Len McCluskey was right to ask whether unions can continue to stick to draconian new rules

‘Why is the strike, or, better perhaps, the potentiality of a strike, that is, of an event which of necessity entails a waste of resources, and damage to the economy, nevertheless by general consent an indispensable element of a democratic society?’

This question, raised in 1972 by the pioneering labour law academics Otto Kahn-Freund and Bob Hepple, should have been at the forefront of business secretary Sajid Javid’s mind when he made it a priority (in only his first day in the job) to deliver the Tory manifesto promise of “protecting the public from disruptive industrial action”.

However, it is unlikely Javid indulged in such intellectual enquiries when, in his own words, he considers it ‘fair, proportionate and sensible’ to make it more difficult for workers to go on strike.

Chief among the Conservatives’ proposed amendments is the introduction of a 40 per cent ballot threshold for strikes in essential public services. This measure, intended to tackle what the Tories believe is the ‘disproportionate impact of strikes in essential services’, specifically targets the health, education, fire, and transportation sectors.

There will also need to be a minimum 50 per cent turnout in strike ballots.

Finally, they plan to repeal the ‘nonsensical’ restrictions banning employers from hiring agency strike breakers.

As I have written in these pages previously, these proposals will undoubtedly violate the UK’s international law obligations. While the introduction of a quorum will not in itself breach international law, the cumulative effect of the UK’s restrictive labour laws certainly will.

The International Labour Organisation has already berated the UK on its balloting requirements for, among other things, having ‘laws on industrial action ballots and notices which are too complicated and rigid’. On restricting the right to strike in essential services, the ILO’s Committee on Freedom of Association has repeatedly stated that such action can only be permissible where the interruption of those services would endanger the life, personal safety or health of the population.

To that effect, the Committee has explicitly held that transport and education do not constitute essential services for the purposes of industrial action. Furthermore, the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term has been regarded by the Committee as a serious violation of freedom of association.

Interestingly, the government’s plan to scrap the Human Rights Act, which incorporates the European Convention on Human Rights into domestic law, is also relevant in this discussion. Following a 2008 decision, the European Court of Human Rights held, among other things, that deference should be given to the above-cited ILO jurisprudence and other international legal instruments when determining the rights covered in Article 11 (Freedom of Association) of the Convention.

With the new British Bill of Rights set to ‘break the formal link between British Courts and the European Court of Human Rights’, it is likely that individuals wanting to bring cases under the ECHR will have to go all the way to Strasbourg to do so. Even though the European Court of Human Rights recently sided with the government on a specific strike restriction, the denial of access to Convention rights locally is simply a further denial of justice.

Len McCluskey was right to ask whether unions can continue to make the commitment to stick, under any and all circumstances, within the law as it stands.

Trade union membership stood at 13 million in 1979, the year Margaret Thatcher started gradually introducing a string of anti-union laws. Today, there are roughly 6.5 million workers who are trade union members.

It is obvious that the restrictive strike laws played a part in this dramatic decline. If the Tories continue to have their way, what will union membership figures look like in 20 years?

There can only be one answer to McCluskey’s question.

Ruwan Subasinghe is a legal advisor for the International Transport Workers’ Federation (ITF). Follow him on Twitter

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