When it comes to anti-trade union legislation, the 2016 trade union act gets far too much attention. It was built on a solid foundation erected between 1980 and 1992. The following is a summary of the most damaging aspects of each piece of anti-union legislation. A comprehensive summary of each act can be found here.
Employment Act 1980:
- Removed immunity for secondary action unless it was explicitly designed to put direct pressure on the employer by interfering with their business with their suppliers or customers. This was later extended in the 1982 Employment Act as immunity only applied to disputes between ‘workers and their employer’. An example of when this might have been helpful is the P&O ferry dispute, as members of other unions could have expressed practical solidarity by striking at ports where P&O operated.
- Repealed the provisions of the Employment Protection Act 1975. This meant that it became harder for independent trade unions to secure recognition for the purposes of collective bargaining. A replacement framework was not introduced until the 1999 Employment Relations Act this replacement was more bureaucratic and favoured unions less. In 1975 the responsibility of resolving a recognition dispute was given to ACAS and the section of the act governing this section was only 2,197 words long, leaving a lot unspecified and reflecting the fluid nature of industrial relations at the time. In 1999 the body responsible for resolving recognition disputes was the Central Arbitration Committee and the process for doing so was aggressively codified and bureaucratic, resulting in the relevant section of the act being 7,545 words long.
1982 Employment Act:
- Prohibited union labour only and union recognition clauses in commercial contracts. This opened the door to union workers being undercut by cheaper unorganised labour. These would have been useful for nearly all commercial projects that have used non-unionised labour.
- Outlawed political strikes.
Trade Union Act 1984:
- Mandated secret pre-strike ballots. To guarantee immunity from tort a trade union now had to have industrial action approved by a simple majority in a secret ballot. This made spontaneous walkouts virtually impossible and limited trade unions’ capacity at shop floor level. However, it is easy to overstate the achievements of walkouts.
Employment Act 1988:
- Removal of immunity from industrial action to enforce a closed shop and making dismissal for refusal to join a closed shop unfair in all circumstances. This was the first of two bills that essentially outlawed the closed shop, significantly damaging union membership and changing the relationship between organised labour and capital.
- Another smaller consequence was that it required the use of postal ballots for union executive elections and political fund ballots. The consequence of this has meant that turnout in trade union general secretary elections is below the ideal level.
Employment Act 1990:
- Made it unlawful to refuse a person employment either because they were or were not a member of a trade union. While this had the benefit of providing workers with protection from discrimination on account of being a trade union member, it also killed the pre-entry closed shop.
- Required trade unions to either engage with unofficial trade action by their stewards either by repudiating said action or putting it to a ballot while unofficial strikers no longer had the right to take their case to a tribunal. This further limited shop-floor spontaneity and reduced the speed at which trade unions could act. While some trade union officials may have welcomed the limiting of shop-stewards’ capability, they will not have welcomed the further inertia applied to the trade union movement.
Trade Union Reform and Employment Rights Act 1993:
- Of great significance was the Act’s declaration that all industrial action ballots should be fully postal, meaning that they could not be conducted at the workplace. This made it harder to encourage members to vote and democratically engage with their union and it would be interesting to see what the effects on turnout would be if this approach was taken for a general election.
2016 Trade Union Act:
- Raised the threshold for strike action to require a 50% turnout of all the relevant members of the union. The impacts of this are evident in the public sector, where at a time of high inflation, it is hard for large unions to guarantee the sufficient 50% turnout, as has been demonstrated by UNISON’s efforts in local government. This would perhaps be less of an obstacle if it was not combined with previous legislation mandating that ballots had to be conducted via post.
What is evident from the above is that the introduction of legislation to limit trade unions was fairly tame initially. The 1980 Act was very cautious, which is a testament to the contemporary trade unions, and a useful reminder that Thatcherism did not happen overnight. This anti-union legislation was not designed to neatly flow from one piece to another, instead the contents of each act was the most the given government felt that it could get away with at the time. With every act passed trade unions became weaker and anti-union governments and employers became stronger and the combined impact of this legislation is a testament to the state’s ability to change society if it can be controlled for long enough.
As a consequence of this changing scales, it is possible to roughly chart the progression of this legislation as follows:
It started by limiting trade unions’ (and workers’) power on the shop-floor, which it did in two simultaneous ways. The first was by containing industrial disputes by removing immunity for political strikes and outlawing secondary action. The second was limiting the strength of unions within a given shop, the most important aspects of which were hindering the capability to stage spontaneous industrial action and removing organised labour via breaking the closed shop (many of which were supported by employers and had opt-out clauses for objecting workers) and making it illegal to hire only union labour.
After this, legislation progressed to hinder and obstruct the administrative functions of trade unions. For instance, the 1993 Act essentially added more bureaucracy and oversight to trade union processes as trade union annual returns to the Certification Officer now had to contain details of the pay and benefits of union leaders and the act gave the Certification Officer new powers to examine unions’ accounting records. Trade unions have largely adapted to this additional layer of bureaucracy, and it has not been much of a hindrance.
Shop floor workers could be empowered by repealing the above legislation (the presence of which demonstrates their previous effectiveness), it is a necessity that they are, this would give them more freedom against capital and enable them to quickly react to adverse circumstances at work. This is true industrial democracy, and is a prerequisite to a vibrant trade union movement and human flourishing. In order to achieve this goal it is necessary to understand what currently prevents its realisation, and in this case it is legislation that has created a culture of shop-floor apathy as labour has been atomised and alienated.
Thus, it is vital to understand the nature of anti-union legislation and what specifically it precludes; if only to ensure that the right parts of it are repealed and future individual and collective rights for workers properly enshrined. Any future legislation designed to empower trade unions cannot just do so at an executive and administrative level (as Labour’s proposals from 2019 onwards currently do); it also has to empower workers on the shop-floor. Without this, trade unions rights will be only theoretical and not enforceable in the dynamic nature of industrial relations.