Greater London Combined branch can also be a basis for organising discussion and action.

If you want to organise within your union for it to do more on this issue, please contact Free Our Unions to discuss how we can work together.

RMT London Transport Region reaffirms stance on anti-strike laws

The London Transport Region of the RMT union, which organises workers employed by Transport for London, London Underground, and subsidiary/outsourced companies, has passed a new resolution on fighting the anti-union laws.

Part of the resolution commits the region to supporting the new initiative, launched by the CWU Greater London Combined (telecoms) branch and supported by Free Our Unions, which aims to coordinate union activity to pressure Labour to go further on repealing anti-strike laws.

Free our unions: repeal all the anti-union laws

“New Labour tried to present their reforms as a final settlement. We have to categorically reject that. Our goal is to repeal the anti-union laws of the ’80s.” – Angela Rayner, 2014

Notes

1. Long-standing RMT policy supporting the abolition of all legal restrictions on unions’ right to organise and strike.

2. The likelihood of a Labour government.

3. That in discussion on the parameters of Labour’s “New Deal for Working People”, the pivotal issue of repealing the anti-trade union laws has tended to get lost.

4. Labour is committing (at the moment) only to repealing the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023. These are only the latest in numerous anti-strike and anti-union laws going back to 1980.

5. That TUC Congress, many individual union conferences and Labour Party conference have voted repeatedly for repeal of all anti-union laws.

Believes

1. The trade union movement’s collective response and activity on this issue has so far been inadequate. The sole national demonstration on the issue was called in Cheltenham, rather than London, and was under-resourced in terms of mobilisation.

2. To resist anti-strike laws under the current Tory government, and/or to force significant concessions from an incoming Labour government, a much more active, visible, assertive campaign is necessary.

3. The whole labour movement, including unions like ours which are not affiliated to the Labour Party, must mount a combative campaign, now, to demand an incoming Labour government repeal all anti-union laws. We must not adopt a “wait-and-see” approach, but rather campaign assertively, now, to demand Labour goes further.

Resolves

1. To call on Labour to commit to repealing all anti-union and anti-strike laws, back to the 1980 Employment Act (and including the Public Order Act 2023), and replace them with strong positive legal rights for workers and unions, including strong rights to strike and picket.

2. To add our name to the statement along these lines initiated by CWU Greater London Combined telecoms branch (https://bit.ly/scrapantiunionlaws).

3. To write to CWU Greater London Combined branch proposing a joint planning meeting with a view to organising a demonstration in London.

4. To invite a speaker from the Free Our Unions campaign.

General election: organise to push Labour to repeal anti-strike laws

With Labour likely to form the next government, the wider labour movement must push the Labour Party to go further on repealing legal restrictions on the right to organise and strike.

For the appeal / statement referred to in this article, click here.

By Sacha Ismail

Debates around Labour’s “New Deal for Working People”, including possible attempts to further water it down, have tended to touch only lightly on the pivotal issue of anti-union / anti-strike laws.

While representing the first rolling back of anti-union laws since the 1970s, the proposals would simultaneously leave the great bulk of the Thatcherite anti-union laws of the 1980s-90s in place.

The latest version, put up on Labour’s website towards the end of May 2024, makes the following commitments:

“Over the past 14 years, the Conservatives have consistently attacked rights at work, including through the Trade Union Act 2016, the Minimum Service Levels (Strikes) Bill and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 – all of which Labour will repeal to give trade unions the freedom to organise, represent and negotiate on behalf of their workers…

“The law governing trade union statutory ballots is antiquated and fails to recognise the huge steps trade unions have made to engage and communicate with members. The current system of only allowing statutory trade union ballots via the post significantly impacts turnout and hampers democratic engagement with members. Labour will allow modern, secure, electronic balloting and workplace ballots…”

If this is meaningfully carried out, it would mean reversing the laws governing industrial action to where they were in 2015, before the extremely serious attacks of 2016 and 2023, and modifying earlier anti-union laws by removing the insistence on postal ballots specifically. This is no small matter.

The labour movement should mobilise to ensure these commitments, along with others in the New Deal document, are carried out as fast and in as thoroughgoing a form as possible.

However, in terms of anti-strike restrictions – as in other areas – that is nowhere enough. It means accepting the core of the Thatcherite drive to restrict trade union freedom.

Even a solid and better-than-expected implementation of the New Deal would mean:

• A continued ban on solidarity action, strikes and industrial action in support of other workers
• A continued ban on strikes and industrial action for anything other than narrowly defined “trade dispute” issues
• Heavy state regulation of when and by what processes workers can decide to strike etc
• Heavy state regulation of union’s internal procedures
• Heavy limits on picketing

Whether or to what extent we can successfully challenge these kinds of restrictions, in the current political climate, remains to be seen. But we should try.

That is why trade union organisations have launched an appeal calling for repeal of all anti-trade union / anti-strike laws and their replace with strong legal rights for workers and unions – including strong rights to strike and picket.

The statement was initiated by CWU Greater London Combined (telecoms) branch. At its executive meeting this month the Bakers’ Union (BFAWU) took a decision to back the statement and the initiative.

We are calling for trade union organisations at every level to add their names and to get in touch to coordinate campaigning. You can do so here.