BA cabin crew, despite an overwhelming 9:1 vote in favour of going on strike, were prevented from doing so last year as a result of an injunction. The basis for halting their walk out? In essence, data quality.
In a court action in 2008 that went largely un-noticed – except by the kind of lawyers who work for employers faced with a strike – an earlier industrial dispute between the Unite union and Metrobus was similarly halted. The basis was a section of the 1992 Trade Union Act which requires unions to give a company accurate voting information, including the number of employees voting and the departments they work in. In both that case and at BA, it emerged that some of those voting to strike had already agreed to leave the company.
This puts the union into something of a Catch-22 situation. Many current strike proposals relate to redundancies, either voluntary or enforced, which are often put to a workforce over a rolling period. This creates a gap between a union balloting its members and when some of them may have accepted redundancy.
While the union is required to tell the employer about details of its ballot, the employer does not have to provide information about who is quitting their job. So there is a mis-match in data quality terms that arises between the two different date stamps those sets of information will carry.
Employers have pounced on this legal requirement to challenge strike actions. During 2009, at least 11 injunctions were sought, with eight granted, while a further 12 businesses threatened to go to court. Metrobus has become a by-word in the legal profession for anti-union actions, including claiming compensation from any union successfully injuncted in this way.
There are those who believe that no worker should ever go on strike, especially white collar workers who are not in unionised workplaces. But withholding your consent to carry out a task because of a dispute about the terms and conditions under which it is to be done is a fundamental democratic right, even if one to be exercised in the last resort.
With the possibility of a new Government later this year which will be ideologically opposed to union action, the Metrobus effect is likely to have a strong dampening influence over unions and their members. The only way forward for unions is to find a way to resolve the data quality problem in order to maintain their role as representatives of workers and their rights.
One solution might be for a third party to act as an honest broker, receiving data from both sides in a dispute and carrying out the match prior to a strike. This would reveal whether the union has legitimate support and can proceed, or needs to improve its database and voting processes. Any volunteers?