Blue tries to strike the red

The new Tory government acted quickly on its manifesto promise to amend the legislation governing strikes and industrial action by raising the thresholds of what is required for a lawful ballot mandate. So, in addition to the existing simple majority rule, the Queen’s Speech in late May set out two new rules. The first requires at least half of eligible union members to vote so that a minimum turnout is established. The second is that in essential public services (health, education, fire and transport), there will also be the requirement that at least 40% of all those entitled to vote must vote for action (meaning that non-voters are treated as ‘no’ voters).

These amendments (along with others on the repeal of the restrictions banning employers from hiring agency staff to provide essential cover during strikes; ensuring strikes cannot be called on the basis of ballot mandates ‘conducted years before’ and tackling alleged intimidation of non-striking workers) will be laid before Parliament as the Trade Union Bill later this year and within the first 100 days of the new government.

There is no demonstrable evidence that new rules are needed for Britain is experiencing not a strike ‘wave’ but a strike ‘drought’, with no prospect that this will change any time soon. Strike action accounted for only just over 750,000 days not worked in 2014. No public clamour to clampdown on strikes existed either – it was not an issue on the doorsteps during the general election and there were no public petitions on the matter (let alone demonstrations calling for further restrictions). Ideology, not attested need, is the driving force here – along with the desire of the Tories to kick unions further when they are already down.

And, there is also no doubt that the changes will make one of the tightest sets of rules in Europe even tighter. When Tony Blair made the statement in March 1997 that British labour law was ‘the most restrictive on trade unions in the western world’, Labour subsequently did very little to undo the measures that had led to this situation. But now, the Conservatives are going to enter a territory that not even Thatcher and the Conservatives of the 1980s imagined was possible.

Although the union reaction has understandably been one of fury, with, for example, the TUC saying the new rules ‘will make legal strikes close to impossible’, all is not lost because the new rules will not mean workers will be quite as hamstrung as the Tories intend and some unions fear.

The now traditional means by which unions have operated under the Conservatives’ 1980s legislation will be changed in some respects. First, the ability to declare an industrial dispute, threaten to ballot and then begin the balloting process will for many groups of workers not have the same purchase as a bargaining strategy as before because many employers will simply sit the process out and wait to see the ballot result if they believe that the new criteria will not be met. Therefore, pre-ballot result bargaining will be curtailed. Attempts to involve ACAS will come to count for much less unless employers are convinced the ballot will be won and the action will be hard hitting upon their operations.

Following on from this, there will clearly be groups of workers are likely to be unable to meet the new threshold rules as things currently stand. These are likely to be large groups of workers, located across many workplaces – which are themselves geographically spread out. This is most likely to affect workers in the public sector and in the larger, more general unions in manufacturing albeit with certain exceptions (see below). The most obvious areas are the civil service, health service, local government (but probably not education and not the fire service, prisons or underground). Here, work group cohesion and union identity are less marked but this is only true for the larger, more general unions and not the small specialist and professional ones (of which there are many in the health service).

Yet there will be many groups of workers for whom meeting the new rules will be quite easy. These will be amongst workers who have greater strategic leverage and a high sense of specialist or occupational identity. Recent examples have been found in Network Rail (RMT), London Underground (Aslef) and Tata Steel (Community, Ucatt and Unite unions). To develop the point, what these groups of workers have in common is not just that they are well organised and powerful but they are also cohesive work groups which have high union identity. But within parts of the public sector, there are also many small specialist occupational and professional unions, and these too are unlikely to be detrimentally affected for the same reasons (even though they are less strike prone).

Then there will be instances where workers decide to ignore the law and strike unofficially. The most obvious routes to this will be where workers are not balloted by their unions for fearing of not meeting the thresholds or where the ballot thresholds are not met but workers want to strike anyway. Either will result in ‘wildcat’ strikes. Whether the initiative to ‘wildcat’ comes from the grassroots or the union in an unofficial ‘nod and wink’ way remains to be seen but already some unions are thinking along these lines. Employers will then lose the ability to foreknow the ‘who’, ‘when’ and ‘where’ of strikes taking place as they do currently under the union notification requirements. The intervention of conciliation service, ACAS, will not help predict or prevent these guerrilla actions, leading to an industrial relations mess. Employers welcoming the new rules will rue the day they came in. Indeed, employers will still require union help to negotiate an end to these types of strikes and disputes.

So let’s turn to the ways in which unions will be able to get around the new rules. First, and in addition to the use of what can be called ‘unofficial unofficial strikes’ or ‘official unofficial strikes’ (see above), unions will become more selective in the deciding upon who is balloted (and where and when) for strike action so that ballots are not lost. So, some unions may cease to ballot members nationally, instead preferring to ballot particular nations/regions or particular grades and groups within a national bargaining unit.

This may lead to a variation of the previous types of ‘smart strikes’ where selective groups of workers are used as the vanguard for others. For example, a national strike may see workers in the selected regions/grades striking for longer in order to try to create the same amount of leverage as national strike might (and being supported financially by these other members). In the public sector, rather than going for breadth of strike participation in order to try to exert political leverage, more selective strikes may target revenue streams and essential operations far more so than has been the case so far. Key pressure points in the year based upon audits, accounting and public launches may be acted against.

More unions will focus upon industrial action short of a strike far more because it is a lower cost alternative to striking and members will, thus, be more prepared to vote ‘yes’ in an industrial action short of a strike ballot because there is little or no loss in pay involved. Such action can take the form of overtime bans, work-to-rules, work-to-contracts and go-slows. They can be targeted to the most opportune times in terms of an employer’s business or operations. For some workers in some organisations and business action short of a strike is more hard-hitting than strike action.

Assuming any restrictions in the Trade Union Bill are not too onerous or all encompassing, the kind of leverage campaigns most obviously run by the likes of the Unite and GMB unions will become more important where strike action cannot be delivered or is in doubt. Finally, in order to make what action can be taken more hard-hitting, more coordination between unions will be required.

If the Tories had really wanted to increase turnouts and strengthen mandates as they professed, they would have introduced e-balloting and/or workplace ballots. But that would miss the point – because they do not. Making this point – and that few MPs would be elected if the same rules were applied to Westminster elections – is politically necessary but it does not get us very far in practical terms. The serious option for the union movement is to figure out how to work around the new law – not by accommodating to it but by being imaginative and doing things differently from before.

Gregor Gall is professor of industrial relations at the University of Bradford and runs a research service for unions upon which this article is based. Contact him for details of the research service