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Wildcat action and the law

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On Tuesday Portsmouth postal workers spontaneously walked out of their morning shift in protest over the sacking of a colleague who had been sacked for refusing to do extra work after his shift had finished. They demanded that management reviewed its practices and returned to work once their managers agreed to do this. As both the employer and the workers’ union, the CWU, were at great pains to stress this action was unofficial and was taken without the support of the union and its officials. What the postal workers actually demonstrated is that not only can unofficial action work but it is the best way of getting around the State’s anti union laws and the cowardice of union leaderships refusal to support action in defiance of them. Given the general confusion over legal controls on unofficial action it is worth examining what the law actually is and why unofficial action can be taken without the workers involved incurring any special legal penalties.

Illegal

The mass media, employers, politicians and even trade union militants often refer to unofficial strikes as illegal. This suggests that such strikes are contrary to the criminal law and therefore workers taking unofficial action can be prosecuted or at least subject to individual legal penalties. In fact, outside of the context of the last two world wars, unofficial strikes have not been illegal for more than 100 years, and workers participating in them have generally not been in a different legal position to the one they are in when they take official action. Essentially, workers can have their pay docked irrespective of whether industrial action is official or unofficial. Similarly, whether a strike is official or unofficial makes no difference to the fact that judges are unable to give employers injunctions, that is, court orders, which force strikers to return to work or face fines and/or imprisonment for contempt of court.

The one difference between official and unofficial action is in the context of dismissals. As a result of slight improvements that the last Labour Government made to the anti union laws (which they largely left intact despite their being declared to be in violation of international law by the International Labour Organisation) workers taking official action will be unfairly dismissed for taking official action, although generally this protection ends if the action lasts for more than eight weeks. Unofficial strikers lose all unfair dismissal rights, and, therefore, if their employer sees this as viable can be victimised through selective dismissals. However, the technical legal definition of unofficial action is different to how the term is commonly understood.

Changes to Thatcher’s anti union laws made by the Major Government impose extremely complex balloting procedures that trade unions must follow before industrial action can be lawfully taken. If the ballot is defective then the union must repudiate industrial action, that is, instruct its members not to take it, or face legal action by an employer. However, unfair dismissal law prevents any selective dismissal of unofficial strikers until one working day has passed since the date of repudiation by the union. This is equally the case where there has been no ballot at all because workers have voted by a show of hands to strike or have spontaneously walked out. Where such action is short, as was the case with walk out by the Portsmouth postal workers, the union has no opportunity to repudiate the action and therefore the only course of action open to the employer is to dismiss all workers who take the action. This can happen as was the case in the mid 1990s when Eastern National sacked all its bus workers in Chelmsford (where I used to live and was secretary of the Trades Council) who went on strike for one shift. However, typically, employers will not regard it as a viable to sack the whole workforce unless it is small and/or unskilled and therefore easy to replace.

Therefore, although unofficial action is particularly hated by both employers and the State because it is outside of the framework of union structures and control, such action is the best way to get round the anti union laws which seek to prevent strikes from taking place until the employers have had several months to prepare ways to defeat them. Moreover, given the current preference of union bureaucracies for one day strikes as a form of protest, short sudden unofficial strikes are much more effective as again we see with the action by the Portsmouth postal workers.

Court Action

By way of contrast, UCU called off an official strike in Further Education colleges last week as a result of court action by the employers. Had UCU members in FE defied the UCU leadership and taken unofficial action then I don’t think there could have been anything college managements could have done. Teachers who struck would have lost pay but then that would have also been the case had the strike remained official. Effectively, in this common place situation where union leaders insist on obeying the law they are, whatever their intentions, objectively acting as the agents of the bosses and the State by policing their members and preventing industrial action from taking place.

Union leaders, along with bosses and the State, lead workers to believe that unofficial action is illegal and therefore particularly invidious. In fact, it should be seen as the best and safest course of action to respond quickly to an employer’s attacks on workers’ conditions or rights, and it is action which can be taken directly by workers without waiting for their union to act where, in practice, this delays the taking of industrial action by several months. Typically, such action is defeated before it even starts.

Warning

A word of warning – steps should be taken to keep secret the identity of militants who organise unofficial action. The law distinguishes between organisers of unofficial action and those workers who take it so that the former may be subject to individual victimisation through being sacked. I recall that, on the tube, militants used to wear masks or balaclavas at mass meetings called to vote on unofficial action. Arguably, where a walk out is genuinely spontaneous there are no organisers, and it remains the case that the employer must dismiss everyone or no-one.

If the Tories win the election they are planning to make the balloting laws even more draconian by requiring a union to have a majority of members it proposes to call out on strike voting in favour. At present and in accordance with democratic norms unions only need a majority of those members who actually vote. I am unaware of any current proposals to change the law re unofficial strikes and I doubt even the Tories will go back to the nineteenth century by enabling employers to get injunctions to force workers back to work. They could change the law to give union repudiation retrospective effect to allow victimisation of individual unofficial strikers, but this could be double edged by weakening union authority over their members.

So, all trade unionists should take heart from and follow the example of the successful short unofficial strike action taken by postal workers in Portsmouth. If official action is sustained and properly supported by a trade union so that a victory is feasible then that is obviously good. But where official action is symbolic and often quickly called off by unions, as has happened with public sector strikes in recent years, then generally it achieves nothing. To reiterate, as we have seen in Portsmouth, short unofficial action organised at rank and file level can both get around the anti union laws and deliver employers with the short sharp shock necessary to bring them to heel.

This is the first of two articles by Roger opening up a discussion on the practicalities of organising unofficial action. The second can be found here. Neither article should be taken as the last word on the subject and activists should seek advice from fellow reps and other sources before embarking on unofficial industrial action, which does carry risks of dismissal and disciplinary action if anything should go wrong.

This article originally appeared on the Portsmouth Socialist Network blog. You can also find them on Facebook.