Tuesday, May 18, 2010

A right to strike in the UK - Yeh right Updated

It seems that the blog below now needs an update. The Court of Appeal (2-1) has overturned the injunction. The aptly named Lord Judge made the point that "Legal processes do not constitute mediation. On the contrary they often serve to inflame rather than mollify the feelings of those involved." The decision means that the law is not a total ass in this case - I haven't read the full case yet but reports suggest a crucial failure by the union was not to report that 11 ballot papers were spoilt!

It appears that the British courts have in effect come to the conclusion that strikes should not be permitted, a conclusion that will surprise no-one familiar with the history of the role of the common law in industrial relations. In the the period from 1870-1906, and again in the 1960s, these courts invented a whole range of economic torts with the clear objective of ensuring that even the mildest form of industrial action was unlawful. It was only with Parliament's intervention through the Trade Disputes Act 1906 that strikes became lawful - an Act which it was claimed to place unions above the law. In fact the argument was that we, the judges have decided unions should be powerless and how dare the elected representatives of Britain interfere with our decisions.

The most recent technique for neutering unions is to use the complex and largely unworkable ballot requirements of the UK legislation (a legacy of New Labour) as the basis for an injunction prohibiting a strike. No matter that the ballot was absolutely clear in its results, and that the alleged deficiency could have made no conceivable difference to the result, an interim injunction will be issued to prohibit the action. The issue of two injunctions in recent months to prevent British Airways staff striking clearly illustrates that the substance of the result is irrelevant. In the first case a very small group on former employees were balloted due to totally understandable problems in maintaining accurate membership lists - a number that would not have had the slightest influence on the result. The latest injunction is even more mind-bogglingly fatuous - the results were not reported to members in sufficient detail. The interim injunction procedure promotes such results - an employer merely has to show that they have an arguable case and that the "balance of convenience" favours the injunction. And if anyone knows of a case where the balance of convenience has not favoured preventing a strike let me know. Of course if the union's legal position is later (a few years down the track) shown to be correct the strike can go ahead. It is not only BA workers (whose vote of over 80% support was negated) who have been affected. The same tactic was recently deployed against rail workers.

The effect of these decisions is that the British judiciary has (again) effectively outlawed the right to strike .

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