‘Now is the winter of our discontent’. In 1978-79, the opening line of Shakespeare’s Richard III was bandied about by the editor of the Sun, Larry Lamb, as unions led widespread strikes to demand pay rises for their members. Nearly 30 years on, newspapers have started to milk the phrase once more, as public service staff grow increasingly hostile towards the government.
Last month saw 20,000 prison officers in England and Wales walk out over pay. The national stoppage – the first in the Prison Officers Association’s (POA) 68-year history – took ministers by surprise, not least because it illegally broke a no-strike agreement.
But it is far from the only strike threat from ‘essential workers’ that prime minister Gordon Brown’s new government faces.
The Police Federation, which represents rank and file police officers, has opened up the debate over whether police should have the right to strike if the government does not negotiate a fair pay deal for its members. And Unison (which represents NHS workers), the National Union of Teachers, and the Public and Commercial Services Union (PCS) has also entered into talks about joint strikes over pay and job cuts – although nurses and teachers are allowed to strike.
With Brown refusing to back down on below-inflation – and often staged – pay awards, unions are failing to see what, other than strike, they can do to be heard.
But what rights do front-line employees in essential roles such as policing have to go on strike?
A no-strike agreement – part of a collective agreement between a trade union and an employer – is a voluntary, private contract, which agrees ‘in principle’ that unions will not stage industrial action, according to law firm Hammonds.
The Labour government brought this agreement into play after scrapping the Conservative Party’s Criminal Justice and Public Order Act 1994, which made it unlawful for essential workers to withdraw their services.
The agreement is not legally binding unless the employer writes a clause into the document to make it so, according to Simon Ost, a human capital partner at Hammonds. “In the case of the prison officers, the government and the POA had made the document legally binding. This meant the POA had the right to opt out of the agreement, but should have given 12 months’ notice before striking – which it did not,” he said.
The Ministry of Justice obtained an injunction against the walkout, and the officers were forced to return. If they had not, they could have been arrested and faced imprisonment. But the POA felt justified, as it believed the government – which took the 2.5% pay offer reached through arbitration and decided to spread it over two years – had not kept its side of the bargain.
“Generally, unions are loath to legally prevent themselves from using their primary weapon: to strike,” said Ost. “We saw the POA opt out of its no-strike agreement in June, and in many ways that was a stepping stone. [Within nine months] prison officers will no longer be bound by that contract.”
However, the rules for police strike action are quite different. Since 1919, the police have been forbidden from striking by law, the most recent being the Police Act 1964.
The outright ban by parliament was in response to strikes after the First World War over police pay and conditions.
Alan Gordon, vice-chairman of the Police Federation, told Personnel Today: “If we wanted to be able to take any form of industrial action, there would need to be a change in primary legislation to facilitate that.”
Earlier this year, the federation, representing more than 140,000 officers, voted overwhelmingly to explore the option of campaigning for full industrial rights if its claims were not met.
Currently, the police have been offered a pay deal of just 2.3%, with the “inference of staging it”, equating to a real-term value of less than 2%, according to Gordon. But he also explained that the chances of officers walking out were very slim.
“Police officers would not want to take any strike action – they certainly wouldn’t want to do anything that would jeopardise the safety of the public. Striking is an absolute last resort,” he said.
However, he admitted police officers were becoming increasingly frustrated that the government did not seem to recognise their unique status – that their conditions of service demand restrictions on their private life, and that they are accountable for their actions 24/7. He urged the government to reinstate a “proper pay system that won’t be interfered with”.
He said: “If you’d asked me ‘should police be allowed to strike?’ five years ago, I would have said no. But I would now say that if you are being bullied by the government, you need to have the ability to fight back.” But he said it was the government’s attitude to pay that needed to change, not the law on strikes.
As the momentum builds for Brown to call an early general election, Ost believes now is the time for unions to exert their pressure.
“While there is a certain amount of propaganda in the phrase ‘winter of discontent’, this is the time to exert trade union pressure, as political pressure mounts,” he said.
Brown will have to face that pressure at this week’s TUC Congress, especially as the PCS has tabled a motion for action against freezes in public sector pay.
Mark Serwotka, PCS general secretary, said: “The government needs to recognise that it cannot continue to use civil and public servants as an anti-inflationary tool, by beginning to value them with fair pay.”
PRIVATE SECTOR STRIKE BOUNDARIES
- There is nothing to stop the private sector entering into a no-strike agreement with unions: the hard part is convincing unions to give up their primary weapon of striking.
- Employers should ensure the no-strike agreement is made legally binding – a clause to that effect needs to be inserted into the document – otherwise unions can opt out without notice.
- Employers should only make the no-strike agreement legally binding, not the entire collective agreement they hold with the unions. Otherwise, unions could get injunctions against employers.