The case of the phantom signal boxes – Network Rail propaganda and the balloting regulations

The injunction against the RMT in relation to its strike action on Network Rail was supposedly based on ‘irregularities’ in the ballot.

According to the Guardian:

The rail operator (Network Rail) argued that the closeness of the vote meant that the votes of just 112 of 4,556 signallers balloted could have changed the result. The company presented a string of alleged irregularities including 11 “phantom” signal boxes that should not have featured in the ballot.”

In addition 23 workplaces were supposedly “excluded from the vote”, 12 were “included where there are no RMT members”, and at 67 locations the RMT “balloted more members than there are employees”.

In fact this has little purchase on reality. Network Rail is being disingenuous. Firstly, workplaces cannot be “excluded from the vote” since the ballot is of individual union members, with postal ballots sent to their home addresses.

If indeed there are locations where there are “no RMT members” then they would not have been balloted. How Network Rail could determine there were no RMT members at a particular location is a mystery since a large proportion of members pay their membership subscription by Direct Debit. They will not be shown as RMT members on Network Rail’s database as their subscription is not paid out of their wages. Network Rail does not know which of their staff pay a Direct Debit to the RMT.

The assertion that the RMT balloted more members at 67 locations than there are employees is absurd. They can only ballot members who pay subscriptions. They cannot ballot ghost members, or people who are non-members.

Signal boxes or any other work locations are of no relevance to the conduct of the ballot at all. They cannot have any influence on the outcome of the ballot since the RMT balloted its members on the basis only that they work for Network Rail and are in the relevant grades of members.

Information with no practical bearing on the ballot outcome

Under the law a union must employ a ballot service and independent scrutineer. If they send postal ballots to the home addresses of members, provided by the union, then what, you may wonder, is the relevance of all this talk of workplace locations?

Compulsory postal balloting was introduced by the Trade Union Rights and Reform Act of 1993. A union had to tell the employee what employees it was balloting: “…(so that he can readily ascertain them) the employees of the employer who the union intends to induce or has induced to take part, or continue to take part, in the industrial action.” This meant providing a list of employees being balloted.

A trade union had to provide information to enable the employer to ‘make plans’; that is plans to try to undermine strike action. The aim of this was to provide the employer with the information enabling them to work out who would be coming into work and thus help them to prepare to put in place a strike-breaking workforce. Yes, a trade union has to provide information designed to help the employer defeat a strike.

New Labour’s “Fairness at Work” legislation, the 1999 Employment Relations Act, amended 1992 legislation such that a union had to give notice to an employer, “containing such information in the union’s possession as would help the employer to make plans and bring information to the attention of those of his employees”. It dispensed with the need for a union to give the names of individuals to be balloted. The unions considered this a gain since they did not necessarily want to have to give management a list of all their members. However, there was a sting in the tail. The new legislation now obliged a union to provide a list of the grades/categories, the workplaces, and the number of grades in each and every workplace.

The 2004 Employments Rights Act said this list “must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time”. It is, of course, a nightmare to keep accurate and updated information on such detail as this because members are always coming and going, changing jobs, moving to different work locations and so on.

So New Labour’s legislation actually worsened the situation by obliging unions to give this data in ‘matrix’ form. If all the members are paying their subs by check-off they are allowed to provide a list of these, which is obviously simpler. But these days membership dues are paid by a mixture of check off and direct debit, which complicates the situation. A union can give both forms of information but this would make the compiling of accurate information even more complex.

No database is ever completely up to date and accurate. Any union is dependent on members informing them of a change of workplace, change of grade (they might be promoted outside of a grade being balloted), or change of address. It is very common for members to forget to do this, or not to bother, even when they are asked to do so by a union.

If balloting law was not weighted in favour of the employer then it would be sufficient for a union to tell an employer of the grades of employee it was balloting. In practical terms Network Rail knows exactly who is being balloted because it knows that signallers and supervisory grades were balloted.

In any ballot there will always be some union members who don’t get a ballot because the union has an old address for them, or their Direct Debit has lapsed. Some who should not receive a ballot will; they might not have informed the union they have left the job, or been promoted out of the grade, or their direct debit might not have been ended when they left the company. This is what happens in real life.

As accurate as is reasonably practicable”

As experience has shown the provision of information prior to a ballot, in such detail as specified, has presented a major problem to trades unions. The 2004 Employment Relations Act said that “The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).”

Yet judges appear to be ignoring this caveat and making judgements based on the provision of information which has no impact on the outcome of the ballot. For instance the judgement in relation to British Airways ignored the fact that the numbers of people who received a ballot who were being made redundant, could not possibly have overturned the majority for strike action. Even worse, the judgement deemed the proposed 12 day strike to be ‘disproportionate’, when the judges were supposed to be determining only whether the balloting regulations had been followed.

Balloting law is undemocratic. It undermines the decision making powers of union members. Specifically, the provision of information to an employer is now the biggest obstacle to strike action, as employers have seen how successful companies have been in winning injunctions on the basis of information deemed to be “as accurate as reasonably practicable”.

Notwithstanding the campaign of the unions against anti-union legislation overall, there is surely, in the light of these events an urgent need for a campaign to amend the existing law, such that trades unions should only have to give notice to employers of the grades/categories of their members being balloted.

As the law stands currently a union can be found to be in breach of the law even if the information provided to the employer will have no material impact on the outcome of the ballot.

Martin Wicks

April 3rd 2010