How we adapt to the new Trade Union Act

The Trade Union Act 2016 comes into effect for all industrial disputes where the ballot is to commence after 1st March 2017. Due to a well coordinated campaign by trade unions and the Labour Party, much of it lobbying behind the scenes, many of the more draconian aspects that had originally been proposed by the Conservative Government in the original bill had been dropped prior to Royal Assent, however there are still significant changes that will be challenging for unions.

While it may be counter-productive to pick over the entrails, much of the motivation for the Act’s changes to the law relating to industrial disputes possibly relates to a few instances of action by some public sector trade unions, and also due to the use of imaginative alternatives to traditional industrial action by GMB and Unite. The government therefore made the unwise decision to enact broad legal changes to cover all industrial disputes where their specific objectives could have been better achieved by a more proportionate response, or indeed by stepping back from government involvement in industrial disputes altogether.

It is clear that the drafts of the legislation were informed by people who have no understanding of industrial relations. There was no problem that needed solving. In particular, the level of strikes is very low by historical standards, and picket line violence is a thing of the past.

With regard to so-called “leverage” campaigns, the government had commissioned a report by Bruce Carr QC in 2014, which looked at allegedly “extreme” forms of industrial action, inspired by somewhat hysterical reaction to Unite’s campaign at INEOS. For example, at Prime Minister’s Question in November 2013, there was a following exchange:

“Steve Baker : Hard-working businessmen facing tough decisions, decent trade unionists and newspapers including the Daily Mirror will have been appalled by the so-called leverage tactics of Unite in the Grangemouth dispute. Will my right hon. Friend take steps to ensure that families, children and homes are protected from a minority of militants?

“The Prime Minister: My hon. Friend makes an important point. This sort of industrial intimidation is completely unacceptable. We have seen “Wanted” posters put through children’s letterboxes, we have seen families intimidated and we have seen people’s neighbours being told that they are evil. What has happened is shocking. It is also shocking that the Labour party is refusing to hold a review and to stand up to Len McCluskey. At this late stage, it should do so.”

“Leverage” tactics have been effectively employed by both GMB and Unite for a number of years. The practice is actually very fairly described by the Chartered Institute of Personnel and Development:

“… seeking to reinforce or strengthen a trade union’s position in relation to one or more employers by involving third parties. Leverage tactics can be seen as modern industrial action, including the use of social media, targeted e-mails to senior executives, and focusing on supply chains to bring an organisation to account through corporate social responsibility “soft laws”.

In general, this can be seen as legitimate trade union activity designed to ensure an organisation is held to account and reflecting a democratic right to protest within the law. Used properly, this can offer a useful check and balance for organisations. In its most basic form, leverage might be seen as simply communication – for example, using the media to make a case. […] The leverage this affords to trade unions to influence employers’ behaviour is exercised by building on the risks to employers’ “brand” or reputation of any perceived misbehaviour.

The adoption by Unite of a declared “leverage” strategy may also reflect an acceptance that employees are increasingly reluctant to sacrifice pay through strikes or other traditional forms of industrial action. Leverage can be seen as an alternative method of putting pressure on an employer to concede trade union demands.”

It is precisely because such tactics are effective, such as humorously dressing up as a crocodile and protesting outside the workplaces of those personnel managers who participated in the unlawful practice of blacklisting, that trade unions do them.

In any event the Carr report made no recommendations relating to such use of publicity stunts and social media campaigns, and it is impossible to see how constraints on such activity could be consistent with the rights to organize and democratically protest in a liberal democracy. The original drafts of the Trade Union Bill proposed restrictions to such practices, but these were withdrawn.

However, the point made by CIDP about using leverage as a substitute to traditional industrial action does draw attention to a potential pitfall. The purpose of trade unionism is to improve the bargaining position of workers. The formal contractual basis of an employment contract assumes that the employer and employee stand as equals on the legal stage, but the real social relation is that when dealing with an individual employee the employer holds the power. Even at the level of legal rights, the political and economic weight of employers ensures that the courts are more likely to favour the bosses than the workers.

Workers redress that imbalance though combination, and the source of durable collective strength relies upon financially sustainable organisation. Therefore leverage campaigns used to strengthen collective bargaining in conjunction with effective density of membership are a powerful weapon. But leverage campaigns cannot become a substitute for the hard work of building collective capacity, the unglamorous graft of recruiting members, bringing forward shop stewards, educating and informing the membership, and encouraging participatory lay democracy.

This is why it is necessary for trade unionists to take very seriously the challenges of the Trade Union Act, but if we take a level headed view, we can see that by adapting our practices there are no insurmountable obstacles.

The Prussian General, Von Clauswitz, famously observed that war is diplomacy by other means. In his era in Europe this was true, once the competing principalities and Kingdoms had failed to reach diplomatic agreement over a dispute, then war would be engaged in to test the relative bargaining strengths of the competing parties prior to diplomatic negotiations recommencing. Similarly, industrial action is not an end in itself, it is just one stage in the never ending process of industrial relations.

The purpose of industrial action is to cause the employer to reconsider their negotiating stance. The unregulated era of mass carpark meetings and workers taking strike action following a show of hands will never return, but every change in the law and regulations of industrial action gives trade unions opportunites, as well as restrictions. The late Bob Crow was adept at using announcements of RMT strike ballots to put political pressure on the bosses of the London Underground. The balloting requirements prior to industrial action have become a weapon in the hands of trade unions where the process of building for action is itself used to pressurize the employer.

One significant change in the new law is that ballot papers will now require a summary of the types of action, and the timetable when they will be acted upon. It will be unlawful to take action not listed on the ballot paper, but the dictates of good industrial relations must, for example, allow trade unions to respond to concessions and approaches from the employer to take less action than was on the ballot. In certain circumstances listing an extensive programme of action on the ballot may be used to demonstrate union strength to the employer right at the outset.

The effective life of industrial action ballots will also be time limited to 6 months (or 9 months with the agreement of the employer). It is not unusual in certain industrial disputes for the resolve of the workforce to stiffen once action has been engaged, the time limits may therefore change the tempo of industrial campaigns such that unions reballot to demonstrate strength of feeling to an employer during the course of a dispute. In any event, notwithstanding the inspirational historic examples such as the 1984 miners strike, the momentum of any industrial campaign that has lasted more than 6 months may be flagging, and such a campaign may profit from regroupment and reappraisal by the union, this is unlikely to damage many disputes.

The new legal thresholds for ballots require at least 50% of those entitled to vote returning a ballot, and a simple majority of those voting. For those engaged in important public services, there is an additional threshold that 40% of those entitled to vote must be in favour. These are certainly demanding targets.

Certainly many trade unions have their own rule book or policy requirements for a ballot threshold, but on principle this should be a question for the unions themselves, not for legal interference.

Where there is industrial action in individual workplaces, where there are shop stewards, and an engagement between the members and the union, then good turnouts over clearly defined issues are achievable. It is more difficult to achieve good turn outs in national disputes in the public sector, where there may be uneven density, and no union activists in some workplaces. But, if we are absolutely honest, in some instances in recent years, trade unions have engaged in national strike action with such low participation levels that it has been more of a demonstration of weakness than of strength to the employer.

The new balloting requirements will force a reappraisal, whether we want to or not. It may not be possible to conduct national public sector campaigns on the same basis anymore. But that does not mean that they cannot be conducted. While the decisions need to be made through each union, via their own democratic processes, and following their own appraisal of their strengths, there are still opportunites. For example, unions could vote for a financial levy by all members affected by a particular industrial issue, and then only selectively ballot for actual industrial action a few strategic workforces who have the capacity to deliver, and the industrial leverage to hit the employer.

Elsewhere, the new requirements for picketing will be unlikely to have much impact. While there are grounds for concern at the possible change regarding the use of agency workers, it should be borne in mind that the regulations currently outlawing the uses of agency staff are already breached on occasion, and the regulatory authorities take no action. It is correct to oppose any change of the law, but if it happens, then let us deal with that then. Agencies who provide strike breaking labour may find themselves the focus of the sort of leverage campaigns that would induce them to reconsider.

Whatever the legal frameworks, trade unions will adapt and evolve our tactics and continue to prosecute the best interests of our members. Employers who treat their workers with respect and dignity, and who pay a fair wage will have nothing to fear. For those employers who abuse, exploit and disrespect working people, then they can be assured that the changes in the law will provide them no protection.

Momentum becomes fit for purpose


It would be fair to say that the announcement of a new constitution for Momentum has caused some controversy. In summary, Momentum recently asked supporters their views in an online survey, accompanied by a message from Jeremy Corbyn.

The results of that survey have been used to justify a new constitution being announced. The constitution is here.

Along with this account of how the constitution was introduced:

The results of the survey sent to Momentum members show that there is a widespread consensus about the type of organisation members want – a grassroots, campaigning political movement that can help Labour win power on a transformative platform. 40.35% of members responded to the survey. Campaigning for Labour victories and helping members become more active in the Labour Party were the most popular options for Momentum’s priorities in 2017, chosen by 71.71% and 68.23% of respondents respectively.

80.60% of respondents said that key decisions should be taken by One Member One Vote, rather than by delegates at regional and national conferences and committees (12.50%). 79.29% of respondents said all members should have a say in electing their representatives, as opposed to national representatives being elected by delegates from local groups (16.16%).

Following this decisive response, the Steering Committee voted to introduce the constitution for Momentum to deliver the kind of action-focussed, campaigning, Labour-focussed organisation our members have said they want. The constitution puts decision making power in the hands of members with direct democracy and OMOV elections central to the organisation.

Momentum as an organisation was established originally to carry forwards the organizational and functional impetus behingd Jeremy Corbyn’s leadership election campaign. In particular, it has been felt by many people for a long time that the centre left needed an organized counterbalance to the pressure from Progress, and Labour First, two organizations of the centre right that have disproportionate influence in the Labour Party.

However, Momentum became bogged down in the usual and interminable arguments of the left, which have effectively prevented the organisation from operating. This had a very enervating effect, and parts of the left who have fetishised an alleged democratic deficit in Momentum have distracted attention away from the real scandals, the democratic deficits in society as a whole, and particularly in the Labour Party.

Momentum does not need to duplicate the functions of a political party. Momentum does not need to duplicate the functions of a trade union. What is needed is to have a structure on a broad left basis where supporters of the current trajectory of the Labour Party leadership can coordinate their efforts to good effect, on the basis of what we agree about. This gives the space for a new politics to develop.

I just joined Momentum, which I believe is now becoming serious and fit for purpose.

The other American election

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The recent elections in the Teamsters have produced a remarkable result, with Fred Zuckerman, the left candidate supported by Teamsters United, and Teamsters for a Democratic Union (TDU) actually winning the vote in the USA, but narrowly losing the overall vote once Canadian Teamsters are included.

Hoffa, the incumbent and son of his infamous father, received 100924 votes and Zuckerman received 94975, but taking into account only the US votes, Hoffa had 91403 to Zuckerman’s 92112.

Teamsters United swept to victory in Vice Presidential elections in the South and Central regions, based upon a more combative approach to trade unionism, and benefited from a previous No vote campaign by UPS workers against new contracts.

After the result, Zuckerman said:

We united members to save our union and rebuild Teamster Power—and we will continue our fight.

We built a coalition to unite Teamsters to win a better future—and this coalition is here to stay, because the problems we face are not going anywhere.

We united Teamsters to win strong contracts and defeat givebacks and concessions.

We united Teamsters to defend our pensions and benefits.

We united Teamsters to eradicate corruption because you cannot fight for the members when you are bought and paid for by the employers.

We united Teamsters to organize the unorganized because that is the only way to defend the standards in our core industries and to preserve our pensions and retirement security.

Employers and anti-worker politicians will continue to attack working Teamsters—and our coalition and movement will be there to fight back.

We will continue to unite Teamsters to fight for strong contracts, end corruption, defend our healthcare and pensions, and to take on union officials who stand with the employers, instead of the members.

We believe in coalitions and bringing union officers and members together and we will continue to do that. The election results show that many officers are badly out of touch. They need to start standing with their members or they will find themselves replaced by a new generation of Teamster leaders.

Buchanan on Trump

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While my politics are a million miles from Pat Buchanan on most issues, this extract from an article in American Conservative written before the election result, is a perceptive evaluation of Trumpism, and the appeal of Trump to the working class. It is the revolt against the establishment, but also against the liberalism which the centre wraps itself in.

Trump has made history and has forever changed American politics.

Though a novice in politics, he captured the Party of Lincoln with the largest turnout of primary voters ever, and he has inflicted wounds on the nation’s ruling class from which it may not soon recover.

Bush I and II, Mitt Romney, the neocons, and the GOP commentariat all denounced Trump as morally and temperamentally unfit. Yet, seven of eight Republicans are voting for Trump, and he drew the largest and most enthusiastic crowds of any GOP nominee.

Not only did he rout the Republican elites, he ash-canned their agenda and repudiated the wars into which they plunged the country.

Trump did not create the forces that propelled his candidacy. But he recognized them, tapped into them, and unleashed a gusher of nationalism and populism that will not soon dissipate.

[… ]How could the Republican establishment advance anew the trade and immigration policies that their base has so thunderously rejected?

How can the GOP establishment credibly claim to speak for a party that spent the last year cheering a candidate who repudiated the last two Republican presidents and the last two Republican nominees?

Do mainstream Republicans think that should Trump lose a Bush Restoration lies ahead? The dynasty is as dead as the Romanovs.

The media, whose reputation has sunk to Congressional depths, has also suffered a blow to its credibility.

Its hatred of Trump has been almost manic, and WikiLeaks revelations of the collusion between major media and Clintonites have convinced skeptics that the system is rigged and the referees of democracy are in the tank.

But it is the national establishment that has suffered most.

The Trump candidacy exposed what seems an unbridgeable gulf between this political class and the nation in whose name it purports to speak.

Consider the litany of horrors it has charged Trump with.

He said John McCain was no hero, that some Mexican illegals are “rapists.” He mocked a handicapped reporter. He called some women “pigs.” He wants a temporary ban to Muslim immigration. He fought with a Gold Star mother and father. He once engaged in “fat-shaming” a Miss Universe, calling her “Miss Piggy,” and telling her to stay out of Burger King. He allegedly made crude advances on a dozen women and starred in the “Access Hollywood” tape with Billy Bush.

While such “gaffes” are normally fatal for candidates, Trump’s followers stood by him through them all.

Why? asks an alarmed establishment. Why, in spite of all this, did Trump’s support endure? Why did the American people not react as they once would have? Why do these accusations not have the bite they once did?

Answer. We are another country now, an us-or-them country.

Middle America believes the establishment is not looking out for the nation but for retention of its power. And in attacking Trump it is not upholding some objective moral standard but seeking to destroy a leader who represents a grave threat to that power.

Trump’s followers see an American Spring as crucial, and they are not going to let past boorish behavior cause them to abandon the last best chance to preserve the country they grew up in.

These are the Middle American Radicals, the MARs of whom my late friend Sam Francis wrote.

They recoil from the future the elites have mapped out for them and, realizing the stakes, will overlook the faults and failings of a candidate who holds out the real promise of avoiding that future.

They believe Trump alone will secure the borders and rid us of a trade regime that has led to the loss of 70,000 factories and 5 million manufacturing jobs since NAFTA. They believe Trump is the best hope for keeping us out of the wars the Beltway think tanks are already planning for the sons of the “deplorables” to fight.

Todd Snider – Conservative Christian

On Facebook recently, there was a discussion about how the entertainment industry in the US has almost become a one party state for the Democrats, with the sole exception of the Country Music scene, where although there are some Democrats like Emmylou Harris, these tend to be artists outside the mainstream, and the prominent voices of Music Row Democrats tend to be record label executives not performers. This reveals a huge racial, social and class divide in US popular culture.

Paradoxically, among Nashville A-listers the only high profile Democrat is the flag waving Toby Keith. (worth watching Toby Keith’s “courtesy of the Red White and Blue“, to understand the mindset, if you are unfamiliar with it).

But from the fringes of East Nashville, enjoy Todd Snider

BA’s abuse of the visa system to push down wages

The recent protest by British Airways IT workers sought to draw attention to the abuse of Tier 2 visas. GMB is currently in dispute with British Airways about plans to outsource 800 UK IT jobs to the Indian firm Tata Consultancy Services (TCS). A number of British Airways IT functions are already run by TCS and GMB has previously called on the Home Affairs Select Committee to investigate TCS’s use of the UK visa system to replace UK workers.

There are around 800 skilled IT jobs at issue, with BA colleagues based at various locations in the UK, at BA Headquarters at Waterside in Harmondsworth, West London, BA’s call centre in Newcastle, and at other locations in Manchester, Cardiff and Scotland.

The IT support jobs are well paid and highly skilled, and the ploy by BA is to outsource to India, where people will do the same job for a fraction of the money. Offshoring of skilled jobs is of course a habitual problem across a number of employers and sectors, however, what is distinctive about this case is that the IT support work requires the physical presence of the support workers at the customer premises in the UK.

What is happening therefore, is that the Indian staff are being brought to the UK on Tier 2 visas to do the jobs of the workers who they have displaced.

Because India is not part of the European Economic Area (EEA) it is covered by a complex range of tiered visa arrangements. Tier 2 applies to migrants who have been offered a skilled job in the UK with a prospective employer prepared to sponsor them, and it includes a Resident Labour Market Test, which is a process that an employer must follow before employing a person who is not a resident of the UK to show that no resident worker could be found to do the job.

Following the advent of the Coalition government in 2010, the conditions for Tier 2 were ostensibly tightened, however, the nature of those affected by Tier 2 visas means that generally they are used by companies experiencing what economists would describe as “demand shock”, where key skills are unavailable. It is clearly both economically and socially advisable that key skill shortages can be filled. This means that even with tightened Tier 2 rules, the number of skilled workers coming to the UK has increased since 2010, and this should be generally welcomed as this involves filling roles that are necessary and for which no one local could be found, and it typically does not lead to any wage reductions.

The difference in this case is that there are UK workers who not only are available to do the work, they have already been doing it! The Resident Labour Market Test is specifically designed to prevent this situation, and it raises the question of whether TCS are breaking the law, and whether the Home Office are turning a blind eye. Where migrant workers substitute for native workers with the same skills but for lower wages, then this is clearly more profitable for the companies involved, but it is deskilling the UK economy, and means that the opportunities for well paid, skilled jobs are not available for people already resident in the UK in the future.

This is obviously a bit of a minefield for unions and the left, with the danger of being perceived as anti-immigrant. However, the issue here is of a company abusing the law to disadvantage working people in the pursuit of greater profits, and they should be stopped.