Trade Union Freedom Bill – more hype than substance

The proposed Trade Union Freedom Bill has been much talked up by apologists for imperialism, namely the labour aristocrats of the trade union leadership. Whatever the small advantages there are to be gained from the proposals, for them it is a cynical exercise in diversion, a part of their illusionists’ art. We are intended to believe that the Bill will sort out everything.

In an article in the Guardian on May Day this year Tony Woodley, the general Secretary of the Transport and General Workers Union (T&G), said: “Workers in one factory break the law if they walk out in support of those in another threatened with closure. That is why trade unions and more than 100 MPs – as well as today’s TUC backed May Day march in London – are supporting the proposed trade union freedom bill. It would bring solidarity back within the law and help redress the balance in the workplace.”

It would not bring solidarity back within the law. Are we to believe that the honourable and effective solidarity action taken by the Heathrow baggage handlers in August 2005 would have been within the law under the proposals? Quite the contrary. In a Guardian article at the time Woodley says: “The action taken by British Airways employees in support of the workers sacked by the Gate Gourmet catering firm was unlawful, and was repudiated by the T&G.” Saying that the question of solidarity action needed to be addressed he went on “This is not to argue in favour of the sort of ‘wildcat’ action taken last Thursday [i.e. the very effective action of the baggage handlers]. But it is time to bring solidarity action within the framework of the law, define its legitimate scope and make it subject to regulations on balloting and notice that regulate other industrial disputes.” (Guardian 16 August 2005). In other words it would be made very difficult for effective solidarity action to take place.

The proposals for the Bill do just that, only referring to solidarity action in a very limited way. In fact the totality of the proposals is very limited. John Hendy QC produced a draft of proposed contents of the Bill on 16 January 2006 following the deliberations of an august discussion group of lawyers and trade union officials.

He was far more circumspect, saying in the introduction: “The proposed Bill is intended to take a few small steps on what is a long road towards compliance with the UK’s international obligations on trade union rights and freedoms.” And further: “It is necessary to emphasise that the proposed Bill is very limited: it does not pretend to address the many fundamental injustices and breaches of international law by UK law in relation to workers and trade unions.”

But when we hear the likes of Tony Woodley it is hard to discern these limitations. That is deliberate. The trade union social democratic leadership is doing nothing positive and a lot that is negative. They hope that while we are concentrating on the Bill we will not notice the albeit rather crude sleight of hand taking place as they sell out the workers.

Because of all the hype it is necessary to summarise the actual proposals for this Bill. They come under seven headings.

Protection of a worker’s right to effective trade union membership

This proposal would strengthen a worker’s protection from detriment as a result of a union making representation on his or her behalf. It would also allow the Advisory, Conciliation and Arbitration Service (ACAS) to investigate and over-rule an employer which denied recognition to a representative union on the grounds that it already recognised another union which was not representative of the workforce.

Protection of those taking lawful industrial action

In Britain almost every form of industrial action constitutes a fundamental breach of contract by the worker which can result in dismissal, disciplinary action or being sued. But while the proposals recognise that many European countries deal with this by suspending contracts of employment during industrial action, they do not go that far and would merely make dismissal or other detriment unlawful, with all the difficulties of enforcement.

This, of course, applies to lawful industrial action and would not help when the action was deemed unlawful, as was the case with the baggage handlers at Heathrow – a ballot would first have had to have been held etc!

Non-replacement of those taking industrial action

This proposal would tighten up the unlawfulness of agency workers covering for those taking industrial action, but would not deal with labour hired from other sources, or where production is shifted elsewhere.

Industrial Action injunctions

In seeking an injunction against a strike etc. pending a full court hearing of its legality, employers would have to show proof of likelihood of success rather than that there was a serious issue to be tried. Court consideration of who will be most inconvenienced by a wrong decision about granting an injunction in any case weights the decision in favour of the employer, but it is proposed that they are penalised if they refuse to negotiate etc.

Scope of the right to strike and definition of a trade dispute

Currently all forms of solidarity action are unlawful. The proposals are that it would be lawful to take supportive action (secondary action) “subject to clear and stringent limitations” where workers taking the solidarity action have a “substantial connection to the dispute” and where the “employers to be subject to solidarity action have a substantial connection to the employer in dispute”. This sounds like a lawyer’s field day. The draft proposals admit that the latter could be difficult to draft and may need to be left out! But more on this below.

The definition of a trade dispute would be widened to include employers who step in to carry out work which would have been done by workers in dispute. Action over future TUPE arrangements would also be included.

Industrial action ballots

Current balloting rules imposed on unions are very complex. Slight mistakes can render the ballot invalid and any action unlawful. But while claiming that ballots are a matter of internal union democracy the proposals state that preventing interference at law by employers would be “at this time ….a stage too far”! So employers could still seek injunctions and sue. The proposal is to simplify the ballot requirements and make them valid if minor errors would not have significantly altered the outcome.

The proposals suggest that to emphasise trade union self-governance the requirement to ballot should be incorporated into every union rule book! (more on this below).

It is also proposed to remove the bar on balloting for lawful action if a prior unofficial call has already been made.

Industrial action notices

The proposals say that pre-ballot and pre-industrial action notices to employers have required unions to keep meticulous records of members’ addresses jobs and workplaces. This has resulted in a huge amount of litigation. The proposals are for removal of notices to employers before a ballot, and simplified notice seven days in advance of the proposed commencement of industrial action.

The proposed Bill is not only totally inadequate but also diversionary

The above outline of the proposals (which can be found at may be a bit uninspiring, but it is necessary to show how limited they actually are. This is the content of what has been put forward over the last year or so as the major route to restoring the effectiveness of the unions!

It is necessary here to make a point about compulsory ballots. When this legislation was introduced it was opposed because it went against the democratic practice of voting by a show of hands at meetings where all the issues were fully explored in discussion and debate, and prevented the possibility of immediate effective action. Now the proposal is to incorporate the requirement to ballot into all union rules! Have the arguments changed, or is it that the trade union bureaucracy is pleased that ballots effectively allow them to prevent action? The argument that incorporation in the rule book would preserve union autonomy is ridiculous – independence does not come through willing instead of forced subservience.

The reason that trade union leaders are trumpeting this bill is that they are intent on supporting social democracy. They are saying in effect that within the present law there is hindrance, not to the trade union movement, but to the ability of the social-democratic union leadership to maintain a semblance of leading! Some of the laws actually make them look silly and incompetent, particularly since they refuse to defy them. What they are saying to the imperialist Labour government is: ‘please let us at least look a bit better, you can make these changes and we can still deliver the goods for imperialism and continue to sell out our members.’

Successful action, particularly at the moment when the crumbs from the bourgeois table are getting scarce, requires an understanding of the nature of imperialism and what it is that drives the monopoly capitalist bourgeoisie. Such understanding will make appropriate action different in different circumstances, but what will almost always emerge is that the key to success is effective mutual support. The working class has to be as united and flexible in its actions as is the bourgeoisie.

It is short-sighted in the proposals to try to define a limited “substantial connection” between workers or employers in order for solidarity action to be ‘allowed’. The employers do not keep to this. The whole bourgeois state is there to protect and promote the right of the monopoly capitalist bourgeoisie to exploit. And in addition to that, they know well how to plan and co-ordinate in detail. They can lay down stocks, they can quietly ensure that trained reserve workers are available in the event of industrial dispute, and so on. Have the elaborate preparations made by the state and the employers for the 1984-85 miners’ strike been forgotten?

It is essential that the working class has similar clarity about its objectives and the solidarity to pursue them. That solidarity must extend far beyond limited ‘substantial’ connection! The real substantial connection between all branches of the working class is the need for emancipation and an end to the system of wage slavery. Unless and until the trade unions recognise that they have a role to play in this, they will be limited to trying to hold back the encroachment of ever greater exploitation.

What stands in the way of effective action by the unions is not that the weak proposals in this suggested Bill are not yet enacted. No, it is that the unions are tethered to Social Democracy. Social Democratic trade union officials must be removed from office and replaced by people who really will fight for workers interests. The link with the imperialist Labour Party must be broken.

Yes, we must demand that the anti-trade union laws are repealed. And until they are repealed we need leaders who are ready and willing, not to mention courageous enough, to defy such laws.