Does a new winter of discontent beckon, or are unions risking new labour reforms?

By calling for a ‘general strike’, Unison may have revived calls for reform of industrial action law, says Tom Flanagan (pictured)

As part of an impassioned debate in the Trades Union Congress (TUC) conference on the motion of support for industrial action, Dave Prentis, the general secretary of Unison, declared: “As general secretary of Unison, I give formal notice to 9,000 employers that we are now balloting for industrial action.”

There has since been a lot of talk about the national ‘day of action’ scheduled for 30 November, which has sometimes been referred to as a ‘national strike’.

While the conference duly passed the motion of support for industrial action, the reality is that there is a statutory legal process which needs to be followed by unions in order to give protection against legal reprisals to its members and the union itself when calling for and conducting industrial action.

A verbal declaration at a political conference is not part of that procedure. Therefore, the action due on 30 November cannot be classed as a strike, unless Unison and other unions follow the necessary procedures in time to choose that day as a strike day. For that to be the case, Unison had to give 9,000 separate written notices of industrial action ballot to the employers concerned.

National strike

The current position of the law in the UK on industrial action ballots means that it is not possible to call a ‘general strike’. It is possible to call a number of co-ordinated strikes around the country, with different employers and even different issues, as long as there is a trade dispute in all of them.

The main reasons why this tends not to happen often, particularly in the private sector, is that it would be extremely difficult to organise and co-ordinate – from the statutory notice to organising the strikes themselves – and there tends not to be a commonality of interest among different sectors, businesses and types of employee. It is more likely in the public sector where there is often a national collective bargaining process and more of a commonality of interest, but it is very difficult to organise.

There now appears to be a greater chance of commonality of interest, at least in the public sector, over proposed changes to the public sector pension schemes.

Since the TUC conference, public sector unions have, indeed, been giving notice of ballots for strike action, aiming at co-ordinating action on 30 November. There is a statutory timetable to follow and without allowing for unforeseen slips, working backwards from 30 November, the latest safe date for the start of the process – notice to hold the ballot – was 31 October or 1 November, depending upon how quickly the union would expect the result to be available.

The process adopted by the relevant unions is a standard set of notices and letters being delivered to the appropriate recipients of all of the relevant employers of the particular groups of public sector workers. Unison was the first to publish the result on Thursday 3 November, followed closely by education sector ballots in Scotland.

This is where it becomes more interesting. On one level, one could argue that there cannot be a lawful strike on this issue because there is no trade dispute between the various groups of workers and their actual employers.

One of the prime drivers behind some of the statutory timetable is to provide the opportunity for a strike to be averted by negotiations between the employee representatives and the employer. While changes to pension rights would generally be a trade dispute, in this instance it is virtually impossible to envisage any negotiations with individual employers. The dispute is not with those individual employers but with the Government. Having said that, terms and conditions of employment in the public sector as a whole are managed by agreed, national collective bargaining processes, so let us park that point for now.

Renewed reform calls

Unison may have inadvertently revived calls for industrial action ballot legislation to be reformed. Around 245,000 of the union’s members voted in favour of 
taking strike action, a majority of those voting.

However, the turnout in the Unison ballot was only 29% and even though 78% of those who took part in the ballot voted in favour, in effect that is less than a quarter of the voting membership, at only 22.5%. This is hardly a ringing endorsement for industrial action. If Unison went ahead on the strength of this majority, there may be renewed calls for reforms to be introduced similar to those flagged over the last 12 months by the CBI and in the report of the think tank Policy Exchange.

These could include requiring a minimum percentage of the workforce or union membership to vote in a ballot or to vote in favour. For instance, at least half the workforce vote (ie, union members) and/or a turnout of at least 40% of those entitled to vote. That latter requirement would mean that the Unison ballot result would not constitute sufficient support for strike action.

There is an argument that organisations – and potentially the whole country – should not be brought to a halt on the vote of a small percentage of the workforce.

Nevertheless, while private sector employees have had to work through the impact of recession over the last two years on their pay, terms and conditions of employment and pensions, the chances of a genuinely national strike look remote and if the low turnout of the Unison ballot is reflected throughout the public sector, it does not look as though there is a strong appetite for action even there.

Tom Flanagan is a partner and national head of employment at Irwin Mitchell. For a more detailed analysis of these issues, see the article A striking case for reform, in Legal Week 19 May 2011, also by Flanagan.