The greatest April fool’s joke in a long time was perpetrated last week by Network Rail. And in the process, liberty and democracy were struck down. Before midday at London’s High Court, Network Rail claimed the RMT signal workers’ ballot was deficient in a number of regards.
These irregularities included 11 signal boxes being balloted that had been closed for years, in 67 locations more votes were recorded than employees existed there, 26 workplaces failed to be balloted and 12 locations were balloted at which staff were ineligible to vote.
And what was worse, the judge Mrs Justice Sharp seemed to agree with Network Rail as she granted its application for an injunction to stop the strike.On the face of it you’d think that Network Rail had an unanswerable case.How could RMT be so stupid as to ballot workplaces that do not exist and so on?Indeed, this was the basis on which John Humphrys on Radio 4′s flagship Today Programme effectively then accused RMT of ballot-rigging.
But you only need to think about the logic here to begin to understand the patent nonsense that is being perpetuated.Why on Earth would RMT deliberately include non-existent signal boxes, so providing grounds for an injunction to stop the strike?Or was it that poor old RMT is such a slow and lumbering beast that its membership records are so hopelessly out of date?
No, there is something much more serious and malicious going on here, which gives substance to the accusation RMT made in a members’ circular on April 1.”We are concerned that Network Rail may have provided the High Court with false information … to convince the court of their case.”
The key is Network Rail’s use of the terms “signal box,” “location” and “workplace.” By law a union must give the employer the number, grade and location of members being balloted.But it is not signal boxes, locations or workplaces that are balloted. It is individual union members who are balloted at home through a postal ballot – because workplace ballots are no longer permitted. Thus, those 26 workplaces could not have been “excluded from the vote.” And if there were locations where there were “no RMT members” then they would not have been balloted, since only RMT members are balloted – and at home.
Added to this, it is almost impossible for Network Rail to determine whether there are RMT members at particular locations because members mostly pay their subs through direct debit and not check-off.
And RMT could not have balloted more members at 67 locations than there were employees because it can only ballot members who pay subs. It cannot ballot non-members.
So you can see why Network Rail stands accused of deliberately providing false information. One of the grounds the judge appears to have granted the injunction on was that these deficiencies in balloting materially affected the result of the ballot. That would be fair enough had the deficiencies actually existed. The law is framed to allow employers to stop strikes and, if they cannot stop them, to undermine them by compelling the union to give them advance notice so employers can prepare contingency measures.
But that’s not all. When making an application for an injunction, the employer just has to show that it has an arguable case where it would suffer disproportionate damage if the strike went ahead.
The reason why the threshold is so low is that the injunction is a temporary, and not permanent, order. The parties can come back to court at a later date for a full hearing. Of course employers never do, so as to get what they want – the strike struck down.
As if to add insult to injury, the judge decided that RMT would be unlikely at a later full hearing to establish a statutory defence and so permission to appeal her decision was denied.Moreover, the judge has now added further weight to the legal precedent set by Mrs Justice Cox in granting BA’s injunction application last December.Now, applications can be granted where the strike can be shown to have a disproportionate impact on the travelling public.This has no basis in law – indeed, not even the Tory framers of the law were so bold as to try to include this criterion.
What this means is that strikes can be struck down because they would be effective strikes. But the only effective type of strike is one that does cause disruption to the employer, precisely because this provides leverage. The perverse decision against RMT is one that could lead to the banning of effective strikes.
Gregor Gall is professor of industrial relations at the University of Hertfordshire.
From the Morning Star