The UK Government has announced its first wave of minimum service legislation. This will mandate a minimum number of employees working during industrial action in rail, border force, and ambulance disputes and compels trade unions to enforce these levels or be liable to fines and legal action. In response, the Trades Union Congress has called a “Special Congress” on the 9th of December, to, as mandated by a motion at Congress in September, decide what a strategy of non-compliance with the new legislation will look like. The government’s hope is that this legislation will effectively render strikes ineffective and prevent unions from using collective action to improve the terms and conditions of workers’. Given the Special Congress has been called, they may be right.
Already, comparisons have been drawn with the British trade union movement’s period of resistance to the 1971 Industrial Relation Act. Then, the TUC enforced a strategy of non-compliance that included not registering onto the government’s new register of trade unions (COHSE was evicted from the TUC for not observing this boycott) and refusing to recognise the Heath government’s new Industrial Relations Court. However, this strategy had its limits.
For instance, with the events concerning the Pentonville Five, the TGWU initially refused to recognise the court, was fined, then issued with a bigger fine, and after that (and the possibility of sequestration) belatedly recognised the court and disavowed the industrial action of its dockers. Workers across multiple industries then took matters into their own hands and staged sympathy strikes and protests. The TUC called a one-day general strike, after they knew the dockers were going to be released, so the strike never took place. Despite this success, two years later the AUEW, after refusing to pay the damages of an employer (Con Mech) that it was in dispute with, still had to physically resist the sequestration of its assets and threatened a national walkout of all of its members in response. This resulted in another employer, not in dispute with AUEW at the time, paying the costs of the case anonymously before the 1971 Act was repealed by the newly elected minority Labour government.
The extent to which these examples are instructive for today is highly limited. There is not the shop stewards’ movement and culture that there was then, and trade union membership no longer covers over forty percent of the workforce. An event like Pentonville is unlikely. Moreover, unions exist in a more restrictive legislative environment than they did then. In the case of Pentonville, multiple workers could stage secondary action without having to give notice of a ballot. Equally, the AUEW’s national walkout would be impossible now, as for workers in different bargaining units it would again be classed as secondary action.
Any analysis of the trade union movement’s past must also take into account the failed period of resistance to anti-union legislation in the 1980s, when the threat of fines and sequestration was ultimately successful in deterring unions from the tactics deployed in the 1970s. The TUC press statement on the Special Congress noted that this is the first of its kind since 1982, when a similar Congress was called to fight the embryonic anti-union legislation of the first Thatcher government. Given that the trade union movement is still living under those laws, it seems unlikely that a trade union movement weaker than it was in 1982 will end up attempting a return to 1970s-style resistance.
It is less likely that a cliff edge will be reached with this strategy of non-compliance and the government knows it, hence its not so gentle reminder that fines for the largest unions can now be as high as £1,000,000 (previously they were £250,000, inflation really is an issue these days). However, this has not stopped Daniel Kebede, the new NEU general secretary, from claiming that should a teacher be sacked for non-compliance with a work-notice then the NEU would shut the school down, though it is not clear if current industrial action legislation would allow this.
The lack of a cliff-edge does not make non-compliance impossible, but it does make it less exciting. As frequently pointed out, it is not clear how minimum service levels will work in practice (what does forty percent of trains running actually look like, where are the trains, which lines will run etc.?).
It is the current uncertainty that has allowed the TUC to take a firm, albeit carefully worded, stance on the minimum service law. It is possible that the prospect of an incoming Labour government has made this stance easier to take. It may be that unions can stall with minor non-compliance – for instance, by strategic use of sickness absence – or longer periods of industrial action, until a Labour government repeals the legislation or maybe a victory in the courts allows it to be overturned.
However, as Mick Lynch, general secretary of the RMT, pointed out at multiple times at TUC Congress, repealing could still take a while due to the parliamentary timetable, though the bill made clear that the power to set minimum service levels lies with the relevant secretary of state, and the labour movement’s hope would be that a Labour minister would not utilise this power. Then again, even Nye Bevan encouraged the British Electricity Authority (chaired by former TUC general secretary Walter Citrine) to take civil action against striking workers in 1950, and wanted to place industrial action restraints on workers in the newly formed NHS. If minimum service levels prove a lever government likes to pull, it may prove more difficult to repeal than is currently assumed.
Ultimately non-compliance has a shelf-life and there was a tacit acceptance of this at Congress, that undoubtedly will be reiterated at the Special Congress. In tried and tested labour movement tradition, the arguments will be had behind closed doors and there will be little controversy beyond media sensationalism.
As is often cited by trade unionists, the UK has some of the most restrictive trade unions laws in Europe; however, these are dutifully complied with. The real test will be faced by individual unions in their own disputes. Maybe the trade union movement can stall long enough for the legislation to be repealed or give the impression that it is inoperable by developing short-term strategies based on successful examples in other countries, such as France, only time will tell.