With the public sector one day strike last Thursday and David Cameron announcing in the same week that he intends to make union reform an election manifesto, the partner head 2 head this week debates strike ballot reform. In order to express your sympathy with the Government's position, or with Vince Cable's view of the proposals (an 'utter nonsense'), please do vote where indicated. On last week's vote about obesity a truly garganutan 98% of you thought that obesity should not be protected by disability law. It appears that the European Court of Justice's Advocate General is in the other 2%. He has ruled today that 'severe' obesity may fall under the Equality Act as a disability. To see the full results of the survey, click here.
Tim Tyndall Partner Employment Cambridge
NO TO STRIKE BALLOT REFORM BECAUSE...
In these days of sound bite politics and vote grabbing cabinet reshuffles (anyone for a debate on quotas in party politics?) it is hardly surprising that the PM was keen to publicise plans for a strike ballot threshold in his party's next manifesto during last week's public sector strikes.
But is there any change necessary or indeed workable? I say no. Perhaps it is because I can just about remember pictures of car workers voting for strike action on a show of hands in some West Midlands factory car park but the current regime for protection against unlawful strike action seems fit for purpose and discourages unlawful strike action.
Moreover, neither the current legislation nor any planned threshold increase would prevent the sort of wildcat actions we saw a couple of years ago which were so disruptive. I have a hunch that a tightening up of thresholds would simply act as a catalyst to such disruptive action. We should ask how many workers were out on strike last week (not many according to the Government's own publicity machine) before knee jerk reactions and look at the actual impact of the strikes compared with those taking place in previous industrial relations eras.
The legislation is complicated and the risk of non- compliance too serious for any properly advised union
to ignore. strike ballots and their legitimacy can be challenged by employers through the complicated process of notice, checking off and scrutiny and that's after the long drawn out process of establishing recognition for collective bargaining purposes.
There are more significant problems, firstly because the UK courts have held that it is wrong to make a presumption that the interests of employers should hold sway. In particular the right to strike is seen as part of the right to freedom of association under article 11 of the European Convention of Human Rights. secondly, the UK's membership of the ILO (International Labour Organisation) means that it has ratified the ILO's fundamental Convention 87 which concerns freedom of association and the right to organise. Accordingly the UK is legally obliged to ensure that its national freedom of association laws and practices are aligned with Convention requirements. (I have this on no lesser an authority than our partner Chris syder who is the ILO's governing body representative for UK employers).
The committee of experts of the ILO consider that requiring a decision by over half of workers involved in order to declare a strike is excessive and could unduly hinder the possibility of calling a strike particularly in large enterprises. Needless to say there would be something of a standoff over interpretation which ultimately would have to be resolved either by an ILO tribunal or by reference to the International Court of Justice.
My view is that it is better to stick to the relatively strike free environment created by the current rules and rather concentrate on ensuring some form of minimum service guarantee in public services (along the lines adopted in France) aimed at ensuring that a basic level of services is maintained for the public. After all, most employers are not worried about another business's industrial relations unless it disrupts their supplies or the ability of their employees to get to work. That said, (and over to you Andrew) I also have recollections of holidays in France being disrupted by public service strikes so we would have to ensure that minimum service guarantees in this jurisdiction had some bite.
YES TO STRIKE BALLOT REFORM BECAUSE...
Following David Cameron's recent commitment to the introduction of a policy for a turnout threshold for strike action in the next Conservative manifesto, there has been, as one would expect, a flood of objection. However, before I launch into a staunch defence of this proposal, I think it is worth taking a step back and looking at what exactly the objective is behind this.
I, for one, am not directly impacted by the numerous tube strikes (to take one of the more contentious examples of industrial action) but I do have every sympathy for those who are subjected to the inevitable misery and inconvenience that is imposed upon them through industrial action. However, should we not be looking beyond our own self-interest here? It is, after all, a right enshrined in domestic legislation, a right to organise that has been freely and rightfully exercised by the union's members. Or has it? I suspect it is difficult for the majority of the public to empathise with the strikers' plight where such action does not, on the face of it, appear to reflect the majority view of the unions' members on whose behalf strike action is sought. After all, strike action is supposed to be a last resort and not a weapon in the armoury used for early retaliation by a union. One would have thought that if all means of negotiation had been thoroughly exhausted, then there would be no difficulty in obtaining a threshold even higher than the 50% proposed.
In my opinion, this is not about an attack on civil liberties and a march towards a totalitarian state or, for that matter, conservative dominance but rather its true objective is to focus the minds of the union's members and obtain a more accurate reflection of the majority opinion. Potentially, this could even help unions during subsequent negotiations and in gaining public support.
Now before my fellow comrade, sorry I mean colleague, accuses me of union bashing and being anti-democratic, I should point out here that I wholeheartedly support the principle of unions and believe there is a genuine need for a collective voice. Particularly for those workers who are most vulnerable. Indeed, in some situations it can even be beneficial to an employer where the union is sensible and pragmatic; think collective consultation or the obligation to inform and consult under TUPE. However, I can't help but feel that perhaps the concept of striking itself is outdated and there are more suitable alternatives for dealing with disputes such as arbitration. Of course, I fully appreciate that this type of forum could present problems in itself but whilst the right to strike played an important role in our history, working conditions and the rights of workers have since been significantly improved, protected and in some cases gold plated through domestic and European legislation. Therefore, I just question whether those same objectives for industrial action still exist.
In a world where information is so accessible and social media has become the norm, the days of factory board posters advocating strike action and union peer pressure - yes I am slightly being facetious - have gone. There are alternative technological methods that could be adapted into the balloting process that would assist unions and enable all members eligible to vote to do so without inconvenience to their daily routine. This would then portray a clearer and fairer representation of all the members. After all, if the union's role is truly to represent its members then surely it would want to represent the majority view. If it believes that it already does - and I am, of course, not suggesting here that there may occasionally be ulterior motives for strike action - then why would it object to anything less than 50% of the turnout threshold for strike action? surely only then is it truly democratic.