The right to strike
In the UK you have the right to strike, but only if certain legal conditions have been met. One of those is that the action has been approved by a certified trades union and is “official”, so you are at the mercy of the union bureaucracy. If you don’t work for a period you don’t expect to be paid. If you quit a job you would at least get paid for the work you had done; and you wouldn’t expect fines, claims for damages from your boss for lost profits or the threat of imprisonment. If you strike unlawfully you can face all of those as well as losing your job – but there are ways to avoid these pitfalls.
So what do you have to do for a strike to be lawful?
There has to be a trade dispute involving the members of a certified union working in a specific industry, for a specific employer or in a specific bargaining unit. The dispute has to involve their employer, so an industry-wide strike can only be decided upon and supported by workers employed by companies involved in the dispute. If your company settles the dispute you can neither go on strike nor vote to do so even if the dispute continues everywhere else and you would benefit from a successful outcome or suffer from a defeat. For example, Third Sector workers cannot strike in support of, or vote on, any Local Government claims even where these determine their own pay and conditions.
Secondly, the decision to take industrial action has to be made by a ballot or secret vote. The decision to have a ballot would be made by the relevant delegate body for national disputes. For a local dispute a meeting would have to be held which is open to all the members affected. The motion proposing a ballot on industrial action must be circulated to all those eligible to vote so that they know that a vote is to be held and what that vote is about; and so that they can attend the meeting and vote. The meeting must be open only to those eligible to vote. An attendance record must be kept and identification may be required.
For the motion to be carried and the ballot to go ahead the union’s rules must be followed and usually a simple majority is all that is needed. However, factors such as turnout, numbers voting and the size of the majority might also come into play. Aside from the threat of a legal challenge, the union’s bureaucracy has to approve the vote and to organise the ballot. They will be influenced by the likelihood of a legal challenge and of the success of both the ballot and the proposed industrial action, their relationship with the employer and their political stance. The best protection against interference is to ensure the best possible attendance at the meeting and to win the argument for industrial action before the meeting so that people will turn up and vote for the motion.
The ballot itself is the key. Membership records must be accurate and up to date. Everyone who is eligible to vote must receive a ballot paper, and no one who is ineligible can receive one. If this doesn’t happen, the ballot will be overturned in court if challenged. The British Airways strike ballot in December 2009 was overturned because union members deemed unaffected because they had already accepted redundancy packages received ballot papers.
There will usually only be one question on the ballot paper, which will be vague and will simply ask if the member is in favour of “industrial action, including strike action” or “industrial action short of strike action” (such as a work-to-rule, overtime ban or boycott). No period or extent of industrial action will be specified, that is for the relevant union committee to decide and explained to the members before the ballot.
The state deliberately tries to create confusion and apathy among the membership. Low turnouts in ballots mean employers can question their legitimacy and possibly challenge them in the courts.
Issues in dispute
The industrial action has to be around a clear issue – a pay claim, of the reinstatement of a victimised union member, of the withdrawal of redundancy threats – over which the union is in dispute with the employer. Things can get tricky if negotiations progress or if the employer changes its stance. So, a significantly improved pay offer may make the result of the ballot no longer relevant or mean that industrial action is suspended while agreement is sought. Employers can also get an injunction against the continuation of industrial action or even against the validity of the ballot in the changed circumstances. In such cases, either the dispute has to be called off or the action suspended while another ballot has to be held.
The last condition is notice of the industrial action, which must be at least seven days’ for the action to be legal. Dodgy union officials have been known to call off strikes when employers have said that they have not received notice, such as during the London Metropolitan University strikes last year when UNISON officials called off one strike at the last minute because the employer said that notice had not been received. That might protect the union’s corporate interests, and its officials, but if workers strike regardless or unaware that it has been called off they lose legal protection.
So, what can happen if the strike is not lawful?
Workers lose the legal protection against victimisation for trades union activities. You can be sacked for breach of contract. Even if the strike is lawful you will lose pay; if boycotting an activity which constitutes a significant part of your job, you may also have a proportion of your pay withheld.
The basic legal protection unions and their members enjoy is immunity from torts – legal damages. Basically, your boss can sue you and your union, if they have backed unlawful action, for damages for loss of profits, loss of business, damage to reputation, etc caused by the action. This is why unions and their officials will oppose unofficial action and formally repudiate it – to avoid legal responsibility and damages – regardless of their real attitude towards it. If the action is unofficial action, those deemed legally responsible will be sued rather than the union and its officials.
Worse may follow defying a court injunction. Striking in defiance of one constitutes contempt of court and you can be fined or jailed indefinitely until the contempt is purged. However, the employer will usually have to go back to court to demonstrate that you are breaching the injunction and factors like bad publicity, the dispute spreading, etc may dissuade them from this. In the ‘80s four building workers successfully defied an injunction against them taken out by John Laing for picketing its building sites in protest at blacklisting.
If that’s legal protection, why bother?
Not everyone is ready for a full-scale confrontation with the law. Real protection comes through strength of organisation and economic clout, and you need the former to get over the hurdles to hold a legal strike anyway. Once you’ve got that far, the widest possible participation by members through picketing and other activities will keep momentum going. Winning over non-union members and others continuing to work is crucial and should be based on argument and moral pressure, not abuse or intimidation which will only alienate them. An active strike will give people confidence in themselves and their organisation and empower them in the struggles which will come after the strike. It will also throw up new leaders who renew the organisation and replace those exhausted in the struggle.