As Britain’s strike wave continues to grow, we need a more serious response to the Tories’ latest repressive legislation.
This article was first published by rs21.
When the Tories and Liberal Democrats passed the Trade Union Act 2016, unions argued that it was unnecessary because strikes were already extremely rare. In contrast, the Tories’ publication of the Transport Strikes (Minimum Service Levels) Bill comes at a time when strikes are increasingly common, visible and popular. Many are winning considerable concessions from employers, whether or not they fully defend real wages.
As I write, the national disputes in the rail industry and Royal Mail remain unresolved; nurses, civil servants and university lecturers have voted for action; and there are a host of smaller disputes, often involving Unite. Other groups of workers are balloting.
This recovery of strike action is being driven by four factors. The first and most obvious is the rapid rise in prices, which have risen by an average of 12.6% in the year to September, as measured by the Retail Price Index (RPI). High inflation increases the cost to workers of not taking action. Secondly, there is a tight labour market. It’s not just that official (fiddled) unemployment figures are the lowest since 1974. The number of vacancies is historically high. A tight labour market reduces workers’ fear of dismissal, reducing the risk of taking action. Thirdly, some of the strikes, particularly those on the railways, have been disruptive enough to puncture media indifference to achieve widespread visibility, inspiring other workers – including some not in unions – to turn to unionisation and strikes to defend their livelihoods. Finally, this situation comes after decades when workers have generally been on the back foot, when unionisation has declined or stagnated, and when strikes have been rare. Years of accumulated grievances provide combustible material which is fuelling action over any issue.
However, the Transport Strikes Bill is not a reaction to this. The Tories hoped that the anti-democratic ballot turnout thresholds in the 2016 Act would prevent most strikes and they were infuriated that the RMT in particular has comfortably sailed over the thresholds again and again. So the 2019 Tory manifesto included the pledge: ‘We will require that a minimum service operates during transport strikes. Rail workers deserve a fair deal, but it is not fair to let the trade unions undermine the livelihoods of others.’
Liz Truss wanted to go much further with a wide variety of anti-strike measures. In her brief and disastrous tenure in Downing Street she repealed the ban on employment agencies providing extra workers to help break strikes. During the leadership contest Sunak went beyond the manifesto too, saying that as Prime Minister he would ‘stop unions holding working people to ransom’ and do ‘whatever it takes to make sure that unions cannot dictate how the British people go about their daily life’. He even said he would ‘ban strikes in essential public services like the railways’.
Time will tell whether Sunak will keep the pledges he made to a rabid Tory membership. So far, the signs are of a weak government desperate for a period of calm and prepared to drop measures which threaten stability. There is no doubt that anti-union measures are popular with Tory supporters, even if not with the wider public. This is the context in which his government has published the Bill.
The Tories are gambling
The Bill proposes to give government ministers powers to define transport services and minimum levels of service they must operate during industrial action. Unions would then be required to try to negotiate with employers to try to agree how to deliver that service, and if agreement wasn’t reached an outcome would be imposed by the Central Arbitration Committee (CAC). As David Renton explains, the CAC would be required to take into account a list of factors which
are, in effect, arguments for insisting that highest possible minimum service levels must continue during a strike. The CAC is not permitted to consider public support for the strike, even if that is overwhelming. Nor would the CAC be allowed to consider the right to strike, or the right to join a union.
The employers would then notify the union who they require to work to provide the minimum service and what work they are required to do. Any worker on the list who refused to work would be treated as taking unlawful industrial action, removing any legal remedy for dismissal. And if the union didn’t do enough to pressure them into scabbing on their own strike, the whole strike would become unlawful, exposing the union to injunctions. Breaking an injunction is contempt of court and can lead to unlimited fines and the sequestration (seizing) of union assets.
This Bill is a continuation of the dual strategy the Tories have pursued since 1979 – restricting the definition of lawful industrial action and using threats to union funds to pressure unions’ paid officers to police their own members. Instead of banning strikes outright, or targeting strikers with prison sentences (as with the 1971 Industrial Relations Act), this approach tries to make strikes lawful only if they avoid the most effective tactics. Solidarity action was an early casualty of anti-union legislation. Gone are the days when engineering workers could lawfully strike in support of nurses’ pay claims, or refuse to repair jet engines belonging to the Pinochet dictatorship.
Lawful industrial action is already unavailable to some workers. How can construction workers navigate a bureaucratic ballot process that usually takes a couple of months when the workforce on sites often changes continually? When many workers are ‘self-employed’ or employed through multiple subcontractors or umbrella companies there is rarely a single employer to have a lawful trade dispute with. The result is that nearly all industrial action in construction is unlawful. Workers simply have a meeting and walk off the job. They rely on sticking together rather than the law to defend themselves against victimisations. Despite facing vicious employers with a history of blacklisting, such action is often successful and the law is rarely used.
The new legislation is a gamble by the Tories. More workers will be faced with the choice of taking lawful but ineffective action or unlawful action which is effective. And once workers are defying the anti-union laws, the doors are opened to much more militant and powerful action, including the return of solidarity strikes.
Why we need to resist
Nobody should be under any illusions that the current attack on rail workers will be the end of the process of increasing repression, if it succeeds. If Unite’s Sharon Graham manages to build bus workers’ combines capable of coordinating their action you can bet the Tories will set minimum standards there too. And if this approach works in transport, why not elsewhere? The RMT is in the front line against attacks that will continue against us all – until we stop them.
In this context, the response from unions has been subdued, to put it mildly. There were a few defiant press releases, such as the RMT one that said
RMT and the entire trade union movement will not accept unjust anti union laws and I call upon all workers in Britain to mount the fiercest civil resistance possible, in the proud traditions of the chartists and suffragettes.
So far, there are few signs of actually organising that civil resistance. The opportunities are there. It’s not just that there have been real-life examples of the injustice of the current anti-union laws, such as the threat of an injunction which led to the CWU suspending some of its planned action at Royal Mail. There is also the context of increasing repression against other forms of resistance. When the 2016 Act was going through parliament I wrote an article about the growth of surveillance and the repressive and often racist measures introduced in recent years, along with attacks on access to the limited ‘justice’ available from the legal system.
Since then we’ve had the Police, Crime, Sentencing and Courts Act 2022 and the Nationality and Borders Act 2022. The Public Order Bill and National Security Bill are going through parliament and anti-migrant repression is escalating.
The best way to defeat repression is mass defiance, as in our past. Much of the legislation is vague and unclear. If we act in line with the nastiest interpretation of it, that will become reality. Defiance leads to better case law because it shifts judges’ perceptions of what is reasonable, and if it is widespread enough, it makes bad laws unenforceable. If union leaders are serious about opposing further restrictions on the right to strike, they could make a powerful coalition with environmentalists, anti-racists etc. We could pledge mutual support for anyone defying repressive legislation and coordinate action for maximum impact.
The cost of living crisis and rise in strikes is already giving rise to people talking about the possibility of a general strike. In a general strike, unions call on workers to strike irrespective of their employer. This would not meet the criteria for lawful industrial action. The pressures on those at the top of unions to comply with the law are huge. They don’t want to risk their whole union unless they have no other options. Most took the lesson from the 1980s that defiance of the law leads to defeat, rather than seeing the problem as the failure to deliver effective solidarity. The pressure on those at the top of unions is why a rank and file strategy is needed, where we work with the paid union officers as much as we can, but build up workers’ capacity to act independently whenever necessary.
The Trades Union Congress (TUC) has called for ‘days of action’ in the past – from over the banning of unions at the GCHQ Cheltenham spy centre in the 1980s, to support for striking ambulance workers in 1990, or for the climate strike in 2019. They didn’t call on workers to strike, but the days of action created possibilities for workers to go beyond what had been officially called. This year’s TUC Congress agreed to facilitate more coordinated action, and this is likely – across industries and unions. We should push for more of that – when we take action together we are more than the sum of our parts.
Building solidarity with the strikes now, through small actions like visiting pickets, raising money, or taking delegations of strikers round workplaces to raise support, helps strikes win, but it also builds up the networks of rank and file workers who want to fight. Such networks are going to be essential if we are to go beyond the fiery words of union general secretaries and successfully defy the increasingly repressive legislation.
Chapter 9 of Workers Can Win! A Guide to Organising At Work covers industrial and direct action.