Yet again a planned strike was deemed illegal by a High Court judge in the UK. On Monday 17 May, Mr Justice McCombe ruled that Unite, the trade union which organises British Airways (BA) cabin crew, had failed to tell its 12,000 members about the 11 spoilt ballot papers in the last strike vote. This is a clear minor technicality, which in no way affected the overall outcome of the ballot. BA had made a new offer, which was overwhelmingly rejected by trade union members at the beginning of May. In a turnout of 71 per cent, the majority against the proposals was 81 per cent.
The judge, however, did not only rule on the basis of the law. He also made a general societal judgement in that he pronounced that the “balance of convenience” in his view required the granting of an injunction. It is not clear why a judge should be in the position to make such wider value judgements in the area of industrial relations in the first place. This pronouncement privileges the rights of consumers over the rights of workers, forgetting that people are workers in the first place in order to be then a consumer on the basis of their wages.
This was not the first incident of an injunction against strike action. A previously planned strike by BA cabin crew over Christmas 2009 had already been declared illegal on the basis of a balloting technicality. Moreover, a four-day national rail strike organised for the week after Easter had to be cancelled, after a court ruling granted the employer Network Rail an injunction due to alleged discrepancies in the ballot. Of course, the right to strike still exists in the UK. Nevertheless, considering the recent successful court challenges by employers on the basis of violations of the highly complex balloting procedures, in practice the right to strike has been severely undermined. While trade unions are put under ever more pressure in their attempts to prepare ballot procedures, employers across the country must feel emboldened by these court rulings and tempted to go down the same route.
What does the future hold for industrial relation in the UK in this situation? Clearly, industrial relations at BA are in a mess. BA may have won the court ruling, but the conflict with its workforce has not been settled. Ultimately, only open and fair negotiations with Unite will allow for this to happen. Unless BA is able to negotiate successfully, it will be ever more difficult to protect the brand name of BA and to retain its customers. BA may win against its workers, but it is likely to lose out in the ever tougher international competition within the aviation industry.
More generally, industrial relations in the UK are likely to become more adversarial again. Trade unions will have watched these court rulings with rising concerns. If strikes within the letters of the law are no longer possible, we may witness increasing incidents of wildcat strikes. Historically, the right to strike was not won in court rulings, but through concrete strike action by workers. It was these actions which forced employers and the state alike into accepting that strikes are a legitimate tool for trade unions. Workers may feel that it is again the time to reassert the right to strike through concrete actions rather than hoping for positive court rulings. It may be their only possibility to secure this fundamental human right.
Prof. Andreas Bieler
Professor of Political Economy
University of Nottingham/UK
Personal website: http://www.nottingham.ac.uk/~ldzab
19 May 2010