John Hendy QC on the right to strike in the UK Page 2-3
Celebrating 50 years of the European Social Charter Page 3
Why should we be concerned about cuts to the ILO? Page 4
Inequality grows as union rights are restricted Page 4
United Campaign UPDATE
FOR TRADE UNION FREEDOM
Issue 19 Summer 2011 FREE
CABLE: We won’t restrict your right to strike ...unless you try To use it
Reactionary calls for tightening of Strike laws have grown as workers Begin Fight back against the cuts Dominic Raab, a backbench Conservative MP tested the water back in April by introducing a 10Minute Rule Bill aimed at introducing minimum thresholds to union ballots for industrial action. Although he won little support, even from within his own party, those behind calls for toughening of laws will have been pleased the issue is back on the agenda. Raab’s failed attempt was followed by Vince Cable’s address at GMB Congress in early June where his threats to introduce further restrictions on the right to strike angered trade unionists. Despite acknowledging that “strike levels remain historically low” and that there was not a “compelling “ case for tightening strike laws, Cable went on to say that if
workers’ continued to exercise their right to strike, the pressure on Government to act would “ratchet up”. This was the first explicit warning from a Government Minister over the introduction of further antitrade union laws and an attempt to pacify union outrage was quickly made by Employment Minister Ed Davey when he described a rush to tighten strike laws as “antagonistic and inflammatory”. Despite this seemingly more liberal line from the Government, Davey echoed Cable’s warning that “if there’s a case for taking action, we’ll take it”. It is clear that this is just the beginning of a right wing attempt to tighten the net on trade unions even further. The United Campaign will continue to work with our supporters to fight against restrictions on trade union rights and freedoms. John Hendy QC, the UC’s National Secretary writes overleaf on the current state of UK law on the right to strike.
Dispelling the myths – trade union balloting thresholds and the right to strike Ÿ The right to strike is guaranteed in every significant human rights charter as a fundamental human right - despite this, there is no legal right to strike in the UK Ÿ The laws on balloting for strike action require trade unions to have the support of the majority of those voting – the same requirement for determining support in any ballot in any organisation the length and breadth of the country – including in General Elections Ÿ The right wing lobby has called for additional requirements in union ballots with the introduction of a 40% threshold. 40% of those eligible to vote must vote ‘yes’ in order for strike action to be legal this automatically counts those who have not voted as voting against Ÿ Imposing a threshold undermines the fundamental human right to strike Ÿ Even in cases where members vote overwhelmingly for strike action, there is nothing to stop employers dragging unions to court over spurious technicalities in order to gain an injunction against action.
Issue 19
Summer 2011
FOR TRADE UNION FREEDOM
John Hendy QC on the Right to strike in the UK Mr Cable threatened GMB delegates during his address to Congress this year: if workers take strike action to defend themselves against this government’s attack on working class people, laws will be tightened against strikes. In other words if we are all good boys and girls he will leave us with the luxurious right to strike (a “fundamental principle” he called it) bequeathed to us by 13 years of Labour government. But let me explain our present right to strike (“no more than a mere slogan” as one Court of Appeal judge described it): For the individual worker: all forms of industrial action (including working strictly to contract and banning voluntary overtime) are in fundamental breach of a contract of employment. For that you can be sued, have pay deducted (sometimes greater than the amount you would have earned), you can be disciplined, you can have noncontractual benefits withdrawn
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rs take If worke to tion strike ac selves them defend nment’s r e v o g this g against n workin ill o k c a t t a sw ple, law o e p s s cla ened be tight strikes against
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without redress, and, above all, you can be sacked.
For the trade union: Every form of industrial action called or supported by a trade union is unlawful. There is protection against some forms of unlawfulness - if the union goes through all the hoops and hurdles of ballots and notices.
It is still almost impossible to call lawful industrial action, even after the Court of Appeal decision a couple of months ago in which I had the honour to represent RMT and ASLEF. There the court held that not every trivial accidental failure will lose protection from the common law. The irony of that welcome decision will not be lost on those who fought hard for John McDonnell’s Lawful Industrial Action (Minor Errors) Bill, since what the Court of Appeal have given us is exactly that which the Bill was intended to achieve - but there were not enough Labour MPs prepared to attend the House of Commons to allow it to go forward. But ballots and notices are only part of the problem. Some industrial action is absolutely banned. The most important is secondary action. This means that workers with different employers cannot support each other, no matter how closely involved workers or employers are with each other.
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Feature: John Hendy QC on the Right to Strike in the UK
Edited Extracts from his speech to the 2011 GMB Congress limits on th e right to strike in the UK are the pri ncipal rea so n why union s are so se verely hampered in defendin g not just the ir members but the workin g class gene rally The limits on the right to strike in the United Kingdom are the principal reason why unions are so severely hampered in defending not just their members but the working class generally. This state of affairs is not just unfair; it is in breach of international law. The judicial committees established by the treaties ratified by the UK, have persistently declared this breach. These are decisions on the conformity of UK law with the Conventions of the International Labour Organisation, the provisions of the European Social Charter and of the International Covenant on Economic, Social and Cultural Rights which guarantee the right to strike. The European Court of Human Rights has also held that the European Convention on Human Rights contains a right to strike; that is why RMT and UNITE are taking cases to the ECtHR on the lack of a right to strike in the UK.
Issue 19
Summer 2011
The Committee concludes that the situation in the United Kingdom is not in conformity with Article 6(4) of the Charter on the following grounds: Ÿ the scope for workers to defend their interests through lawful collective action is excessively circumscribed; Ÿ the requirement to give notice to an employer of a ballot on industrial action, in addition to the strike notice that must be issued before taking action, is excessive; Ÿ the protection of workers against dismissal when taking industrial action is insufficient. That disgraceful situation is not enough for the government it seems. Mr Cable threatened unions with the further restrictions signposted by the Raab Bill and by the CBI President in recent weeks. What they propose is that in a strike ballot not only must the union achieve a majority of those voting but a majority of the entire workforce (or at least 40% in the CBI proposal). That means that abstentions will be counted as no votes. If that requirement had been in place for the last parliamentary election most MPs would not have been elected (and the Lib Dems would have been wiped off the map). Trade unions must continue to stand up and fight against the vindictive and vicious measures Mr Cable’s government is taking to make the working class pay for the crisis brought about by the bankers . See John Hendy QC’s full speech to GMB Congress at www.unitedcampaign.org.uk
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Feature: John Hendy QC on the right to strike in the uk
Let me give you a taste of the judicial language used. Last year the Council of Europe’s Committee on European Social Rights expressed itself thus:
FOR TRADE UNION FREEDOM
Celebrating 50 Years!
n a e p o r ESoucial Charter
Fifty years since it’s adoption in 1961, the European Social Charter remains one of the Most important Documents on human rights and freedoms. Despite a Tory Government signing up to the Social Charter in 1961, the social rights committee that monitors compliance have repeatedly criticised successive governments Not to be confused with the over their failure to protect the right European Convention on Human to strike in the UK. Rights which guarantees civil and political human rights, the European Fifty years of the European Social Social Charter complements the Charter marks an impressive in the fight for European Convention by milestone guaranteeing, in addition, social and fundamental human rights, but with economic rights. It is significant UK trade union laws amongst the because it was the first international most restrictive in Europe, the fight treaty to officially recognise the must continue for the Charter to be properly recognised in UK law. fundamental human right to strike. The European Social Charter was the first international treaty to contain explicit guarantees on the right to organise and bargain collectively.
Article 5 - the right to organise With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.
Article 6 - the right to Bargain collectively With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: 1. to promote joint consultation between workers and employers; 2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.
Issue 19
Summer 2011
FOR TRADE UNION FREEDOM
The international context to send workers in Egypt, Why we should all be was underlined by MP Denis Tunisia, Libya, Bahrain and who described Yemen who need ILO help Concerned About condem MacShane the cut as a “terrible signal more than ever”. cuts to the International Wage Inequality grows As Union Labour Organisation In March the Tory-led social protection, better rights are restricted Government announced employment practices and plans to cut DfID funding to the International Labour Organisation (ILO), the UN body that sets international standards in labour law. Although the UK will still pay the minimum affiliation fee, the UK will no longer support the ILO’s anti-poverty targets with additional funding.
decent work opportunities.
The ILO, founded in 1919 by Britain, is based on tripartite collaboration between governments, employers and trade unions. The ending of UK support for this important organisation for the promotion of democratic trade unionism represents a major attack on workers’ rights across the world.
As Owen Tudor of the TUC says: “There is, of course, nothing wrong with giving poor people a handout, but it sits uneasily with other rhetorical flourishes from Conservative politicians who demand in the UK that people be given ‘a hand up, instead of a hand-out’: there is no more effective ‘hand up’ than the freedom to organise and bargain collectively, the right to decent work and equal treatment, and the freedom from dictatorship that the ILO has provided across the world for decades.”
Instead of supporting the central ILO philosophy of social justice through enforcement of international human and labour rights, the Tory-led Government favour providing basic education and low-level aid.
Ministers have stated they do not believe the ILO is an effective tool for combating poverty – in actual fact the Government simply do not like how the ILO tackles poverty – through the promotion of rights at work,
It may come as no surprise to those within the trade union movement that since trade union rights have been progressively restricted, inequality has risen significantly. A recent report from the TUC has highlighted that as a share of the national wealth, wages have fallen sharply and there has been a steady growth in ‘bad jobs’ characterised by insecurity and poor wages, while the richest have seen their earnings increase.
members is hugely impeded.
The growth in job insecurity and poor pay and conditions has mirrored the introduction of anti-union legislation. UK laws governing trade union rights are already the most restrictive in Europe and any further restrictions will only act to drive the gap in inequality wider still. The Government has already opened up the employment law books for ‘consultation’ from the business lobby and has indicated its intention to It is abundantly clear that hack away at hard won the balance of power employment rights such as between the employee and laws against unfair dismissal. the employer is weighted towards the interests of the Trade unions are the first line employer. The right to act of defence in protection of collectively at work goes rights at work. With the some way to recasting this business lobby straining on imbalance. However, if the leash, it is no wonder unions are tied down in threats of further anti-union restrictive legislation, their legislation have already ability to effectively defend begun to circulate. the interests of their
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