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Posted on 21 March 2011 at 15:15 GMT

Rail unions win over anti-strike laws

Tube strike: RMT strikers picket the London Underground, photo Paul Mattsson

Tube strike: RMT strikers picket the London Underground, photo Paul Mattsson   (Click to enlarge)

On Friday 4 March 2011 the Court of Appeal in London handed down definitive judgements in two important industrial action cases.

Alex Gordon, president of Rail, Maritime and Transport workers union (RMT)

In both ASLEF v London Midland and RMT v Serco Docklands Light Railway, High Court judges had previously granted injunctions banning strike action after finding union strike notices "defective" and union explanations of how they ensured reliable membership data for balloting and engaging in strike action "inadequate".

The superior court has now overturned those injunctions and comprehensively disposed of arguments originally used in the High Court to justify them.

Such an authoritative judgement by the Court of Appeal would be of great significance at any time. However, coming as it does when government policies to destroy up to 750,000 public sector jobs and an estimated 900,000 private sector jobs through cuts and outsourcing, while attacking wages, pensions and public services are fuelling demands for trade unions to lead a fightback, the effect of this Appeal Court judgement is potentially explosive.

RMT general secretary Bob Crow described the judgment as: "not only a victory for staff on Serco Docklands and RMT's 80,000 members but also a massive victory for seven million trade unionists in the UK."

"The injunction would have taken anti-union laws in this country to within a whisker of effectively banning the right to strike and would have tightened the noose to the point of strangulation around the necks of nurses, firefighters, ambulance crew, home helps and others fighting back.

"This victory helps clear the path for those workers to take action".

High Court's use of 'trifles'

Alex Gordon, Rail, Maritime & Transport Workers Union (RMT) President, speaking at the Socialism 2010 rally, photo Paul Mattsson

Alex Gordon, Rail, Maritime & Transport Workers Union (RMT) President, speaking at the Socialism 2010 rally, photo Paul Mattsson   (Click to enlarge)

In the London Midland case, the union mistakenly sent ballot papers to two members not entitled to vote (out of 604 balloted, 86% voted for strike action) - one had changed employer, the other had become a manager.

This was sufficient for the High Court to grant its injunction.

The Appeal Court ruled that this should have been dealt with as a small accidental failure and found the "de minimis" exception (a Latin tag meaning 'trifling') should apply in employment law as in other areas of law.

Similarly, the High Court found the union's explanations were inaccurate because the word "audit" was used to describe its method of checking membership records.

Legal counsel for the employer even argued that, to conduct a strike ballot, RMT should retain the services of auditors such as KPMG, whose expertise impressed so many corporate clients from Enron to Lehman Brothers.

The Appeal Court said the union's explanation of its membership data was simply for employers "to understand something about the reliability of the data supplied.

"Something, but not necessarily very much".

The court ruled that the use of the word "audit" is not misleading. Neither is there any obligation on the union to use identical job category definitions to the employer.

The law should be given a "likely and workable construction" rather than a restrictive one.

Hair-splitting rejected

Tube strike: RMT strikers picket the London Underground, photo Paul Mattsson

Tube strike: RMT strikers picket the London Underground, photo Paul Mattsson   (Click to enlarge)

The implications of the Appeal Court's ruling are significant and immediate. While employers will continue to apply for injunctions against strike action on spurious and vexatious grounds using legislation memorably lauded by Tony Blair as: "the most restrictive on trade unions in the western world", many of the avenues used in recent years in Metrobus v Unite, EDF v RMT, BA v Unite and Network Rail v RMT, which relied on legal hair-splitting and nit-picking trivia are now closed.

Additionally, Justice Patrick Elias and his colleagues in the Appeal Court made another significant ruling. Common law recognises no right to strike in Britain, however the Appeal Court confirmed that international law does confer a right to strike under International Labour Organisation Conventions 98 and 151.

In addition, the European Convention on Human Rights upholds the right to strike as an element of Article 11(1) on freedom of association.

In a further case, RMT is taking the British government to the European Court of Human Rights for breaching international law through prohibiting the right to take sympathetic (or solidarity) action banned as 'secondary action' by the Tory government in 1980.

Further attacks

Given the profound and prolonged character of the current economic crisis and the history of attacks on trade unions and collective bargaining in Britain by the ruling class, it is likely the Tory/Lib Dem coalition government will propose new primary legislation further restricting the right to strike.

Already far-right voices such as London mayor, Boris Johnson, and the Policy Exchange think tank, have argued for industrial action ballots to achieve a minimum participation threshold and for restrictions on the right to strike for workers in essential public services.

More likely however, will be an attempt to extend the 'proportionality' concept, which has been imported from European law in a number of recent cases by the EU Supreme Court, the European Court of Justice.

This gives judges power to decide what forms of action (if any) are appropriate in lawful industrial disputes, something not even Thatcher's anti-union laws achieved.

For workers facing the onslaught of European Union and UK government austerity policies, the lessons are very clear. The successful legal appeal by ASLEF and RMT has created a window of opportunity allowing trade unions to fight back using strike action to defend jobs and services.

The policy of coordinated strike action to defeat austerity cuts agreed at last year's TUC conference can now be a practical reality.

As cuts start to bite in 2011, trade unions need to bring forward a plan for a strike movement leading to generalised strike action to defend trade union members, their families and communities from the impact of government policies.

There are now fewer legal impediments to doing so.

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