First anniversary of the anti-Trade Union Act

30 January 2018

(as featured in the ASLEF Journal, February 2018)

It's the  first anniversary next month of the Tories’ Trade Union Act (2016)being in operation. Just to recap, when it went live on 1 March 2017, the most important changes the Act brought in were that for (compulsory) ballots for strikes and industrial action to have a lawful mandate, they must meet the following thresholds: (i) at least half of eligible union members are required to vote, so a minimum turnout is established; and (ii) in a selection of ‘essential’ public services, like transport, there is also the requirement that at least 40% of all those entitled to vote must vote for action (meaning non‐voters are treated as ‘no’ voters).

The Act’s other main measures concerning industrial action are reducing the validity of mandates from being open-ended to six months (unless extended to nine months with the agreement of the affected employer) and increasing the period of notice to employers of action from seven to 14 days.

So has the Trade Union Act 2016 been the disaster for unions that its many critics said it would be?

Although we will not know its full impact on the number of ballots held until the government produces the figures for 2017 this summer, it does not seem that unions have been cowed by the threat of not passing the new thresholds into not holding ballots.

However, there may have been fewer national ballots than might have been expected – with just the CWU, UCU and Unison holding them. Unite, the largest trade union in Britain, seems to be undertaking more ballots than it did previously and the RMT has held as many ballots in 2017 as it did in previous individual years.

But what has been the outcome of these ballots? The overwhelming majority have been won – although there have been a few high profile and damaging failures amongst unions like the RMT, Unison and Unite to pass the new thresholds.

It is for this reason that some unions are using consultative ballots on industrial action prior to holding the statutory ballot. Unions such as the PCS and UCU have used these to identify the areas of strength and weakness of membership (like not voting and voting ‘no’) so that, come the statutory ballot, they can put extra resources into the weaker areas to make sure they win the ballot.

As expected ASLEF had no problems surpassing the thresholds – as highlighted by its ballot results on London Underground, Croydon Tramlink, and Southern.

When we look at when the mandates are implemented, two new features stand out. The first is that many unions are now giving employers notice up front of a whole raft of action – most obviously strike days. Unlike before, when unions would give notice of the first few days of action, they are now giving notice of action for many, many months ahead.

The second is that most unions have moved from predominantly using relatively infrequent one day strikes to strikes lasting many days – and even, in some cases, all‐out strikes. In other cases, when one day strikes are still used, they are concentrated together so that they now pack a much bigger punch.

Both are the result of the reduced mandate length and the increased notice period to employers.

Without unions responding in this way, employers could string out negotiations past the length of the mandate, forcing a re‐ballot, as well as making contingencies to undermine the potency of one‐day strike actions.

However, it should be said that just having more strike days and longer strikes is no magic panacea for, in a number of cases, like British Airways, Southern Rail, Mears housing maintenance and the Picturehouse cinema chain, strikes have gone on for many, many months.

This heads up the issue of whether the chosen strike tactics are able to not just disrupt but sufficiently disrupt or stop an employer’s operations and to do so at a significant cost to the employer. On the railways, this can be an especially challenging task because some franchises effectively indemnify the employer from losses as a result of strikes.

As with the publication of the statistics on balloting, we will not know the number of strikes for 2017 until this summer so we won’t be able to make a full assessment of the situation until then. That said, the figures we do have for 2017 so far do not suggest much of a change.

It is an irony of the Tories’ Trade Union Act that it has not so far proven to give employers any more leeway to gain injunctions to stop strikes and industrial action than before. The number of injunctions and threats to apply for injunctions in 2017 was pretty much the same as in previous years.

In the one case which specifically related to the new Act – concerning the pilots’ union, BALPA – the judge rejected the argument of the employer, Thomas Cook, that BALPA had not furnished sufficient information to members with the ballot paper.

On picketing, there have been some cases where unions have been cautious about how many sites to have when they could not provide the newly-required picket supervisor. Elsewhere, though, picketing carries on as before – not much used but more than the numbers allowed by the Tory Acts of the 1980s.

It will be interesting to see where we are this time next year when the Trade Union Acthas bedded in more. Certainly, the experience so far is that unions have successfully risen to the challenge and there’s a sense of plus ça change, plus c’est la même chose (‘the more it changes, the more it stays the same’). Because workers will still strike when they have manifest grievances even though unions are still prevented in law from undertaking solidarity action.

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