Solidarity Magazine » TUC Fri, 01 Mar 2013 19:29:19 +0000 en-US hourly 1 Public Service Pensions – myth and reality Thu, 30 Jun 2011 20:37:45 +0000 Continue reading ]]> 30th June 2011

Alice Hood TUC

Today seems like a good day to debunk some public service pension myths…

Myth 1: Public service pensions are gold-plated

The Commission firmly rejected the claim that current public service pensions are ‘gold plated.’
Final Hutton Report (p26).

Half of public sector pensions in payment are less than £5,600 a year. In local government half of pensioners get less than £3,000.

A YouGov poll of 2,500 people in February 2011 asked what the average public sector pension should be. The average across all responses was £17,088. Forty-four per cent said it should be more than £15,000. Almost half (49%) of respondents believed the average public sector pension is more than £10,000, and only 23% believe it is less than £10,000.

To see some solid gold pensions, take a look at some of the top private sector boardroom pensions. The TUC’s annual PensionsWatch survey looks at the pensions of top directors in the UK’s biggest companies. Last year’s study found that the top directors had pension pots that would pay out an average of almost £300,000 per year. Directors in the private sector often have separate, more generous pension arrangements than their staff. In the public sector senior managers are in the same schemes as the rest of the workforce.

Myth 2: Public service pensions are unreformed

Two major changes have been made to public sector pensions – one by negotiation and one imposed by the Government. Together they reduced the value of public service pensions by around 25 per cent even before the current negotiations started.

Negotiations with the previous Labour government led to changes to the public service pension schemes that reduced the value of pensions to members by around 10 per cent, according to the interim Hutton report (page 9), and the future costs by around 14% according to the National Audit Office (p.5). Changes included increasing the normal pension age for new members in most of the schemes (and for all members in local government), and in the civil service a new ‘career average’ pension scheme was set up. An important part of the package of changes was ‘cap and share’ arrangements.  These meant that the cost of unexpected increases in life expectancy would only be borne by employers up to a certain cap. After this cap, members would bear the full cost of future increases. Back in 2009 the Treasury estimated that cap and share would save £1 billion a year through increased  contributions from next year onwards.

In June 2010 the Chancellor announced without warning that public service pensions would be uprated according to the Consumer Prices Index (CPI) rather than the Retail Prices Index (RPI). The switch to linking the indexation of pensions in payment to the CPI measure reduces the value of pensions by a further 15%. A number of unions are currently taking legal action to challenge the decision to cut the value of pensions in this way.

Myth 3: Public sector pensions are unsustainable

How best to measure the costs of commitments that go a long way into the future is controversial. Those who want to claim public sector pensions are unsustainable try to express all these future commitments as if they were a bill that had to be paid today. This produces some scary numbers but is a completely inappropriate measure given the long term nature of pensions.

The NAO and the Hutton Commission both rejected this approach and said that the test of the long term affordability of public sector pensions is what proportion of GDP future payments will require.

The NAO found that even before the switch to CPI indexation the cost was sustainable:

Government projections suggest that the 2007-08 changes are likely to reduce costs to taxpayers of the pension schemes by £67 billion over 50 years, with costs stabilising at around 1% of Gross Domestic Product (GDP) or 2% of public expenditure. This would be a significant achievement.

Public Accounts Committee, The impact of the 2007-8 changes to public service pensions

Once CPI indexation is taken into account the proportion falls clearly. The Hutton report (chart 1.B) shows that the central projection of future costs (before any further changes) falls from 1.9% of GDP to 1.4% by 2060.

Myth 4: The government is protecting the low-paid

In Danny Alexander’s speech on 17 June, he said that the government was proposing to limit the contribution increase to those earning more than £15,000, and to cap the increase paid by those on £15,000 to £18,000 a year at 1.5%. So the Government argues that according to their proposals only those earning over £18,000 will bear the full brunt of the increase and those earning under £15,000 won’t pay any of the increase. But in the briefing issued ahead of the the speech is was clear that these figures were based on ‘full time equivalent’ salaries.

The ‘full time equivalent’ point is important because many low-paid staff in the public sector would earn over the £15,000 threshold if they worked full time, but they have low take home pay because they work part-time. So someone who works in a job which if full-time meant they would earn £16,000 a year, but actually works half-time and thus earns £8,000 will not be protected from the increase. We estimate that this could affect over a million part time workers, the vast majority of them women. Nicola and Channel 4’s Fact Check both have more on this

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After the cuts protest, what next? Tue, 29 Mar 2011 16:02:27 +0000 Continue reading ]]> The huge turnout of protesters means the TUC is burdened with great expectations; now unions must push the cuts campaign on

Gregor Gall

The TUC and the union movement must be delighted that Saturday’s march mobilised between 250,000 and 500,000 people against the cuts. They must be delighted that much of society was represented there – from union members to students, pensioners and social justice campaigners.

If the attendance had been anything less than the 100,000, the TUC had predicted, the headache the union movement would have woken up to on Sunday morning would have been one of the demonstration being probably the end of the campaign against the cuts, rather than its continuation.

But the massive turnout – way more than what most people thought possible – gives the TUC and unions another kind of headache. This is the headache of great expectations. Both first-timers and veterans of demonstrations will be asking two crucial questions: “If we can pull this off, what else can we do?”, and “How can we build on the momentum we’ve just created?”. The government has already laid down this challenge in another way by saying it will simply ignore the scale of the turnout.

Calling for more marches, whether in London or the provinces, is not enough on its own. More demonstrations when there is not much of an actual fight going on usually leads to declining turnouts and disillusionment. But if demonstrations are called to allow the expression of active, widespread resistance and opposition then the situation is quite different.

So the sixty-four million dollar question is not so much whether the will exists among the marchers to continue the fight in their workplaces and communities, it is whether the unions and their allies can organise people into effective forms of action to change the government’s behaviour.

The action will have to be physical – strikes, occupations, blockades and other forms of civil disobedience that bring society and the economy to a halt. This does not necessarily mean taking a leaf out of the book of our southern European cousins and calling a general strike.

It does mean that the union movement has to do more than assume that pensions are the most likely issue to bring about co-ordinated strike action.

While such action would be a boost to the fight against the cuts – given that it would be the first significant piece of united action and would involve a million workers – it would nonetheless be far from sufficient to build a wider and broader resistance movement.

This is because it would not unite the producers and users of public services in an active alliance. The government would be quick to point out producers were striking for their own vested, sectional interest. And if the government felt it was on the back foot, it could offer concessions to defuse the pension row.

The kind of action that could unite producers and users of public services is action that defends jobs, and thus also services. So far 170,000 jobs in local government are under threat and 26,000 have already been cut but there have only been a tiny handful of industrial action ballots to stop these and no strikes so far.

When Brendan Barber and the leaders of Unite, Unison and the GMB next speak, they must focus on how to organise the fight over this sort of issue. Encouraging people to vote Labour in the elections of 5 May 2011 is at best a distraction to this task.

If these union leaders do not want to be accused of being cowards and backsliders they will have to up their game. This necessarily means taking a lead and encouraging such action by going to workplaces and communities rather than just saying “We will support those that want to take action”. The unions have created either a rod for their own backs or stick to beat the government with.

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250,000 or more on TUC demonstration Sat, 26 Mar 2011 18:12:15 +0000 An estimated 250,000 or more people attended today’s demonstration.

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ACT NOW to save Iranian trade unionist Mansour Osanloo Tue, 15 Feb 2011 19:01:33 +0000 Continue reading ]]> As Iranian people demonstrate for freedom on the streets of Iran’s major cities, the TUC is joining Amnesty International to protest about the situation facing Iranian bus workers’ leader Mansour Osanloo, who is now in hospital with heart problems, shackled hand and foot to his bed. We are calling for his freedom and for his health.

Amnesty International and the TUC want people to take action to demand that the Iranian regime:

  • immediately and unconditionally release Mansour Ossanloo;
  • pending his release, ensure that Mansour Ossanloo has immediate access to his lawyers, family and medical treatment;
  • allow Sherkat-e Vahed, Mansour’s union, to continue in their legal activities without further harassment;
  • free all others jailed for legitimate trade union activities; and
  • ensure that Iran respects the workers and union rights which it has pledged to uphold.

Mansour Osanloo, the Iranian trade union leader unjustly imprisoned for the last four years, has been taken to an outside hospital after suffering chest pains this weekend that could have been caused by a heart attack.

Some time on Sunday he was transferred from Rajai Shahr Prison to a hospital where he is reportedly shackled to his bed by metal cuffs on hands and feet. Over preceding days contact with his family has been restricted and access to the open air has been limited. Amnesty International is ‘deeply concerned about his health and the continuing poor conditions he is experiencing in prison.’ He had been repeatedly denied medical leave from Rajai Shahr Prison, contrary to recommendations of the prison doctor.

In July 2007 Mansour Osanloo, now aged 50, president of the ITF-affiliated Vahed Syndicate (Tehran Bus Workers’ Union) was dragged from a Tehran bus by men who only later were identified as Iranian security forces. Three months later he was sentenced to five years imprisonment on charges of ‘acting against national security’ and ‘propaganda against the state’; in 2010 another year was added to his sentence. In reality his only ‘crime’ has been to help found a genuinely democratic trade union for his fellow bus drivers.

Union reaction

Mansour Osanloo’s bus workers’ union in Tehran is affiliated to the International Transport Workers Federation (ITF).

ITF general secretary David Cockroft stated: ‘Frankly, I believe that if he hadn’t had his life threatened, been beaten, arrested, re-arrested and held for years in awful Iranian prisons, he would today be a well man.’

‘His maltreatment is part of a campaign to crush his voice and that of his trade union, the Vahed Syndicate. The blame for it lies with the government of Iran, a government that is today letting loose its so-called security forces against protesters in cities across the country.’

He concluded: ‘Hasn’t that government learnt from the experience of its neighbours: that no one is too powerful to be held to account, and that injustice – such as has been meted out to Mansour Osanloo – cannot be sustained indefinitely?’

Union rights in Iran

Mansour Osanloo is just one of the many trade unionists imprisoned and harassed in Iran. Details of the situation facing Iran’s independent trade unions is on the Justice for Iranian Workers website.

And the Iranian entry in the International Trade Union Confederation (ITUC) annual report on trade union rights around the world is on the ITUC website.

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TUC statement on the union industrial response to government spending cuts Fri, 28 Jan 2011 17:05:21 +0000 Continue reading ]]> We await reports from inside today’s TUC meeting. Below is the response of Brendan Barber. Fearing the discussion on “coordinated industrial action” Brendan had a rabbit in his hat. It appears that the government has agreed not to implement pension changes in the March budget. It’s difficult to see this as anything other than a manoeuvre designed to undermine the possibility of strike action which was being discussed by the NUT, PCS and UCU.

Mind you, they haven’t “ruled out strike action”. Speaking outside TUC headquarters Barber told the BBC that the unions had agreed to work more closely together to fight the cuts “including – as a last resort – in some circumstances potentially, industrial action”.

Dave Prentis has just assured everybody on Radio 4 that any action taken won’t be political.

(Martin Wicks)

Speaking after a special TUC meeting called today (Friday) to discuss the union industrial response to the effects of government spending cuts, TUC General Secretary Brendan Barber said:

The government’s agenda is doing huge damage to the economy and vital public services. The TUC is mounting a wide campaign against these mistaken policies.

But today’s meeting was to consider the appropriate industrial response to the volatile cocktail of issues that face union members across the public sector – the pay freeze, job cuts and attacks on pensions.

No-one is talking about a general strike, but of course these attacks on our members could well give rise to industrial action around specific disputes.

Today’s meeting showed a clear determination for unions to work together on industrial issues including, as a last resort, industrial action when members support it.

The TUC will step up its work co-ordinating the industrial work of unions. There will be monthly meetings of all the TUC’s public sector unions in the Public Services Liaison Group, and the TUC’s General Council will consider at each of its meetings a report of what is happening across the whole economy.

As a result of discussions with the Chancellor and other ministers, the government has agreed to central talks on the future of public service pensions. Ministers have now accepted that they will not force through changes in the March budget.

These will be difficult negotiations as public service workers will not allow their pensions to be hammered. We hope that the talks can make progress, but we cannot rule out industrial action taking place on this issue.

The TUC will continue its campaign against the deep and rapid spending cuts. Polls show that public opinion is shifting, and people understand just how unfair and damaging these cuts will prove to public services, jobs and the wider economy.

The demonstration on 26 March will be a huge event at which the British people will come together to show their opposition to the government’s chosen course.”

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Hundreds to lobby TUC leaders, demanding national demo against Con-Dem cuts Tue, 07 Sep 2010 17:29:38 +0000 Continue reading ]]> Hundreds of angry union members from across Britain will gather in Manchester this Sunday (12 September) for a vocal lobby of TUC leaders on the eve of their annual Congress. The lobby, called by the National Shop Stewards Network (NSSN)*, will demand that the TUC “get off its knees” and name the day for a national demonstration against the Coalition government’s assault on the public sector and its workforce.

Elsewhere in Europe unions have mounted mass demonstrations, strikes, and in the case of Greece and Spain general strikes, in response to the austerity offensive launched by governments out to make working people pay for an economic crisis fuelled by bankers on seven figure bonuses.

In sharp contrast the TUC’s General Council, the leadership of more than seven million union members, has hardly uttered a peep of protest, even inviting the likes of David Cameron and Vince Cable to address the Congress. “In 100 days of the Con-Dem Coalition we have seen swingeing cuts of 25% across the public sector. Come October these could be ratcheted up to 40%. The TUC must break its shameful silence”, said Dave Chapple, a Bristol postman and CWU steward, who chairs the NSSN.

The NSSN has backed Congress resolutions from the PCS and RMT calling on the TUC to name the day for a united national trade union demonstration, inviting community campaigns, students, young people and pensioners to join in a mass protest against Chancellor George Osborne’s 20 October Comprehensive Sending Review. NSSN co-chair Rob Williams, a Swansea-based engineering worker and Unite convenor, stressed, “The General Council, and particularly those representing public sector unionists in the firing line, must channel workers’ anger in the face of a staggering million job cuts! Now is the time to come out fighting.”

With funding from dozens of union branches and Trades Councils, the NSSN has mobilised trades unionists from as far away as the South West, who will be travelling by coach and mini-bus to join the lobby from 12 noon onwards. The lobby will feature trade unionists from current disputes on the London Underground and the capital’s fire service, and will be followed by a short march through downtown Manchester to a rally at the city’s Mechanics Institute from 2.00 – 3.30 PM.

Whatever emerges from the TUC, the NSSN’s National Steering Committee will meet on 2 October to discuss the next steps in building the resistance to the Con-Dems’ cuts agenda.


For further information contact:

Bob Archer (Press Officer) 020 8522 1156

Linda Taaffe (Secretary) 07952 283 558

Dave Chapple (Chair) 07780 568 782

* Launched in 2006, the NSSN is a cross-union body of elected activists, supported by several national unions including the Public & Commercial Services (PCS), Rail, Maritime & Transport Workers Union (RMT), Communication Workers’ Union (CWU), Prison Officers Association (POA) and the National Union of Mineworkers (NUM).

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RMT motion at TUC calls for coordinated strike action, national demonstration and link up with community groups in fight against the cuts Mon, 02 Aug 2010 18:34:54 +0000 Continue reading ]]> Publication Date: August 2 2010

TRANSPORT UNION RMT has tabled a motion for the TUC Congress in Manchester in September which sets out a blueprint for a co-ordinated trade union and community fight back against the cuts programme and the “class warfare” of the ConDem Government.

The RMT motion calls on the trade union movement to;

· Call an immediate summit of affiliates to discuss the sole issue of how we can best coordinate industrial action to defend jobs, pensions and conditions

· Consider convening a urgent conference of affiliates and representatives of users of publicly funded services and the welfare state to establish a broad alliance against the cuts

· Organise an urgent national demonstration, lobby of Parliament and national days of protest against the cuts and fully involve trades councils in moblising for these events.

· Present a clear alternative to the cuts including public ownership, higher rates of tax for the rich, closing corporate tax loopholes and scrapping Trident replacement.

RMT General Secretary Bob Crow said:

The TUC has to be the launch-pad for the fight back against the coalition Government’s decision to unleash all out class warfare through their unprecedented attack on our communities, public services, welfare state and transport system. Our defence must be built on generalised strike action and community resistance in the biggest public mobilisation since the anti-poll tax movement.

RMT is in no doubt that the government is using the deficit as a thinly veiled cover to engage in an ideological dismantling of the state and an attack on workers, and the most vulnerable in our society, which goes far further than even the dark days of Thatcher.

As well as setting out plans for our own coordinated industrial and community action we also send a message of solidarity to our comrades in Greece, Ireland, Portugal, Spain and elsewhere who are fighting similar cuts to jobs, standards of living and public services.”

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Call on TUC to scrap Cameron invite Thu, 08 Jul 2010 10:38:08 +0000 Continue reading ]]> The following motion was passed unanimously at last night’s meeting of the Bristol and District Amal. Branch Central Committee.

The general policy-ie. not specific to the CWU Executive Council-was overwhelmingly passed at Saturday’s South West TUC Regional Council, in a motion moved by the RMT and seconded by Bridgwater TUC. Please see the text of this after the CWU Bristol motion below.

In your trade union branch, could you use the terms and format of either motion to help us get this invitation withdrawn?


Dave Chapple

Bristol and District Amalgamated CWU motion:

“This Central Committee supports the motion overwhelmingly passed at the meeting of the South West Region TUC on 3rd July, which calls upon the TUC General Council to rescind its recent decision to invite David Cameron to this year’s TUC Congress.

We resolve to write to the CWU President and General Secretary, calling upon the CWU National Executive Council to rescind any endorsement of the decision of the CWU TUC General Council representative(s) to support the decision to invite David Cameron.

If the NEC hasn’t yet discussed this subject, then we ask that the decision of the TUC General Council representative(s) be NOT endorsed.

Further, that the CWU writes to the TUC General Secretary, asking that the General Council decision be re-considered as a matter of urgency.”

South West Region TUC motion:

“The South West Region TUC deplores the recent decision of the TUC general Council to invite David Cameron to address TUC Congress 2010, and asks the General Council, in the urgent interests of trade union unity against this government’s austerity measures, to reverse this invitation.”

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RMT's Bob Crow calls for emergency meeting of Trade Union Congress to plan co-ordinated action against Government attacks on jobs, pay and pensions Tue, 22 Jun 2010 14:25:24 +0000 Continue reading ]]>

TRANSPORT UNION leader Bob Crow today issued a call for an emergency meeting of the Trade Union Congress to be convened as “soon as is practically possible” to map out a co-ordinated campaign of industrial and political action to fightback against plans to attack jobs, pay and pensions that will be unveiled in the emergency budget on tuesday.

RMT has also reacted angrily to reports that David Cameron will be invited to address the TUC in September with Bob Crow warning that his union “will lead a walk out of delegates that would leave the Prime Minister with an empty hall to talk to. ”

Bob Crow, RMT General Secretary, said today:

“This weekend David Cameron has launched a full-frontal assault on the trade union movement on a scale which is unprecedented since Margaret Thatcher’s Government set out to smash the National Union of Mineworkers.

It could not be clearer that the ConDem administration are setting out to drive down pay, working conditions and pensions. When someone’s winding up to give you a kicking you have a clear choice – you can either take them on right from the off or you can roll over and hope that they go away. RMT is calling on the trade union movement to start the fight back right here, right now before Cameron and Clegg have had a chance to pull their boots on.

This is not the time for talking, it’s the time for action. We need an emergency meeting of the Trade Union Congress to co-ordinate the political and industrial action that we will need to take to take as a united movement to drive back the ConDem attack on our members.”

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The right to strike under threat – a European Taff Vale? Mon, 26 Apr 2010 15:36:55 +0000 Continue reading ]]> SOLIDARITY Editor Martin Wicks examines the implications of two recent injunctions against strike action by UNITE and the RMT. This is a SOLIDARITY discussion bulletin which can be downloaded here db1210410.

The recent injunctions issued against strike action by UNITE and the RMT have grave implications for the whole trade union movement. They place a question mark over the right to strike. There were two main parts to these judgements: ‘irregularities’ in the balloting process and a new concept of ‘proportionality’ (which has no precedent in UK law) based on European Union law and judgements by the European Court of Justice (ECJ) relating to the Laval and Viking cases.

Postal ballots

One of the changes in employment law which Thatcher introduced in 1993 was the obligation to carry out a postal ballot for industrial action, to render it legal. Under this legislation the unions had to provide to the employer a list of members they were balloting, in order that they (the employer) could ‘prepare for strike action’. Whilst a union might not necessarily want to give an employer a list of members, check­off (or paybill deduction of union subs) was the most common means of paying them. It was a simple process. A union had to hand over a list of names and NI numbers.

When New Labour came to power in 1997 they amended the balloting regulations. Most unions considered the ending of the obligation to provide the names of their members to an employer as a gain. However, in its place a union had to provide a list of grades and numbers being balloted, as well as workplace locations with the numbers of staff in each grade at each location. This was a real sting in the tail. New Labour’s amendment of employment law has worsened the situation and opened unions to the increasing threat of injunctions to prevent strike action because of balloting ‘irregularities’.

If your membership is on check­off (paying subs from their wages) then a union can simply provide a list of members and NI numbers. Today, however, it is more common for unions to offer the choice for their members to pay either by check­off or by Direct Debit. These means there is more scope for ‘irregularities’.

In the recent case of UNITE at British Airways, the injunction was issued, in part because they had balloted members who had been made redundant. The regulations say that only those who qualify to be balloted should be.

Redundant staff do not. However, the judgement did not take any account of the fact that the numbers involved could not have had any material impact on the outcome of the ballot since over 90% of staff voted for strike action.

Section 232B of the 1992 Trade Union & Labour Relations (Consolidation) Act says that when a union makes “accidental mistakes” in terms of those who are balloted, on a scale unlikely to affect the outcome, this will not invalidate the procedure.

In the case of the RMT, the injunction, again, was in part issued because of ‘irregularities’ in balloting. Network Rail said that because the RMT had provided inaccurate information on workplaces and grade numbers then people had been balloted who should not have been. Since the ballot result was close there was more scope for Network Rail to suggest that ‘irregularities’ could have produced a No vote.

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”. This was patently absurd. The inaccurate information could have no bearing on the outcome of the ballot since the union balloted members at their home addresses. It cannot ballot people who aren’t members. Moreover, Network Rail does not know which of their staff pay union subs by Direct Debit, so how it could have known there were ‘no RMT members’ at 12 locations is a mystery.

Hence, whatever the motivation behind the change in the balloting regulations they have made it more difficult to take strike action without falling foul of the law, even when the information a union has to provide does not impact on the outcome of the ballot.

In real life some members who should get a vote do not, and some who should not do. All it requires is for a member to fail to inform a union of a change of grade, or a change of address. In the case of the RMT the locations and numbers are irrelevant to the conduct of a ballot, accept insofar as the provision of this information is a hoop through which the union has to jump.

Of course the difficulties that a union may face in overcoming these hurdles will depend on the industry their members work in and whether it is a local or national dispute. What is clear now is that a national strike is more and more difficult because the information that a union has to provide is more complicated. In the case of Network Rail, signal boxes are small workplaces, around 1,000 of them (according to its 2007 Business Plan), usually with a small numbers of workers in each of them. To keep accurate information up to date is, as Bob Crow has said, like painting proverbial the Forth Bridge; the job is never finished.

It is high time that the unions recognised that the change in balloting regulations by the New Labour government has presented a big problem for us; one which has to be addressed. Notwithstanding the labour movement campaign for the repeal of the anti­union legislation as a whole, there is an urgent need for an amendment to these balloting regulations so that trades unions do not have to provide such detail. It should be sufficient that they inform a company of the grades/categories of staff they are balloting. Any management knows who these are. Moreover, a trade union should not have to provide information in order to assist a management in undermining a strike.


If the balloting regulations constitute a major problem, especially in relation to strikes on a national scale, the two judgements lost by UNITE and RMT, indicate an even greater obstacle to the organisation of industrial action. The judgement in relation to BA, as far as I am aware, marks the first time that a British judge has issued an injunction in part because the action proposed by a union (it had said it would organise a 12 day strike) was deemed to be ‘disproportionate’. Mrs Justice Cox said:

A strike of this kind over the 12 days of Christmas is fundamentally more damaging to BA and the wider public than a strike taking place at almost any other time of the year.”

Likewise in the judgement on Network Rail’s application for an injunction against the RMT’s strike, the question of proportionality was one of the grounds on which the injunction was granted.

“Charles Bear QC, the lawyer for Network Rail, convinced the High Court to intervene with the injunction by saying that the industrial action would cause a lot of damage to the already stricken economy. He explained that it was needed to prevent unlawful action, which would have the same effect as cancelling 80% of Britain’s rail services. Bear continued that this would damage businesses that depend on rail services for transport and freight, adding that it would also damage the claimant itself and train operating companies.”

In fact in British law there is no precedent for a judge to rule on the legality of industrial action on anything other than whether it constitutes a ‘trade dispute’ (a very narrow definition introduced by Thatcher) and whether a union has followed the balloting regulations. However, as a result of the Lisbon treaty the Charter of Fundamental Rights has to be applied in Britain. Any contradictions within the Charter, or questions of interpretation are subject to determination by the ECJ. The British government, it should be remembered, opposed the right to strike being a ‘fundamental right’! Readers may recall the ECJ judgements known as the Laval and Viking cases (see box). In these, the ECJ was considering the apparent contradiction between two Articles in the Charter.

Article 15 reads:

Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.”

Article 28 refers to “the right of collective bargaining and action”.

Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”

It is the apparent conflict between the right to strike and the “right of establishment and to provide services” which the ECJ considered.

The focus in the media and in the trades unions on these cases was on the implications for the employment of foreign labour as a means of undermining national agreements. Imported contract labour was being paid at rates lower than other workers in the country in question. Obviously the trades unions were concerned to ensure that the ‘rate for the job’ should be paid regardless of the nationality of the workers. However, the Posted Worker Directive offers no more protection than the minimum wage rate of the country into which a worker is posted.

What did not receive much attention, however, was the fact that in the Laval judgement the question of the ‘proportionality’ of the strike action was one of the reasons for the action being ruled as illegal. Whilst it is more general in European countries to have the legal right to strike, enshrined in law, this right is dependent upon whether the proposed action is judged to be ‘proportionate’ or not. The ECJ has held that unions have a fundamental right to strike under European law, but industrial action may have to be “justified” by “balancing it against employers’ rights to the freedom of movement and goods”.

British judges are now taking into account ECJ judgements in determining whether or not to grant injunctions to stop industrial action .

The BALPA case

Prior to the BA and RMT injunctions, in March 2008 BALPA members voted for strike action against British Airways decision to set up a subsidiary based in Europe. BALPA sought to prevent the company undermining wages by employing pilots on lower wages that BA paid their staff in the UK. BA sought an injunction based on the argument that the action would be illegal as a result of the Laval and Viking judgements. BA claimed that, should the work stoppage take place, it would claim damages estimated at £100 million. Under these circumstances, BALPA did not follow through with the strike, stating that it would risk bankruptcy if it were required to pay the damages claimed by BA. So the threat from BA was not tested in court, but it was sufficient to make BALPA back down.

As a result BALPA submitted an application to the International Labour Organisation concerning the British government’s failure to meet the requirements of ILO Convention 87, which covers the right to freedom of association and the right of unions to organise workers.

The UK Government response to BALPA’s application said that it was “misdirected and misconceived because any adverse impact of Viking and Laval would be a consequence of the European Union law, to which the United Kingdom is obliged to give effect, rather than of any unilateral action by the United Kingdom itself”. The Government also said that that BALPA’s application was “premature because it remains unclear what, if any, impact the Viking and Laval judgements would have on the application of trade union legislation in the United Kingdom”. The Government added that these judgements were not likely to have much effect on trade union rights because they were only applicable where the freedom of establishment and free movement of services between Member States were at issue. This has proved to be false.

The ILO committee of Experts had this to say in considering BALPA’s application:

The Committee observes with serious concern practical limitations on the effective exercise of the right to strike of the BALPA workers in this case. The Committee takes the view that the omnipresent threat of an action for damages that could bankrupt the union, possible now in the light of the Viking Laval , creates a situation where the rights under the Convention cannot be exercised. While taking due note of the Government’s statement that it is premature at this stage to presume what the impact would have been had the court been able to render its judgement in this case given that BALPA withdrew its application, the Committee considers, to the contrary, that there was indeed a real threat to the union’s existence and that the request for the injunction and the delays that would necessarily ensue throughout the legal process would likely render the action irrelevant and meaningless. Finally, the Committee notes the Government’s statement that the impact of the ECJ judgements is limited as it would only concern cases where freedom of establishment and free movement of services between Member States are at issue, whereas the vast majority of trade disputes in the United Kingdom are purely domestic and do not raise any cross-border issues. The Committee would observe in this regard that, in the current context of globalization, such cases are likely to be ever more common, particularly with respect to certain sectors of employment, like the airline sector, and thus the impact upon the possibility of the workers in these sectors of being able to meaningfully negotiate with their employers on matters affecting the terms and conditions of employment may indeed be devastating. The Committee thus considers that the doctrine that is being articulated in these ECJ judgements is likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention.”

It therefore recommended to the UK government that:

In light of the observations that it has been making for many years concerning the need to ensure fuller protection of the right of workers to exercise legitimate industrial action in practice, and bearing in mind the new challenges to this protection as analysed above, the Committee requests the Government to review the TULRA and consider appropriate measures for the protection of workers and their organizations to engage in industrial action and to indicate the steps taken in this regard. ”

The British government, of course, is a signatory to the ILO Conventions.

Whilst the British unions have been forward in praising and relying on European legislation as progressive, and a means of pressuring a British government to carry out legislation in line with European law (especially in relation to ‘social rights’), what we have here is European law being imposed in such a way that the very right to strike is under threat. Daniel Ornstein and Herbert Smith (Employment Lawyers Association), in line with the ILO assessment, are right when they say:

These two rulings impose substantive new restrictions on the lawfulness of industrial action and require the UK courts to adopt a new approach to the grant of injunctive relief, at least where there is a direct international element. Moreover, they may also apply where there is very little or even no direct international element. There is therefore every reason to conclude that Viking Line and Laval have provided employers with a potent new weapon with which to oppose industrial action.” (Our emphasis)

Those unions that supported the Lisbon treaty will see their members now paying the price in relation to employment law. Underlying the Laval and Viking judgements is the fact that the Lisbon treaty enshrines in law the predominance of the market, and open competition. Industrial action can be deemed a restraint on trade, on the “right of establishment”. The UK government, as we know, refused to allow its people to vote on whether or not to accept the Lisbon treaty. So fundamental changes in law were pushed through without any democratic mandate.

The defence of the right to strike, therefore, requires that we campaign against any determination by judges of the economic impact of the action taken by workers. Strike action is a means of economic pressure on a company. To accept the institutional and ideological concept of ‘balance’ means to accept perpetual interference by judges when workers have balloted for industrial action. An application for an injunction, once not very common, would become a usual occurrence.

2008 TUC

At the TUC Congress in 2008 a composite resolution on the ECJ judgements expressed the view that with these judgements EU law was “subjugating fundamental collective rights, including collective bargaining and to take industrial action, to the rights of employers and business”.

Derek Simpson, moving a Composite resolution on this issue, was certainly right when he said at the 2008 TUC Congress, referring to the Laval and Viking judgements:

It now transpires that the most recent judgements by the European Court of Justice cause, perhaps, the biggest challenge to the trade union movement in a century, far worse than Thatcher’s laws, striking at the very heart of collective bargaining, damaging unions’ abilities to fight for improvements in working conditions and making it not only preferable for employers but giving them legal protection to introduce cheap labour into any sphere, any sector and any corner of the economy.

…unless we reverse the European Court of Justice’s decisions, we are back in the dark days.”

In the same debate Bob Oram from UNISON said:

UNISON believes that the ECJ is unaccountable. We believe it is politically driven. Its recent decisions undermine our collective ability and collective rights even further than the disgraceful Thatcher attacks which are still on the statute books.

The situation is quite simple, comrades. The EU is committed to extending the internal market. That is privatisation to you and me. The Court, through these rulings, has seriously undermined our ability to defend our members against further attacks. The employers’ right to freedom of establishment trumps the right to strike leaving us defenceless against the EU’s drive to liberalise markets and institutionalise social dumping.”

The Composite resolution called on the General Council to:

i) develop a strategy and take action to counter the impact of these decisions;

ii) take urgent steps to meet with UK government ministers to obtain their support for legislative changes which

ensure more comprehensive protection for social rights in Europe;

iii) work with the ETUC to maintain pressure on the EU to bring about legislative change; and

iv) organise a mass lobby of MEPs to secure support for legislative change.

At the 2009 Congress reaffirmed its opposition to the ECJ rulings and reiterated that the Lisbon Treaty “exacerbates attacks on trades unions by handing greater power to the ECJ to interpret disputes concerning the Charter of Fundamental Rights.” But there was nothing in the General Council report on this, or on the implementation of the 2008 resolution. If indeed we are “back in the dark days” and collective trade union rights have been “subjugated…to the rights of employers and business”, what happened to the campaign?

The European TUC response

In the wake of the Laval and Viking judgements the ETUC has called for changes in European law to overcome the impact of the Laval and Viking judgements. In a speech to the Employment and Social Affairs Committee of the European Parliament, ETUC General Secretary John Monks said:

We are now left with not knowing what is “proportionate” action and what is not. Presumably a court will define “proportionality” in the context of each case, so creating intolerable uncertainty for unions involved in virtually any case of industrial action over migration and free movement, a naturally growing area for disputes as Europe integrates its labour and services markets. In some member states, the right to strike is a first rank constitutional right and this is now at risk. So, generally, is trade union autonomy.

So we are being told that the right to strike is a fundamental right but not so fundamental as the EU’s free movement provisions.”

In response to these judgement the ETUC has called for “A social protocol confirming that the single market exists to serve social progress, that fundamental social rights have priority, that enterprises cannot circumvent national laws and practices in order to engage in unfair competition on pay and working conditions …”

In October 2008 the European parliament voted through by a large majority, a report drafted by Jan Andersson (European Socialist Party) on challenges to collective agreements in the European Union. With this report the EP “expressed deep concerns” about the rulings of the ECJ in the Viking, Laval, Rüffert and Luxembourg cases.

The EP said that economic freedoms, such as the freedom to provide services, are not superior to fundamental rights, such as the right of trade unions to take collective action. Furthermore, it emphasised the right of the ‘social partners’ to ensure non-discrimination, equal treatment, and the improvement of living and working conditions of workers. The EP called on the Commission to prepare the necessary legislative proposals which would assist in preventing conflicting interpretation in the future and for a “re-assertion in primary law of the balance between

fundamental rights and economic freedoms”, in order to help avoiding a race to lower social standards.

John Monks said:

This vote shows clearly that the EP has succeeded in finding a compromise that allows for safeguarding the European Social Model and for protecting the industrial relations systems in the Member States, and I thank all those Members of the EP that understood the importance of this issue for the future of Europe and worked hard to get this report adopted. Fair competition between companies and respect for collective bargaining is an interest and concern that all trade unions share in Europe, be it in the ‘old’ or the ‘new’ Member States. I particularly welcome the fact that the EP is looking at ways to re­establish an adequate balance between fundamental social rights and economic freedoms. The ETUC renews its call to the EU institutions to give serious and urgent consideration to the adoption of a social progress protocol to be attached to the EU treaties.” (Our emphases)

There is, however, a fundamental problem with this approach. The single market was conceived as a means of Capital in Europe competing in the global market place. Moreover, the ‘free market’ foundation of the EU leads in the direction of turning public services into commodities, for they restrict the right of private businesses to enter these ‘markets’. (The Blair/Brown government, of course, has sought to remedy this by creating a ‘health market, where none existed, to invite private companies in.)

Since Monks and the ETUC’s position is coloured by the illusion that the ‘single market’ can serve ‘social progress’, it is no surprise that they views the purpose of such a protocol, which the ETUC wants to be legally binding, to be to “restore balance between economic market freedoms and fundamental rights”.

What exactly does “balance” between ‘social rights’ and ‘economic freedom’ mean? The very idea of ‘balance’ is a recipe for judicial intervention in the determination of whether a strike is legal or not. What right has a judge to determine whether or not workers who have voted for strike action should take it? The unelected judiciary is overriding the democratic decision of workers, who in any case have the cards stacked against them.

The EU and the ETUC accept that unions and employers have interests in common. The ‘European social model’ is based on the idea of ‘social partnership’. Trades unions that support such an outlook accept that the unions have an interest in helping their employers to compete successfully in the ‘single market’ and the global market. The concept of ‘balance’ between social rights and economic freedoms has a similar foundation. Support for social partnership marked an abandonment of the idea of class struggle and the fundamental conflict of interests between unions and the employers. For trades unions to call for ‘balance’ means accepting the right of judges to determine the legality or otherwise of industrial action on criteria which is rooted in a free market outlook.

A European Taff Vale?

As a result of the criteria of ‘proportionality’ and the threat of being liable for damages, we have potentially been thrown back to the Taff Vale judgement; a potential European Taff Vale. The Taff Vale judgement of 1903 involved the fining of the ASRS rail union for striking against the Taff Vale Railway Company. The fine was to recompense for the cost of the strike to the company. Whilst the judgement did not dispense with the right to strike it meant that the formal right to strike was worthless because unions could be prosecuted for executing that right, and fined for the cost of their action to the employer. They could potentially be bankrupted for taking any strike action.

In 1906 the Liberal government introduced legislation which created immunity from prosecution which meant that the right to strike could be used without fear of a union being bankrupted. The legislation was implemented as a means of the Liberal Party fending off the electoral threat of the young Labour Party, whose growth was given impetus by the Taff Vale judgement. The judgement had deepened the break of the unions with the Liberal Party.

The legislation was a concession to the electoral base of support which the Liberals had had amongst sections of the working class. Since then immunity from prosecution has remained the historic protection of the right to strike in Britain, whilst there has been “no positive legal right to strike”.

The parallel with Taff Vale is this. Then the formal right to strike was of little use if a union could be bankrupted for taking advantage of this right. Now, the right to strike is threatened because the concept of ‘proportionality’ enables employers to seek injunctions on such grounds when a group of workers has voted for strike action. Truly ‘a potent new weapon’ against the unions.

What use is the right to strike if you cannot exercise it because a judge determines that your action would be illegal because of the impact it would have on the employer and the economy and ‘consumers’ of goods and services? Mr Beard for Network Rail said that the action of the RMT was disproportionate because of the impact of the action in the context of a recession. What about the impact of a strike by UNISON on patients in the health service, or by the FBU, given the risk of fires? What of the threat of BA to sue BALPA for £100 million? There has been talk of the Tories bringing in legislation to ban strikes in ‘essential services’. In fact they would not need to, for an effective ban could be implemented on the basis of ‘proportionality’.

What the trade union movement faces, therefore, is the biggest challenge since Taff Vale. It needs to mobilise a campaign to defend the right to strike, to change the balloting regulations so they are not onerous for the unions, and to seek to build a European campaign to challenge the concept of ‘proportionality’ in law.

Neo-liberalism was marked by the attempt to subordinate society to the imperatives of ‘the market’. ‘Proportionality’ is nothing other than attempt to subordinate employment rights to ‘the market’. At stake is the democratic right of workers and trades unions to defend their interests and to challenge the tyranny of their “subjugation to the rights of employers and business”.


The Viking Case

The Viking Line shipping company tried to re­flag the ferry Rosella to replace its Finnish crew which cheaper Estonians. The Finnish seafarers union and the ITF organised a boycott of Viking. The company claimed it was a breach of its right to the freedom of movement of goods and service. The ECJ held that although the right to take collective action is a fundamental right it can constitute a restriction on the freedom of goods and services so must be justified.

The Laval case

A Latvian building company won a contract to build a school in Sweden and brought in Latvian workers. The Swedish union blockaded the firm in order to get them to sign up an agreement to bring their wages up to Swedish levels. The ECJ said that the right to take collective action is a fundamental right but it must not go beyond what is suitable for attaining objectives. Furthermore, it held that action to give workers rights beyond those already given by the Posted Workers Directive cannot be justified. The PWD means that workers can be employed for the minimum wage in a country, even if this is in breach of local agreements negotiated by unions and employers.

The Ruffert case

In the Ruffert v Land Niedersachsen, a German company won the contract to build a prison. The contract specified that wages were to be paid at the level collectively agreed for the region. However, the German company sub -contracted the work to a Polish company which paid their workers less than half of the German workers on the site.

On discovering this, the company terminated the contract and imposed financial penalties. The ECJ decided that the requirement for a minimum salary level was capable of constituting a restriction on trade and was not justified on the grounds of protecting workers or protecting the independence of trade unions. In addition to Article 49 (freedom of establishment) the Posted Workers Directive prevented the requirement for higher wages on contracts for public work where there was no corresponding requirement for private sector contracts.

The Luxembourg case

In July 2006, the unelected Commission of the EU brought an enforcement action against Luxembourg in which it claimed that Luxembourg had failed to fulfil its obligations under the PWD and under Article 49 and 50 concerning the freedom to provide services. Luxembourg sought to impose better conditions than the minimum level under the Posted Worker Directive. This was declared illegal.

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