The Trade Union Act 2016 comes into effect for all industrial disputes where the ballot is to commence after 1st March 2017. Due to a well coordinated campaign by trade unions and the Labour Party, much of it lobbying behind the scenes, many of the more draconian aspects that had originally been proposed by the Conservative Government in the original bill had been dropped prior to Royal Assent, however there are still significant changes that will be challenging for unions.

While it may be counter-productive to pick over the entrails, much of the motivation for the Act’s changes to the law relating to industrial disputes possibly relates to a few instances of action by some public sector trade unions, and also due to the use of imaginative alternatives to traditional industrial action by GMB and Unite. The government therefore made the unwise decision to enact broad legal changes to cover all industrial disputes where their specific objectives could have been better achieved by a more proportionate response, or indeed by stepping back from government involvement in industrial disputes altogether.

It is clear that the drafts of the legislation were informed by people who have no understanding of industrial relations. There was no problem that needed solving. In particular, the level of strikes is very low by historical standards, and picket line violence is a thing of the past.

With regard to so-called ‘leverage’ campaigns, the government had commissioned a report by Bruce Carr QC in 2014, which looked at allegedly ‘extreme’ forms of industrial action, inspired by somewhat hysterical reaction to Unite’s campaign at INEOS. For example, at Prime Minister’s Question in November 2013, there was a following exchange:

Steve Baker : Hard-working businessmen facing tough decisions, decent trade unionists and newspapers including the Daily Mirror will have been appalled by the so-called leverage tactics of Unite in the Grangemouth dispute. Will my right hon. Friend take steps to ensure that families, children and homes are protected from a minority of militants? “The Prime Minister: My hon. Friend makes an important point. This sort of industrial intimidation is completely unacceptable. We have seen “Wanted” posters put through children’s letterboxes, we have seen families intimidated and we have seen people’s neighbours being told that they are evil. What has happened is shocking. It is also shocking that the Labour party is refusing to hold a review and to stand up to Len McCluskey. At this late stage, it should do so.

‘Leverage’ tactics have been effectively employed by both GMB and Unite for a number of years. The practice is actually very fairly described by the Chartered Institute of Personnel and Development:

… seeking to reinforce or strengthen a trade union’s position in relation to one or more employers by involving third parties. Leverage tactics can be seen as modern industrial action, including the use of social media, targeted e-mails to senior executives, and focusing on supply chains to bring an organisation to account through corporate social responsibility “soft laws”. In general, this can be seen as legitimate trade union activity designed to ensure an organisation is held to account and reflecting a democratic right to protest within the law. Used properly, this can offer a useful check and balance for organisations. In its most basic form, leverage might be seen as simply communication – for example, using the media to make a case. […] The leverage this affords to trade unions to influence employers’ behaviour is exercised by building on the risks to employers’ “brand” or reputation of any perceived misbehaviour. The adoption by Unite of a declared “leverage” strategy may also reflect an acceptance that employees are increasingly reluctant to sacrifice pay through strikes or other traditional forms of industrial action. Leverage can be seen as an alternative method of putting pressure on an employer to concede trade union demands.

It is precisely because such tactics are effective, such as humorously dressing up as a crocodile and protesting outside the workplaces of those personnel managers who participated in the unlawful practice of blacklisting, that trade unions do them.

In any event the Carr report made no recommendations relating to such use of publicity stunts and social media campaigns, and it is impossible to see how constraints on such activity could be consistent with the rights to organize and democratically protest in a liberal democracy. The original drafts of the Trade Union Bill proposed restrictions to such practices, but these were withdrawn.

However, the point made by CIDP about using leverage as a substitute to traditional industrial action does draw attention to a potential pitfall. The purpose of trade unionism is to improve the bargaining position of workers. The formal contractual basis of an employment contract assumes that the employer and employee stand as equals on the legal stage, but the real social relation is that when dealing with an individual employee the employer holds the power. Even at the level of legal rights, the political and economic weight of employers ensures that the courts are more likely to favour the bosses than the workers.

Workers redress that imbalance though combination, and the source of durable collective strength relies upon financially sustainable organisation. Therefore leverage campaigns used to strengthen collective bargaining in conjunction with effective density of membership are a powerful weapon. But leverage campaigns cannot become a substitute for the hard work of building collective capacity, the unglamorous graft of recruiting members, bringing forward shop stewards, educating and informing the membership, and encouraging participatory lay democracy.

This is why it is necessary for trade unionists to take very seriously the challenges of the Trade Union Act, but if we take a level headed view, we can see that by adapting our practices there are no insurmountable obstacles.

The Prussian General, Von Clauswitz, famously observed that war is diplomacy by other means. In his era in Europe this was true, once the competing principalities and Kingdoms had failed to reach diplomatic agreement over a dispute, then war would be engaged in to test the relative bargaining strengths of the competing parties prior to diplomatic negotiations recommencing. Similarly, industrial action is not an end in itself, it is just one stage in the never ending process of industrial relations.

The purpose of industrial action is to cause the employer to reconsider their negotiating stance. The unregulated era of mass carpark meetings and workers taking strike action following a show of hands will never return, but every change in the law and regulations of industrial action gives trade unions opportunites, as well as restrictions. The late Bob Crow was adept at using announcements of RMT strike ballots to put political pressure on the bosses of the London Underground. The balloting requirements prior to industrial action have become a weapon in the hands of trade unions where the process of building for action is itself used to pressurize the employer.

One significant change in the new law is that ballot papers will now require a summary of the types of action, and the timetable when they will be acted upon. It will be unlawful to take action not listed on the ballot paper, but the dictates of good industrial relations must, for example, allow trade unions to respond to concessions and approaches from the employer to take less action than was on the ballot. In certain circumstances listing an extensive programme of action on the ballot may be used to demonstrate union strength to the employer right at the outset.

The effective life of industrial action ballots will also be time limited to 6 months (or 9 months with the agreement of the employer). It is not unusual in certain industrial disputes for the resolve of the workforce to stiffen once action has been engaged, the time limits may therefore change the tempo of industrial campaigns such that unions reballot to demonstrate strength of feeling to an employer during the course of a dispute. In any event, notwithstanding the inspirational historic examples such as the 1984 miners strike, the momentum of any industrial campaign that has lasted more than 6 months may be flagging, and such a campaign may profit from regroupment and reappraisal by the union, this is unlikely to damage many disputes.

The new legal thresholds for ballots require at least 50% of those entitled to vote returning a ballot, and a simple majority of those voting. For those engaged in important public services, there is an additional threshold that 40% of those entitled to vote must be in favour. These are certainly demanding targets.

Certainly many trade unions have their own rule book or policy requirements for a ballot threshold, but on principle this should be a question for the unions themselves, not for legal interference.

Where there is industrial action in individual workplaces, where there are shop stewards, and an engagement between the members and the union, then good turnouts over clearly defined issues are achievable. It is more difficult to achieve good turn outs in national disputes in the public sector, where there may be uneven density, and no union activists in some workplaces. But, if we are absolutely honest, in some instances in recent years, trade unions have engaged in national strike action with such low participation levels that it has been more of a demonstration of weakness than of strength to the employer.

The new balloting requirements will force a reappraisal, whether we want to or not. It may not be possible to conduct national public sector campaigns on the same basis anymore. But that does not mean that they cannot be conducted. While the decisions need to be made through each union, via their own democratic processes, and following their own appraisal of their strengths, there are still opportunites. For example, unions could vote for a financial levy by all members affected by a particular industrial issue, and then only selectively ballot for actual industrial action a few strategic workforces who have the capacity to deliver, and the industrial leverage to hit the employer.

Elsewhere, the new requirements for picketing will be unlikely to have much impact. While there are grounds for concern at the possible change regarding the use of agency workers, it should be borne in mind that the regulations currently outlawing the uses of agency staff are already breached on occasion, and the regulatory authorities take no action. It is correct to oppose any change of the law, but if it happens, then let us deal with that then. Agencies who provide strike breaking labour may find themselves the focus of the sort of leverage campaigns that would induce them to reconsider.

Whatever the legal frameworks, trade unions will adapt and evolve our tactics and continue to prosecute the best interests of our members. Employers who treat their workers with respect and dignity, and who pay a fair wage will have nothing to fear. For those employers who abuse, exploit and disrespect working people, then they can be assured that the changes in the law will provide them no protection.