When the Conservative Government is at a loss for legislative action it turns to its traditional pastime of anti-union laws. The Green Paper (the earliest stage of consultation) on Industrial Action and Trade Unions calls for responses by 28 February 1997. This date reveals the true motive. No legislation is intended in this Parliament. The intention is to raise trade unions and industrial action as an election issue.
This does not mean that the Green Paper should be ignored. Labour will come under pressure on these issues during the election campaign. It could also be an issue for a Labour Government - particularly if industrial disputes follow soon after its election. If the Conservatives were to be elected, some or all of the proposals may find their way onto the statute book.
The Green Paper shows the Conservatives have lost none of their determination to apply new constraints to unions. And it is despite the assertion from the President of the Board of Trade, Ian Lang, that the number of days lost through strikes has been cut by 94% since the 1970s. We are told that problems remain, specifically a lack of regulation of strikes in essential services and the need to take account of the broader interests of the community.
The Government says the perceived upturn in strikes results from 'economic growth and the continuing fall in unemployment'. It has attacked recent strikes affecting fire services, public transport and the postal service. So what is the government proposing?Disproportionate or excessive effects
The Government returns to its theme of restricting strikes in essential services or 'near monopoly' services. The Green Paper rules out a ban on those strikes, but instead proposes to remove legal protection from industrial action which has 'disproportionate or excessive effects'. This would mean that even where a ballot had been held, and all the other current legal requirements had been followed, the union could still face an injunction or a claim for damages.
It would be left to the judges to decide whether the action caused or 'was likely to cause' disproportionate or excessive effects. This is designed to tempt employers, or members of the public, to take action against unions. They would hope that a judge would be persuaded that the strike had disproportionate effects and therefore an injunction should be granted because the inconvenience to the employer, or the public, outweighed the interests of the employees.
The Government suggests that the court would take into account risks to life, health or safety; threats to national security; serious damage to property or to the economy; or significant disruption to everyday life or activities of a region. We are told that the courts should take account of the intensity, frequency and duration of the industrial action and whether it would have been practicable to take action which caused less disruption. In crude terms, the more effective the action, the more likely it would be held to be unlawful.
We are told that this would not involve the courts in assessing the merits of an industrial dispute. This is disingenuous. 'Disproportionate' and 'excessive' are relative concepts: they must be assessed by reference to some factor and the grounds of the dispute will inevitably become relevant.
Contrary to the Government's assertions, this proposal is more punitive than legislation in other countries, where restrictions focus on ensuring emergency cover is provided, not outlawing the strike altogether. In other countries where there is a restriction on the right to strike it is usually accompanied by a disputes resolution procedure such as arbitration. The Government expressly rules out compulsory arbitration, presumably because the outcome would be binding on recalcitrant employers, nor will it impose a requirement on employers to seek conciliation through ACAS.
More balloting restrictions...
Any doubt that the real motive is to place further obstacles in the way of lawful action is quickly dispelled by the next proposals. Unions would have to give 14 days notice after the ballot result before taking industrial action. Bearing in mind that action must commence within 28 days this gives virtually no room for manoeuvre. It is completely unjustified when the employer has already had considerable notice of the ballot and can no doubt anticipate the outcome.
Obviously, too many ballots have been successful as the Government proposes to require a majority of those entitled to vote, not merely those voting. The irony that the Tories have been in power since 1979 without a majority of the popular vote appears to be lost.
...and more ballots
There is also a proposal that unions must re-ballot two or three months after continuous action begins, or after a specified number of instances of discontinuous action, and again at regular intervals. The idea is to maximise the opportunity for employer propaganda or members voting to return because of financial hardship, or threat of sanctions, and to use up union funds on repeated postal ballots.
Removing rights to information and time off
The Government proposes to remove statutory rights to disclosure of information and time off for union duties or activities. This means that even where a union is recognised, there would be no legal redress if an employer withheld bargaining information, refused reasonable time off or withheld pay for time off. Graciously, the Government does not propose to remove rights in relation to health and safety, redundancies and transfer of undertakings consultation. They have no choice: any reduction in rights would be prohibited by European law.
A last throw?
Trade unions have been subjected to a procession of punitive Acts of Parliament since 1979. The Government still has the gall to say that these proposals are necessary to achieve a 'balance'. The Industrial Relations Branch of the Department of Trade and Industry is calling for responses by 28 February 1997. Let us hope that this morally bankrupt administration never has the opportunity to pass these crass proposals.