LibCon ministers and the London Mayor are muttering darkly about how most trade union members did not vote for the strikes and that it might be necessary to change the law if workers persist in disrupting public and emergency services in this way. But what is the legal position and would it be right to make striking more difficult?
These problems have a long history. The Combination Act 1799, and the Master and Servant Act 1823 stipulated that all workmen were subject to criminal penalties for disobedience, and calling for strikes was punished as an “aggravated” breach of contract. But then the position was slowly liberalised and through the Trade Union Act 1871 and the Conspiracy, and Protection of Property Act 1875 trade unions were legitimised. Toward the turn of the century the House of Lords emphasised that businesses should be free to organise into trade associations in the same way that employees organised into unions. However, with growing unrest and industrial action the House of Lords changed its mind. Soon afterwards the Taff Vale judgement made unions liable for the costs of industrial action. Although employers could dismiss employees without notice, employees in a trade union were open to penalties for withdrawing their labour.
This case led trade unions to form a Labour Representation Committee, which then became the Labour Party, to lobby for the reversal of the law. The Trade Disputes Act 1906 prescribed that any strike “in contemplation or furtherance of a trade dispute” is immune from civil law sanctions. The Trade Boards Act 1909 created industrial panels to fix minimum wages.
Discrimination in employment was prohibited on grounds of race in 1965, gender in 1975, disability in 1995, sexual orientation and religion in 2003 and age in 2006. Starting from the Contracts of Employment Act 1963, workers gained a growing list of statutory rights, such as the right to reasonable notice before a fair dismissal and a redundancy payment.
From 1979, the Conservative government enacted laws reducing the power of trade unions. Reforms to the internal structure of unions required that representatives be elected and a ballot is taken before a strike, that no worker could strike in sympathetic secondary action with workers with a different employer, and that employers could not run a closed shop requiring all workers to join the recognised union. The wage councils were dismantled. In 1997 the new Labour government brought the UK into the European Union Social Chapter, which has served as the source for most reform in UK law since that time. The National Minimum Wage Act 1979 established a country-wide minimum wage. The Employment Relations Act 1999 required employers to compulsorily recognise and bargain with a union.
A ‘repeal of all anti-union laws’ is official TUC policy. A ludicrous objective since it would be impossible to get agreement on what laws are anti-union, but they are on to something. What is needed is for the repeal of all laws relating to the workplace or industrial relations. The common law that applies to all of us for activities outside work is just as adequate for our needs when we are working as it is when we are not.
When a person enters into a contract to work for somebody else they have all the same rights and responsibilities as a person contracting to buy a house, borrow money, go on a holiday or make any other commercial transaction.
It is nonsense to have special laws for picketing when the common law of public order is long established. A workplace dispute which spills onto the public highway is no different from a possibly unruly gathering outside a football match, pop concert or night club.
Just as it was wrong for the state to prevent the formation of unions, it was wrong to protect contact breakers from the consequences of their actions and the huge body of industrial law since then has only confused and worsened the situation.
The reason we need government is to protect the life and property of citizens from crime and external threat. The police have not been on strike because it is illegal for them to do so, and those who have chosen to join the military do not have trade unions. As far as the rest of the public sector is concerned there is only one solution to their pension problems. That is to transfer all of these ‘services’ to the private sector and let the new employers work out the right package of remuneration for their staff as determined by the market in which they operate.