What’s happening is three things. The first is that in disputes which involve large numbers of workers, the possibility of being able to apply for an injunction based on a failure in the balloting process is that much greater.
More workers involved means more complexity in meeting the legal requirements, especially where there are many different grades of worker and they work at many different workplaces.
The second is that in the last couple of years case law has set new precedents which widen the terrain for employers to apply for injunctions. One employment law firm has been key to pushing this project.
Also, the use of the principle of “proportionality” has arisen, whereby if the strike is likely to affect people and business in a very deleterious way, it can be struck down.
The legal noose around the unions’ necks is tightening with each new injunction, and the granting of the appeal for Unite in the BA dispute does not change that.
The pace of injunctions is also increasing, with seven in the first five months of 2010 in addition to the 11 last year. This may just be a coincidence of certain disputes happening together, or it may reflect employers moving to respond to the recession and public spending cuts, whereupon they are met with resistance by those unionised workers that are the most capable of mounting effective resistance.
The third is that employers are not interested in challenging the right to strike, given that the number of strikes that exist. Rather, what they are interested in doing is challenging the right to have an effective strike.
Between 2006 and 2008, 144 strikes took place but there were only 15 injunctions applied for. The strike figures for 2009 are not out yet but there were 11 injunctions for that year.
When you examine which strikes the employers are trying to target via injunctions, it is the ones in transport (bus, rail, underground, air), prisons and the Royal Mail, where the strikes have an immediate and considerable impact upon the employers’ operations — to the extent that they pretty much halt them.
They can because of high levels of unionisation and the nature of the employer’s operations where the service is “perishable”. That minority of employers feels much more threatened by the strikes.
Even though there have been between 100-200 strikes per year for the last few years, the vast, indeed the overwhelming, majority are not subject to applications by employers for injunctions to stop them. Neither are the many other cases of industrial action short of a strike.
In fact, there are around a thousand ballots for strike and industrial action short of a strike every year. Of those that are likely to have their mandates for action implemented, again, the overwhelming majority are not challenged by employers in this way.
These figures cover the big, medium and small industrial disputes, and all are likely to be able to be shown to have fallen foul of some aspect of the unions’ obligations under law. Yet there are no applications for injunctions forthcoming.
There’s been talk — but only talk — about outlawing (official) strikes in what are deemed essential services, i.e. transport, hospitals, fire and rescue and so on.
What is more likely is that the law on strike mandates will be changed first. What the Tories propose to do is say that a lawful mandate is one in which the simple majority for a strike must also equate to 40% of all those entitled to vote.
This means those who do not vote are counted as “no” votes and this is based on the balloting regulations for statutory union recognition (which was introduced on 6 June 2000). This would be a far cleverer move than risking the law becoming an ass through employers trying to find ever more marginal technicalities to prevent strikes. The government could present it as a democratic tidying up of the law, while at the same time as giving employers an incentive to influence the ballot result. In other words, it would avoid a potentially big confrontation in society over the right to strike at a time when the government will have so many other battles to fight with unions over cuts in public expenditure.
In terms of resisting and defying the law, there’s always a role in being as competent and diligent as possible so that no hostages to fortune are given to employers, but that is clearly to remain corralled within the parameters of the existing anti-union law.
Campaigns like the United Campaign for the Repeal of the Anti-Trade Union Laws are needed. But it is, unfortunately, woefully inadequate because it does not tap into or create a rising mobilisation against the law within workplaces. The last time something like that happened was around Gate Gourmet in 2005.
What is needed is defiance of injunctions by union members through taking unofficial action. This offers the best prospect of either making the law a dead letter and/or building up a head of steam around the issue so that it becomes a live, tangible one which other workers can relate to.
Last time round, it took the jailing of the dockers in Pentonville prison to make this happen.