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Go on strike, or leave the EU - which is easier? (Wyn Lewis)

Go on strike, or leave the EU - which is easier? (Wyn Lewis)

According to the Electoral Commission, in the Brexit referendum on 23rd June 2016 there were 17,410,742 votes cast in favour of leaving the EU and 16,141,241 votes cast in favour of remaining in the EU. Given a 72% turnout of the then total electorate of 46,500,001 and after taking into account rejected ballots, this amounted to a 51.9% vote in favour of Leave and a 48.1% vote in favour of Remain by those who voted. Important political and social changes will now happen.

From 1st March 2017 the Trade Union Act 2016 will impose new minimum voting requirements if a vote in favour of a strike or other industrial action is to be lawful. The background is that - despite the UK being a signatory to various international conventions that protect the rights of employees to join trade unions and participate in industrial action - there is, in practice, no formal UK right to strike or engage in industrial action. Instead the mechanism is that, if certain balloting requirements are met during a trade dispute, acts that would otherwise result in claims for damages against a trade union for unlawfully inducing a breach of an employment contract as well as the lawful dismissal of employees for fundamental breach of contract in refusing to work, are protected and the employer loses the right to sue the trade union and (to a limited extent) to dismiss the employees.

So what are those new industrial action voting requirements? They are that (1) at least 50% of union members who are eligible to vote must vote; (2) there need then be no more than a simple majority of those who actually vote for strike or industrial action to be lawful; but (3) if a ballot for strike or other industrial action is of people who work in “important public services” – identified as the health service, teaching under-17s, the fire service, transport services, the nuclear industry and border security - then at least 40% of those eligible to vote must also vote in favour of industrial action (though the 40% support requirements may not apply to public authorities in Wales if the Trade Union (Wales) Bill is passed – which is doubtful - by the Welsh Assembly).

The “important public services” provision derives from the announcement in the Conservative Party manifesto in May 2015 of an intention to end "disruptive and undemocratic strike action" by introducing tougher thresholds when voting for strike action. This reflected a growing intolerance by politicians and the public of industrial action that, for many, appeared unnecessarily self-serving and failed to balance personal interests against the public good and the need for a reliable infrastructure.

This “balancing” exercise in relation to strikes and other industrial action wasn’t, however, a feature of the European Union Referendum Act 2015 passed on 15th December 2015 (i.e. after the Conservative government’s intention to introduce more balance and democracy into industrial decision-making). Instead, the referendum required only a simple majority of Leave or Remain.

So what’s the link between Brexit and voting for strike or other industrial action? Let’s just apply the new post-1st March 2017 industrial action voting rules for important public services to the (presumably) publicly important Brexit vote. In order for the Leave vote to have won:

  • applying condition (1) above: at least 50% of the 46,500,001 then eligible voters – so at least 23,250,001 - must have voted. In the referendum, because 33,551,983 people voted, this threshold was passed easily;
  • applying condition (2) above: at least 50% of those who voted – at least 16,775,991 - must have voted Leave. In the referendum, because 17,410,7423 people voted Leave, this threshold was also passed easily; but
  • applying condition (3) above: because of the (presumed) importance to the public of Brexit, at least 40% of those entitled to vote – so at least 18,600,001 - would have had to vote Leave. In the referendum, only 17,410,742 voted for Leave, so the Leave vote would have failed.

 Consequently if the Trade Union Act 2017 principles had been applied to Brexit, the UK would not now be about to trigger legislation that will result in it leaving the EU.

There are several ironies here:

  • First, the balancing (on the one hand) of employer rights to require substantive support for strike and other industrial action against (on the other hand) employee rights under Article 11 of the European Convention on Human Rights to engage in freedom of assembly and association, is justified by the government as having the legitimate aim of ensuring that industrial action has democratic support and legitimacy within the relevant workforce and is proportionate to that aim. No such proportionality was accorded to the blunt instrument of the Brexit referendum.
  • Second, a vote in favour of strike or other industrial action has the equivalent of a “use by” date. Currently, industrial action must be started within 4 weeks of the date the ballot closes, or the ballot result will be treated as “stale” (but the union and employer may agree to extend this period to 8 weeks if they think further time may enable a dispute to be resolved). After 1st March 2017 the “use by” date will be 6 months from the result of the ballot, extendable to 9 months if the employer and union agree. But no such “use by” date applies to the implementation of the Brexit referendum (i.e. to the date by when notice to leave the EU under Article 50 of the Treaty of Lisbon must be given). If there were such a “use by” date, the failure to trigger Article 50 by now, some 8 months after the result, would invalidate the referendum and the right to trigger Article 50 (and, arguably, render a similar vote in a 2nd referendum less likely).
  • Third, a failure to observe the new rules about voting for strike and other industrial action (particularly the requirement in the Government’s Explanatory Note that voters should be provided with information that “should be sufficient to enable the unionmember who is voting to understand what issues remain unresolved”) would render the trade union liable for damages and take away (from the employees who voted for industrial action) the right not to be dismissed for the fundamental breach of contract caused by striking or engaging in other industrial action. No such requirement or sanctions applied in connection with the partial or naïve information provided to the electorate in relation to the Brexit referendum about the consequences of leaving the EU to them or to those 3 million or so EU citizens who had chosen permanently to live in the UK.

 So, despite the wish to introduce balance and minimum thresholds into strike and industrial action ballots, the Government introduced nothing of the kind to the Brexit referendum.

Now, for those who are interested in what else the Trade Union Act 2017 does, here is a run-down; it amends the Trade Union and Labour Relations (Consolidation) Act 1992 by:

  • increasing ballot thresholds;
  • introducing new information and timing requirements in relation to industrial action;
  • imposing requirements onunions for supervising picketing; and
  • anticipating (but not introducing) regulations about check-off of subscriptions in the public sector.

 As to the original question: yes, it will have been easier to leave the EU (affecting 64 million people) than it will be to go on strike (affecting a significantly smaller – and less inconvenienced – cohort).