In 1906, the Trade Disputes Act created for the first time protection for trade unions promoting industrial action to further the interests of their members in a trade dispute.
It is ironic that, 100 years later, the legal restrictions on trade unions’ freedom in this area are not only some of the most severe in the West – but significantly greater than those Parliament imposed a century ago.
Last April, the TUC General Council published proposals for a Trade Union Freedom Bill.
Nationwide consultation
Meetings to discuss the Bill are being held around the country and aim to provide information as well as drum up support.
The Bill does not propose a radical return to what the right wing press has always characterised as the ‘bad old days’ of unruly trade unions. The proposed ‘freedoms’ are more akin to relaxations of the restrictions that currently apply.
In particular it does not propose that unions should have power to call for industrial action without the support of a democratic ballot. Such a ballot – a proper mandate from the workers concerned – will remain a necessary pre-requisite for trade unions that wish to call for industrial action.
Law to be simplified
However, the Bill does suggest that the minefield of legal requirements ought to be simplified.
The oft-cited fear of ‘flying pickets’ is not justified by the Bill’s proposals.
It modestly suggests that in limited circumstances a set of employees might take lawful industrial action to support another set of employees taking lawful industrial action.
There are other, minor, relaxations proposed by the promoters of the Trade Union Freedom Bill. They do not amount to a ‘strikers’ charter’ – they will not make UK law more (or even as) union-friendly than is seen elsewhere in the EU.
They will not, in fact, return us to 1906, in that the law will remain more restrictive than it was then.
International standards
If the UK implements the Bill in its entirety, it will almost certainly still remain in breach of the standards set by the International Labour Organisation – all standards to which the UK has subscribed.
But the changes set out in the Bill will reduce, not increase, litigation in relation to industrial action.
So will the proposed changes make it easier for trade unions to organise strikes or any other industrial action?
Naturally they will – the Bill is about freedoms, after all. But if the clock has been turning backwards for 100 years, it won’t hurt to turn it forward a year or two.
What the Trade Union Freedom Bill will change
Improved protection for those participating in lawful industrial action – workers will be prevented from being subject to any detriment because they take industrial action.
Agency workers – the Bill will place a duty on an employer not to use agency workers to replace striking workers. They will also be required to notify agencies used on a regular basis whenever industrial action is taking place or is planned.
Injunctions – there are circumstances in which an employer may seek an injunction to stop industrial action if there is a “serious issue to be tried”. The Bill introduces a stricter standard, where employers will only be granted an injunction where they can demonstrate that they are more likely than the union to succeed in the main action.
Amending the definition of trade dispute – industrial action is only lawful if it is in pursuit of a “trade dispute”. This is narrowly defined and has created challenges where a union tries to respond to new types of problems.
Reducing bureaucracy – lawful industrial action must be supported by a majority of members of the union who may be affected by the dispute, voting in a secret ballot. The rules on balloting are lengthy, complex and impose significant administrative burdens on the unions.
By Paul Scholey, head of employment rights team, Morrish & Co
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