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From International Socialism, No.71, September 1974, pp.7-8.
Transcribed & marked up by Einde O’Callaghan for ETOL.
‘EVEN THE mouldering putrefying corpse of Tory legislation,’ said Harold Wilson on 6 May, ‘even as it festers, can still spread poison and do harm to industrial relations.’ Wilson was speaking of the NIRC judgments in the GAS and Con Mech cases, but his words will do to describe the Trade Union and Labour Relations Act – Labour’s aborted child. For this new industrial relations act has been hailed by the TUC and Labour bureaucrats as the basis of the ‘Social Contract’ at the same time as drawing from the Tory spokesman, James Prior, the statement that the new act ‘can now stand as a solid foundation for our law on trade union organisation and on the legal framework in collective bargaining’. ‘There will be no need for further substantial legislation in these particular areas,’ he said on 9 August.
The magical solution that unites Labour and Tory Parties is both the fact that in the last stages of parliamentary debate the Tories and Liberals managed to slip in certain wrecking amendments and more importantly that the basis of trade union law is unchanged. The fundamental bias against organised workers is if anything slightly increased by the Trade Union Act as compared with the situation before 1971. Of course, Labour has ‘promised’ that the wrecking amendments will be removed assuming they win the next election. We are also promised two more acts – the Employment Protection Bill and a law on participation. For the moment, however, a close look at the law shows just how limited are the benefits from the Trade Union Act.
The Unfair Dismissal rights of the new Act were greeted with a fanfare by the TUC, and it is on the basis of these and the abolition of the NIRC that the social ontract is partly being sold. The Unfair Dismissal section of the Trade Union Act is largely adopted from the Industrial Relations Act, but amendments in the House of Lords made the provisions for the closed shop completely contradictory. The closed shop is ‘legal’ except for discrimination against ‘religious objectors’, ‘reasonable objectors’ or ‘members of other appropriate trade unions’. This in fact means that a vast degree of discretion is given to the bigots who control industrial tribunals to undermine trade union strength.
A more important aspect of the deception involved in the unfair dismissals procedure is the lack of effective guarantees to workers in real trade union situations. Looking at the total of unfair dismissal applications in 1973 we see that over 25 per cent of the 9350 cases were from management or related occupations. 50 per cent of the 1973 cases were withdrawn or settled by ‘conciliation’. A third of the remainder were ineligible, while the success rate of those cases heard was 36 per cent. 32 per cent of those winning their case did not receive any compensation. Where compensation was given in court, over 60 per cent (629 cases) got less than £300 for losing their job. Only 91 cases (1 per cent) resulted in recommendations – not enforceable – for re-engagement. The only conclusion is that unfair dismissal rights have nothing to do with actual trade union situations. They are a small protection for isolated individuals with no organisations to defend them. They offer no protection at all in dispute situations.
Proof of this is clearly seen in an important case involving workers at Perivale Gutermann who were sacked after a long dispute, involving a go-slow and a one-day stoppage. 58 workers – all Asian – fought their cases following the advice of the local TGWU official. The cases were fought under the Industrial Relations Act, but the result would have been identical under the Trade Union Act or indeed any law that British justice has devised. The decisive aspect of the judgment against them was based on a case involving ASLEF, there a railway work-to-rule was found to be ‘disruptive’. The judgment of Donaldson at the NIRC was simply that: ‘The combined industrial action of a group of workers can, in certain circumstances, even if not in breach of contract, fully justify an employer in dismissing them.’ (Sani & others v. Perivale-Gutermann Ltd, NIRC, 12.6.74).
Now in ‘defence’ of Donaldson he was not being ‘trigger-happy’ – he was simply interpreting the law as it was, and as it is. For the new act does not only make it legal to sack a worker for striking, which has always been the case. The new law states that it is fair to sack workers for strikes ‘or other industrial action’. The Trade Union Act actually widens the possibility of fair dismissal of trade unionists. This was no Tory amendment either, as the words ‘other industrial action’ have been in this act from the start The cruel fact is that the right of the employer to sack you, the right of ‘management to manage’, runs through all industrial law. However much Labour would like to pretend that they can reform industrial relations, however much union leaders – including those of the left – want to think that they can use the law, the reality is that ‘unfair dismissal’ can only give the ‘right’ to be a non-unionist until workers control the state. This Marxist truism is nowhere more clearly shown than in British industrial law.
This article has concentrated on ‘unfair dismissal’ because it is the most deceptive and dishonest of the ‘selling points’ of the Trade Union Act. It is vital to refute the kind of nonsense that Labour Research was responsible for in their June 1974 issue, where O.H. Parsons writes that the Bill (as it was then) ‘effectively restores the rights which unions enjoyed for a generation and will leave the way open for fair, evenly-balanced labour relations’. This is just not true. Yes, the NIRC has gone as has the idea of ‘unfair industrial practice’. The CIR has disappeared – only to re-appear in the Conciliation and Arbitration Service. Legally-binding agreements, of which the EEPTU signed several, have also gone, so have the restrictions on blacking, so has the agency shop. And indeed the Trade Union Act does in a limited way make it easier to sue for unfair dismissal. The qualifying period of work before you can claim is reduced to one year and will be reduced to six months. Tribunals do now in theory have the right to recommend re-instatement – though there is no way they can enforce this.
These are the real changes for which the social contract has been sold. The mess the Labour Party got itself into in parliament by not simply abolishing the Industrial Relations Act straight away is in part responsible for the contradictions and bias in the new law. But allowing for the fact that social democrats do not even know how to use parliament, the act in no way protects the unions. The precedents for scabs like Goad, Langston, Betteridge, Hill and others less well known have all been set down. The machinery for harassing the unions – the industrial tribunals – has been set up. The cases which establish the possibility for an assault on the unions by the judiciary are there to be read – Langston v. AUEW, Con Mech v. AUEW, General Aviation Services v. TGWU, Saunders and others v. Ernest A. Neale Ltd, Secretary of State for Employment v. ASLEF and so on. That is only League Division One of the armoury of precedents available to tribunals, the county courts, the High Court and the House of Lords.
Writing in the August AUEW Journal, Hugh Scanlon inveighs against the lords who amended the Trade Union Act ‘The Trade Union and Labour Relations Act has therefore been mutilated by a combination of anti-trade union elements in both houses of parliament.’ It is .not however in the spite of the opposition MPs that the real danger for the future lies. It is in the illusion that anything is guaranteed by the system of industrial law. In the same LRD article, O.H. Parsons insists that ‘Only successive Acts of Parliament, in 1871, 1875, 1906, 1913, have given unions their precarious right to exist and operate.’ Now even the ostriches in Congress House know that the 1875 Act – apart from giving the ‘permission to exist’ – incorporated the law used to imprison the Shrewsbury pickets. In exactly the same way the 1974 Act is full of pitfalls. So for example it is an ‘inadmissable’ reason for dismissal that a worker exercised union rights. But it is perfectly fair if – in the view of the tribunal – he was acting in any way against the company’s commercial interests. Similarly, there is no law specifically against picketing – only laws against effective picketing. Blacking is alright – but be careful you don’t interfere with the company’s commercial position. And the union closed shop is in order -provided you don’t exclude blacklegs in an ‘unreasonable’ way. Who is to decide what is reasonable? The tribunals, the magistrates, the judges, the lords ...
The whole picture is perhaps symbolised by what the Labour government has done to the CIR. The CIR was an object of great hatred, along with the NIRC. It has been abolished. The Chairman, Sir Len Neal, has been blackballed by the TUC. But the personnel, the records, the philosophy remain the same. They have been transferred in one go to the Conciliation Service. Meanwhile the Pay Board staff and records have all gone to the new Royal Commission on Incomes. The policies remain the same, most of the people remain the same, the courts remain the same, the needs remain the same – only the name of the game is different. When all the dust is cleared from the new Trade Union Act, the reason for Mr Prior’s acceptance becomes clear. Enough has been done to retain the machinery to control the unions. The only rights the unions have are those enforced by their strength, their solidarity and their politics. The state has more weapons to use against workers than it did in 1971 and that is what matters to the employers and the government.
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