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From The Socialist newspaper, 17 October 2007

Trade Union Freedom Bill: Banishing Thatcher's anti-union legacy?

For the last quarter of a century the labour movement has been shackled with what Tony Blair once boastfully described as the most restrictive laws governing trade unions in the western world. Jim Horton looks at how and why these laws evolved and discusses how they can be defeated.

Last week, the CWU became the latest trade union to fall foul of Britain's unfair industrial relations legislation.

The current anti-trade union laws were first introduced by the hated Thatcher government during the 1980s, then enthusiastically retained by Blair after 1997.

There is no indication that Gordon Brown has any intention of upsetting the big business backers of New Labour by repealing them.

These laws have been condemned for being in contravention of fundamental human rights and international labour law conventions, to which the government is a signatory.

Over successive years individual trade unions have passed motions calling for their repeal.

In 2005, both the TUC and Labour Party conferences supported repeal and called for the introduction of a trade union freedom bill.

On 18 October 2007 a national parliamentary rally for trade union freedom will take place. It has been organised by the United Campaign to Repeal the Anti-Trade Union laws in support of John McDonnell's Trade Union Rights and Freedoms Bill (TURFB), listed in parliament the following day.

Supporters of the TURFB say that its enactment would strengthen trade union rights. It would do this by providing better protection for striking workers, with simpler and fairer industrial action balloting and notice procedures.

Also it would reform the use of injunctions by employers, allowing solidarity action in some circumstances and prevention of the use of replacement agency labour during strikes.

No decent trade unionist would oppose these measures in the sense that they represent a step forward from the current legal restrictions and quagmire. However, a debate is needed on how trade union freedoms can be restored, given that even the very modest provisions contained in the Bill are highly unlikely to reach the statute book.

On 1 March 2007, government minister Jim Fitzpatrick disgracefully 'talked out' Paul Farrelly's Temporary and Agency Workers' Bill. This called for better employment rights for temporary and agency workers, thus also blocking the first reading of the Trade Union Freedom Bill.

Time and again workers, provoked by management, have been forced to take unofficial industrial action, including most recently CWU members.

While the leaders of the trade union movement have rightly thrown their weight behind the Bill, they have generally not been prepared to back workers who unavoidably fall foul of current provisions that make it virtually impossible to organise an effective response against aggressive employers.

The notorious sacking by megaphone, at a few minutes notice, of hundreds of low-paid, Asian women at Gate Gourmet in August 2005, was a key factor behind the drafting of the first Trade Union Freedom Bill in 2006.

As was the symbolic hundredth anniversary of the enactment of the 1906 Trade Disputes Act, which gave trade unions and their members more freedoms than workers have today.


The history of anti-union legislation

The Trade Disputes Act 1906 was enacted by a Liberal administration under pressure from an angry and growing trade union movement flexing its political muscle. This was reflected in the burgeoning support for the newly formed Labour Party, following the adverse judicial decision in the infamous Taff Vale Railway case of 1901.

From their inception in the 18th century trade unions had been declared illegal by the capitalist state with work stoppages deemed criminal and combinations of workers a conspiracy. By the second half of the 19th century, with the continued growth of the trade union movement and the limited extension of the franchise to sections of the working class, governments introduced laws removing trade unions and their activities from criminal liability.

However, at so-called common law, trade unions remained liable for actions in tort, that is civil wrongs. Common law was, and remains, judge-made law, ie the decisions of a judiciary related by class ties to the employers and hostile to trade unions.

By the late 1880s, with employers adopting an increasingly aggressive stance towards the rapid development of the new unionism of the unskilled workers, the judiciary sought to make decisions calculated to circumvent existing statutory protection for unions.

Industrial action was, and remains, illegal at common law, as virtually all industrial action is in breach of the employment contract, entitling the employer to sack, discipline or sue individual workers.

Prior to the Taff Vale Railway case it was legally accepted that, as unincorporated associations, trade unions could not be sued for damages in tort, only their officials. But in the Taff Vale Railway case the House of Lords held trade unions as organisations liable for losses suffered by an employer in a strike.

The Amalgamated Society of Railway Servants was ordered to pay 23,000 in damages and 19,000 in legal fees, in total equal to over two million pounds today. This decision threatened to bankrupt the unions out of legal existence.

Following the Taff Vale judgement, trade unions could, and today still can, be sued for inducing a breach of or interfering with an employment contract, as well as 'intimidation' and 'conspiracy'.

The 1906 Trade Disputes Act (TDA) was significant in that it reversed the Taff Vale decision and gave complete immunity to trade union organisations, thus protecting their funds. It also gave union officials immunities from known common-law liabilities providing industrial action was in contemplation or furtherance of a trade dispute, which included action to enforce a 'closed shop' and solidarity action.

Right to strike

However, notwithstanding its benefits to trade unions, the 1906 Act did not enshrine a legal right to strike. Rather than abolishing common law liabilities the TDA merely gave union members protection during an industrial dispute. This allowed the bosses, who deplored the victory of 'rampant collectivism' and 'labour union terrorism', to claim that unions were being placed in a privileged position.

This was to haunt the unions in the ensuing decades and underpinned Thatcher's anti-union propaganda in the 1980s.

The TDA was welcomed by ordinary trade unionists. During the Belfast dock strike of 1907, dockers' union leader Jim Larkin had printed and distributed copies of the 1906 Act. Three years later the Cambrian Combine miners were accused of 'taking advantage' of the 1906 Act during their protracted strike of 1910-11.

The 'Golden Formula' immunities of the TDA 1906 endured more or less until Thatcher's onslaught against the unions in the 1980s.

Although, following the defeated general strike of 1926, the Conservative government in 1927 amended the TDA 1906 to make the instigation and organisation of general strikes liable to civil and criminal sanctions. This and other anti-union measures were not repealed until 1945.

On the eve of the second world war the employers had come to view moderate, constitutional trade unionism as a bulwark against radical alternatives that threatened to challenge managerial prerogatives and the capitalist system. However, the early post-war Labour and Conservative governments discussed whether to ban unofficial strikes and impose pre-strike ballots, but both were rejected, fearing massive industrial and political conflicts at a time of an emboldened and growing trade union movement.

This issue became even more pressing for the bosses by the late 1960s as union members increasingly took militant action to defend their living conditions at a time of economic decline in Britain. The response of Harold Wilson's Labour government was to propose restrictions on industrial action. The incongruously named In Place of Strife was hastily withdrawn following union opposition.

A couple of years later Tory prime minister Edward Heath's hated 1971 Industrial Relations Act was defeated by mass action by the trade unions and later repealed by the Labour government of 1974 which restored the protection afforded by the 1906 Act.

However, the judiciary continued to make judgements aimed at undermining statutory protection, particularly in the 1970s and most notoriously against the NUM and its members during the 1984-85 miners' strike.


The Thatcher years

By 1979, with the collapse of the post-war consensus on full employment and the welfare state, Thatcher's Conservative government had calculatingly devised a plan to rout the unions, which were seen as the main obstacle to restoring the profitability of British capitalism at the expense of workers.

Learning the lessons of the defeat of Edward Heath's ill-fated attempt, Thatcher's 1979 government adopted a piecemeal approach. Step by step during the 1980s and 1990s, immunities were removed and restrictions imposed on the right to picket.

Industrial action to enforce the closed shop was made unlawful and the definition of a trade dispute was narrowed, including restricting industrial action to disputes between workers and their own employer, thus outlawing solidarity action.

However, over the last twenty years it has been the complex balloting and notification procedures that have caused the biggest headache for trade unionists trying to organise industrial action in response to vicious management attacks. This has resulted in a mass of litigation. Failure to comply can make an otherwise legal strike unlawful, leaving the union open to sequestration of its funds.

With only slight modifications, these provisions remain firmly on the statute book under New Labour. To conduct industrial action, unions must give employers at least seven days notice of the intention to hold a ballot and following a successful ballot, another seven days notice of when the industrial action will start.

But this understates what are bewilderingly complex procedures which potentially expose unions to employer applications for injunctions to prevent industrial action from taking place, even where a majority of workers have balloted in support of action. The process of organising industrial action can take at five or six weeks making a spontaneous response to management provocation unlawful and allowing employers to prepare their reaction.


The Trade Union Rights and Freedoms Bill

The Trade Union Rights and Freedoms Bill seeks to simplify the procedures, including removing the requirement to give employers notice before balloting members, although balloting will remain a statutory requirement, rather than a matter of internal union democracy.

The TURFB will still oblige unions to give seven days notice to employers of the proposed commencement of industrial action. Although, the TURFB would prevent legal action by employers, such as Royal Mail recently, over trivial, technical or accidental breaches of the balloting or notification procedures.

The proposals to outlaw the use of replacement labour in disputes and to allow solidarity action, even if limited, are to be welcomed. As is the protection from dismissal and harassment for all workers taking lawful industrial action regardless of the length of the dispute.

While all trade unionists should support the Bill, it has serious limitations. Failure to comply with the proposed new simplified balloting and notification procedures, for example, would still leave unions and their members vulnerable to employer legal action. The Gate Gourmet workers would still be viewed as having taken un-balloted and un-notified industrial action, as also the solidarity action of the BA check-in staff and baggage handlers, leaving them all unprotected against dismissal.

The United Campaign itself accepts that the proposed Bill is very modest in its 'aspirations' and "does not pretend to address all the injustices and breaches of international law".

The Bill only goes a small way towards restoring trade union freedoms established 100 years ago by the TDA 1906 and barely dents the current raft of anti-union laws.

Moderation is justified by its advocates in order to broaden the support for the Bill. But why, given that the trade unions' position is for the repeal of the anti-union laws? Emphasising their moderation, the advocates of the TURFB have stated that it is not about returning to the "flying pickets and mass walkouts of the 1970s" and therefore would not give the Labour Party bad publicity.

This is the nub of the question, their continuing attachment to Labour; but unfortunately for the Bill's supporters New Labour rejects even its modest proposals.

The issue of trade union rights starkly exposes the changed character of the Labour Party and the futility of attempts to reclaim it for workers. The Labour Party that supported the Trade Disputes Act of 1906 is gone, along with all the gains of that piece of legislation. New Labour is enthusiastically wedded to Thatcher's anti-union laws.

The unions should be campaigning for the complete repeal of all the anti-union laws and supporting workers who are compelled to take unlawful action.

But as in 1906, the trade unions need their own political voice in parliament. This requires the bold step of the unions actively leading the campaign to establish a new workers' party.


Trade Disputes Act 1906

The current law

Trade Union Rights and Freedoms Bill

The scandal of the injunction

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