After ten months of parliamentary and extra-parliamentary struggle, the Trade Union Bill has now become the Trade Union Act following the gaining of Royal Assent last week. Thoughts must now turn to how unions and workers will defy, resist and subvert the new restrictions on strike activity and industrial action if they are not to become even more emasculated and enfeebled than they already are.
While various concessions were made by the government, none concerned giving way on the key issues around further restricting strikes and industrial action. Even the concession on using e-balloting is only the commitment to review the issue as opposed to having a trial of its use.
So to recap:
• All ballot mandates for strikes and industrial action must comprise a simple majority turnout of eligible balloted members. Previously, there was no minimum turnout threshold but simply a requirement that a majority voted for action. This is expected to make proposed large strikes in the public sector more difficult to organise;
• In essential public services (health, education, fire, transport, nuclear), there will also be the requirement that at least 40% of all those entitled to vote must also vote for action, meaning that non-voters are treated as 'no' voters. This is expected to make proposed large strikes in both the public and private sectors more difficult to organise. Both the new thresholds are due to come into effect by the end of 2016; and
• The validity of mandates for action will now be reduced to six months when previously there was no time limit, and the notice periods of action to employers has been increased from one week to two weeks. This means
Some groups of workers with high levels of union membership, strategic workplace leverage, occupational identity and heightened affinity to their union will seldom have to worry about meeting the new thresholds. Most other will though (including large swathes of public sector workers) given that very few of their recent ballots would have met the thresholds.
What are the options open to the affected unions?
The first is to strike selectively and smartly where unions only ballot members with high union density and the greatest leverage like revenue collection and just-in-time working systems. Whether these localised types of strikes will generate more or less pressure than a national strike remains to be seen.
The second is to surreptitiously give encourage and support to workers to take unballoted and unofficial action where no notice is given to the employer. A variation on this is that workers themselves decide to 'wildcat' regardless of what their unions think.
The third is that 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.
The fourth is that unions will end their traditional use of one-day strikes and take all-out indefinite action so that mandates will run out and employer counter-preparations will be less effective (especially as the ban on using agency workers to break strikes was dropped).
The fifth is targeting the upstream and downstream components of the employer. This means putting pressure through social media, corporate campaigns, industrial action and public protests upon the buyers and suppliers of the employer the union is in dispute with. The hope here is that they will then put pressure on the employer the union is in dispute with to settle on agreeable terms.
Sixth, and last, are the newly emerging forms of protests like flashmobs which can occupy buildings and block entrances to workplaces (as electricians, cleaners and cycle couriers in London have demonstrated over the last few years). Using concerned citizens who are not employed by the company in dispute, these are not striking pickets as such but rather acts of solidarity at key times (of essential deliveries, people starting work etc).
So they are an array of tactics open to unions over and above the open defiance of striking officially where the new thresholds have not been met. But it will mean unions thinking outside their comfort zones and boldly stepping into unchartered territory. Whether they will do so or not will be a key test of their mettle and ingenuity.