‘the Trade Un Ion Act 2016 Is A Proportionate Response To The Need To Balance The Right To Strike With The Interests Of Employers, Consumers And The Wider Public Interest.’ Discuss.

The Trade un ion Act 2016, despite not yet actually being in force, has been widely maligned amongst commentators fearful of the impact it will have on the right to strike. This essay will argue that its provisions cannot be seen as a proportionate response to balancing the right to strike with other competing interests, by questioning both the justifications given for the Act and the substantive provisions it contains. Furthermore, it will be argued that the question too readily assumes a tension between the right to strike, interests of employers, consumers and a wider public interest.

1) What does the TUA 2016 do?

As noted above, the TUA 2016 is not actually yet in force, despite having received royal assent. As such, it is impossible to examine its impact from any perspective other than a hypothetical one, however certain provisions seemingly have clear effects, and so they should be noted first in order to then determine whether the provisions contained in the Act are proportionate in relation to the rights above. It is not possible in this essay to examine all the TUA 2016 in its entirety, but broadly it is a piece of legislation seemingly rooted in managerialist ideology through a think-tank piece Modernising Industrial Relations, seeking to make strike action more democratic and reduce its impact on services valued by consumers. It does this through several key provisions:

i) S2 introduces a 50% turnout requirement in ballots for lawful strike action

ii) S3 introduces a 40% support requirement in ballots for strike action in important public services

iii) S3(2)(E) draws an arguably broad conception of important public services

iv) S10 places restrictions on picketing and introduces a picket supervisor requirement

These provisions will be examined below, with reference to the policy justifications given by the Government, and their standing within the existing framework of case law.

2) Balancing Interests:

The Question above operates on the assumption that there is a need to balance the right to strike with the interests of employers, consumers and the wider public interest. It is argued that to conflate these three categories precludes genuine understanding, and so they should be addressed separately, even if briefly. Only then can it be determined whether the restrictions in the TUA should be seen as proportionate .

Firstly, it should be examined to what extent there even exists a right to strike in English law. The Court of Appeal judgment in Metrobus v Unite famously dismissed any notion of such a right, reinforcing Lord Denning s view from McShane that because the provisions now enshrined in TULRCA provide immunities from liability when striking, they do not confer any right. As such, it could be argued the statement in the question above cannot be correct, the TUA 2016 cannot be a response to a need to balance the right to strike with competing interests, because there is no right to strike in English law.

However, for the purposes of this essay, it will be argued that the more accurate position to be taken is that following the ECtHR in Demir and Baykara, even after RMT, a right to strike should be seen under Article 11 of the European Convention on Human rights, as incorporated by the Human Rights Act.

It is arguable some balance is required between the interests of employers and the right to strike, because ultimately we operate within a capitalist economy which could not function if for example a completely unrestricted right to strike enabled the kind of wildcat strikes seen by dockworkers during the first Wilson government. However, what is questionable, and will be examined below, is whether the restrictions in the TUA are really proportionate in this balancing, or whether a balance should be sought through other means and if so what that balance should look like. It will be argued that any balance should in fact be weighted in favour of workers in the labour/capital relationship.

Finally, the question suggests there is a need to balance, and therefore a tension, between the right to strike and the wider public interest. It is argued that this view postulates a false dichotomy, in that actually, it is in the wider public interest to recognise the right to strike.

3) Proportionate ?:

Having examined the tensions between the rights listed in the question, and what the TUA 2016 actually does, it must be determined whether the provisions in the TUA are a proportionate response to the need to balance those interests. For the purposes of this essay, proportionality will be examined from both a legalistic, human rights based perspective, and also a policy based perspective, with reference to case law and the justifications given by the Government for the TUA 2016.

a) Policy Justifications:

Dealing specifically with the idea that the restrictions in the TUA are proportionate , In their 2016 Article, Ewing and Hendy suggest that the Government based such claims on the judgment of the European Court of Human Rights (ECtHR) in RMT v UK. A climbdown from the high watermark of Demir and Baykara, by holding that UK prohibitions on secondary action were lawful, the ECtHR could arguably be seen to have given states such a wide margin of appreciation in dealing with the right to strike, that even the restrictions in the TUA should be seen as proportionate , and thus not contrary to A11. However, it is argued that to accept such a proposition is incorrect.

The Government justifies the key provisions of the TUA highlighted above which amend the requirements for industrial action to have the support of a ballot and as such protected by the statutory immunities, as proportionate in an attempt to balance the right to strike with the wider public interest by reference to democracy. Ford and Novitz) highlight that the origins of the TUA s Industrial Action reforms are a single paragraph in the 2015 Conservative Party General election manifesto, which promised to protect the public from disruptive and undemocratic strike action . This democracy justification has been a consistent theme throughout the reform, and taken at face value may suggest that the TUA is a proportionate response to balancing the right to strike against the rights of consumers. By ensuring that strike action actually has the support of a larger proportion of un ion members, it will prevent some tyrannical minority disrupting services valued by consumers.

However, it is argued that treating such a point as evidence of proportion is untenable. If the TUA was actually an attempt to rectify imbalance around democratic accountability within strike action, impacting on consumer needs, then the Act would seek to make it easier for democratic outcomes to be achieved. If we are to say that democracy in this regard can be measured by greater involvement of the un ion electorate, then it is impossible to justify Parliament s refusal to allow electronic voting in ballots for strike action.

b) Substantive Provisions:

i) Important Public Services?

The TUA should not be seen as a proportionate attempt to balance the right to strike with those of consumers, because it drastically expanded the notion of an important public service to be caught in the S3 balloting requirements. For example, education of those under 18 is vital for the long term functioning of society, but is ultimately unlikely to be impacted by short term strike action. This inclusion not only represents a consumerisation of education through some sense of entitlement that workers should not be allowed to strike because it impacts on our education provision, but completely undervalues the right to strike in relation to the interests of those consumers of education. As such, the TUA should be seen as wholly disproportionate in this balance, as it is argued below to be in the balance between strike and employers rights.

ii) Employers Rights

The question suggests that the TUA provides a proportionate balance between the right to strike, and the rights of employers. However, it is argued that the restrictive balloting requirements of S2 of the TUA suggest it fails to recognize that if there is a balance needed here, then such a balance should be tilted in the other direction. A system whereby the rights of workers to strike are protected beyond those of employer would recognize that strike is one of few mechanisms for labour to exercise power in an inherently unequal employment relationship. This right should be protected, whereas the TUA has, far from being proportionate in an attempt to balance it against the rights of employers, restricted it in an attempt to extend further employers rights.

iii) Picketing

It is argued that the TUA cannot be considered a proportionate attempt to balance the right to strike with the competing interests outlined in the question, because it features wholly disproportionate features such as the need to appoint a picket supervisor in S10, in order for a picket to be lawful. Such a person must be identified and identifiable to the police, along with being readily contactable. It is argued that this is straightforwardly disproportionate for two reasons. Firstly, in a legal sense, it should not be accepted that such requirements satisfy a standard proportionality requirement that acts infringing qualified rights are done so in the least infringing way possible, in pursuit of a legitimate aim. Here, tenuously, it could be argued that these picketing requirements pursue the legitimate goal of providing accountability in potentially violent strike situations. However, in the context of the blacklisting litigation of recent years, it appears that declaring yourself to be a un ion activist leading a picket line is not something many will want to engage in. Combined with the ability to declare a picket unlawful for something as simple as the inability of a picket supervisor to produce their letter of approval, the TUA arguably places such broad restrictions on picketing as to make that facet of the right to strike largely inactionable. This therefore should be seen as disproportionate, as it undermines a recognized element of the right to strike.

4) Conclusion:

Ultimately, the TUA 2016 should not be seen as a proportionate response to the competing interests of the right to strike, employers, consumers and the public, because even where there is tension between those interests, its provisions are seemingly wildly disproportionate in arguably both a legal and normative manner. The TUA should instead be seen, as suggested by Dukes and Kountouris, as the attempt of a right wing government to preclude strike action by the back door , not only making it significantly harder to strike lawfully in the first place, but then creating picketing requirements making it much less likely unions will find willing volunteers to supervise, particularly in light of the Blacklisting scandal of recent years. The TUA should not be seen as proportionate, or as an attempt to bring any sort of balance. Rather, it should be seen as the attempt of a first Conservative majority government in 18 years to restrict the last vestiges of power of labour in the famously unequal employment relationship