By Becky Crocker, RMT activist
“Collective bargaining without the right to strike is collective begging” – Institute of Employment Rights (2016)
Free Our Unions is campaigning for a left-led Labour Government to repeal the anti-union laws and replace them with a strong right to strike. We are puzzled that the prominent labour rights think tank Institute of Employment Rights (IER) has chosen this time to fall silent on its longstanding demand to ‘repeal and replace’ these hated laws.
In an article in Tribune magazine (June 2019), Sarah Glenister outlines the IER’s vision for labour law under a Labour government. She foregrounds the need for a legal framework to secure collective bargaining and other sights; she makes no mention of the right to strike whatsoever.
The article makes it clear that the IER is currently approaching labour law from in a legalistic, formalistic manner. Glenister’s vision is of workers’ rights without workers’ self-activity. Strikes and struggles, the prerequisite for any legal framework to have teeth, are not mentioned – at all.
Glenister’s piece is based on the IER’s Manifesto for Labour Law (or at least its second version – the distinction is important), a document that has already influenced the Labour Party and will undoubtedly influence the next Labour Government. To the Free Our Unions campaign, it is important to engage with the IER’s influential approach; it provides an interesting contrast with our orientation towards the active, struggling labour movement.
Glenister opens by painting an accurate picture of employment rights today: ‘The vast majority of employment contracts are now made and imposed unilaterally by the employer’. She goes on to say, ‘A significant proportion of the UK’s thirty-one million workers now find themselves employed in a practically lawless ‘Wild West’, exemplified by gig economy employers such as Uber’.
We are undoubtedly in an era where collective organisation for workers’ rights is at a low ebb. Last year the UK saw the lowest strike figures since records began. This historic low perhaps goes some way to explaining the absence of any mention of workers’ struggle in Glenister’s article. It addresses casualisation purely in terms of legal demands, such as the Living Wage. It does not mention the strikes that are taking place amongst Deliveroo drivers, for instance, and many other workers, who are fighting collectively against casualised conditions.
In Glenister’s conception, it seems that improvements will be delivered for workers via government reform not workers’ action. She seems to assume that the current low level of workers’ struggle is an eternal fact; she certainly doesn’t mention that workers’ activity will be central in turning this situation around.
Glenister notes that inequality in Britain has soared. She rightly attributes this to the erosion of collective rights, which began under Thatcher. But another part of the picture is that the anti-union laws have made it harder for workers to struggle for higher wages, shorter working hours and a greater share of the employers’ profits, creating the conditions for inequality to soar. The neoliberal assault waged by the ruling class on the workers’ movement encompassed the erosion of collective rights and the introduction of the anti-union laws.
In the 1980s and 1990s, the Thatcher and Major Governments introduced nine pieces of legislation that made most forms of trade union action illegal. They outlawed solidarity and political strikes and created a series of legal hoops to jump through – notice periods, secret postal ballots, etc – all of which restrict the timing and effectiveness of workers’ action.
Glenister’s prescription is ‘to shift the focus of employment law from one based on statutory individual rights to one based on collective rights’. This would undoubtedly address inequality. However, unless we also fight to create the legal and political and social space for workers to struggle effectively, we will limit ourselves to partial success at best.
The Tories mounted a twofold attack on collective bargaining and the right to strike. We need to assert ourselves on both of these fronts if the labour movement and a Labour Government is to maximise on the chance of addressing inequality.
The central call in Glenister’s article is for the ‘reinstatement of sectoral collective bargaining’. As Glenister explains, this would mean establishing ‘national joint councils’, where employers and workers are represented. Glenister also advocates ‘giving workers the right to be represented by their union in all matters pertaining to work’. The article gives the impression that the mere existence of workers’ representation within these structures would deliver ‘a new deal for workers’.
Yes, these things can help deliver for workers, but not on their own. Workers with collective bargaining rights can still be ignored. The power to say ‘no’ rests with the employer. For example, workers on London Underground, who have union negotiated pay, and terms and conditions, are at present preparing to ballot for strike action because the employer is refusing to listen to the demands in the pay claim. The history of workers’ organisation tells us this story time and again.
Collective bargaining needs to be underpinned by the ability to take effective industrial action. At present, the effectiveness of industrial action is weakened by legislation that grants control of workers’ action to employers and union bureaucracies. By all means, let’s fight for stronger collective bargaining rights, but let’s accompany that with a fight for effective industrial action to make the employer pay attention to our collective demands.
Glenister herself acknowledges that, ‘rights without enforcement and effective remedies are rights written in sand’. Her article lists potential remedies for non-compliant bosses:
• ‘Union representatives need adequate powers to investigate reports of non-adherence to collective agreements’;
• ‘health and safety representatives should have the power to stop jobs that present an immediate risk’;
• ‘where necessary, labour inspectors employed as part of an independent agency should have the power to bring breaches in front of the labour courts, up to and including the reinstatement of unfairly dismissed workers’.
Curiously, these recommendations contain no prospect of workers playing the enforcement role in their own workplaces. The writer advocates a disempowering framework in which there is a greater role for external ‘independent’ labour inspectors than for workers’ self-activity and organisation.
The focus on legal mechanisms rather than struggle means that she misses some ways in which the current situation is potentially more favourable for workers than the one she advocates. For example, the right of health and safety reps to stop an unsafe job is not a clear-cut advance on workers’ current ability under the Health and Safety at Work Act to refuse to work on health and safety grounds if we are in ‘serious and imminent danger’. This right has been used to effect by RMT members on London Underground, for example during Fire Brigades Union strikes, when drivers and station staff refused to work because there was significant risk to working on the deep level Tube network with no fire service.
Refusing to work on safety grounds has the advantage that it involves the whole workforce in bringing an unsafe practice to a halt on the spot, rather than delegating that role to a rep. With the anti-union laws in place, it is currently hard for a union rep to organise a refusal to work on safety grounds without being accused of organising unofficial industrial action. These difficulties could be obviated by scrapping the anti union laws. This is potentially be a more empowering and effective method for ensuring safety at work than the one proposed by Glenister.
Throughout this article, I have referred repeatedly to the idea of workers’ self-activity. It would be worth taking a moment to spell out why this is such a crucial concept for those of us involved in the Free Our Unions campaign. Our starting point is the capitalist workplace, which is organised so that during our hours of work, the time we sell, our bosses really do have almost dictatorial power. We do the work they want, as fast as they want, under the conditions they grant us. The only thing that stands in the way of this power being absolute is that we retain the ability to say, ‘no’, to stop the job, to nip unsafe or unjust practices in the bud.
Without this ability, the workplace is little more than a prison and the worker much closer at least to a slave. When workers say, ‘no’ and act on it, they become doers and deciders in contrast to the passive, humble and obedient role that they are usually allotted under capitalist labour relations. Workers’ self-activity is not only the most effective method of enforcing workplace justice, it is necessary so that human freedom is not completely suspended for the duration of each working day.
We can’t have workers’ democracy without this kernel human freedom within the workplace. That is why calls for workers’ democracy, which omit mention of workers’ organisation, ring hollow. The article makes bold-sounding demands, like workers’ representation in government, on pensions committees – even ‘the right to vote in company meetings’. But without calling for workers not only to represent but to act for themselves, these visions of even limited workers’ democracy are almost utopian. We can have our voices heard but is anyone listening? We can vote in management meetings, but, while ownership and control rests solely with management, we will be outvoted, at best.
Like John MacDonnell and others in the Labour Party, this article makes reference to a concept of economic democracy. This concept must entail workers having power in their lives, e.g. the ability to take immediate and effective direct action to stop an unsafe practice at work. This is the only meaningful check on the absolute power of an employer. It must run alongside our ability to make democratic decisions about our workplaces and the way that society is run.
This is only possible if we repeal the anti-union laws. If the Labour Party is serious about economic democracy, then it must fight for the repeal of the anti-union laws and their replacement by a strong right to strike.
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