What the CWU ruling means for the movement

Royal Mail have successfully prevented a strike action by postal workers by an injunction. Rachel Eborall explains the High Court decision and the implications for the workers’ movement more broadly.

Postal workers in orange work jackets stand in a parking lot, with flyers of the Communication Workers' Union in their hands.
Photo: @MerseyCwu

Postal Workers in CWU have delivered a 97.1% vote for strike action on a turnout of 75.9%. Even under Britain’s draconian trade union laws, the CWU had managed to carry out a legal ballot that showed that the members of the CWU were prepared to take action. CWU members voted to strike as Royal Mail bosses broke agreements that would lead to postal workers losing thousands in wages and worsening of conditions of whilst the boss of Royal Mail gets paid $2.7million a year. 

Many people are familiar with the 50% minimum turn out rule that was introduced with the Trade Union Act 2016. However, there are many other regulations that make it difficult for workers to organise legal strike action. Unions are required to employ an independent scrutineer to conduct the ballot (the CWU did this), as well as to send the employer an enormous amount of information including a copy of the ballot paper (the CWU complied). Ballots must be sent to home addresses rather than work addresses (the CWU conformed) members should be able to vote without interference (no Royal Mail employees have complained about such). The CWU conducted a legal ballot and action was supported by 97.1% of their members, surely the strike would go ahead. 

Royal Mail decided to try and prevent the strike. They could have offered a deal that the CWU would have to take back to their members, maybe they could have illegally employed scab workers, but the legal route they chose to take was unexpected, as the CWU complied with the law. However, Royal Mail was able to use the courts to successfully stop a well-conducted ballot – they got an injunction.

When interviewed by Employers Law, Kevin Green, a former HR director at Royal Mail said, ‘Any employer faced with damaging industrial action should consider an injunction…. When you are faced with disproportionate action, you have to use everything in your armoury to maintain services to the customer.’ An employer can seek an injunction when they believe they would incur damages because of the planned strike action and in which there may have been some illegality in the ballot. Royal Mail was granted the injunction on the following grounds that some mail workers had been shown completing the ballot paper at work which was interfering in the ballot – Royal Mail was able to bring the fact that CWU members had been unduly pressured to the court despite the fact that they had no complaints from postal workers.

The judge also cited the fact that the strike was to be held during December and would interfere with the general election as a reason to grant the injunction. This was despite the fact that the ballot and dates of the proposed action were decided before the general election was called and there is no legal basis that this would invalidate the strike ballot. Of course, if the courts were really interested in justice the fact that the postal workers are such an integral part of our democratic system would show that perhaps Royal Mail should concede to CWU demands which would mean the strike would be called off.

The fact that anyone who may incur damages can take an injunction against a potential strike highlights just how undemocratic this process is. The fact that no workers have described being intimidated or have made complaints, but the judge decided the ballot was invalid on the grounds of interference nonetheless further highlights the hypocrisy of the process.

Trade unions that ignore an injunction and continue with an action that has been ruled unlawful face being charged with contempt of court, could face unlimited fines or a grab of assets and trade union officials often fear that they could place their trade union in peril. This real threat can be used by right-wing or timid trade union bureaucrats and leaders as a reason to stop action, and result in decisions to stop action without reference to their membership, mirroring the undemocratic nature of the legal system.

In order to stay within the letter of the law, trade unions may have to rerun the ballot. This can lead to a weakened result as workers are disillusioned or lacking in confidence. The CWU said ‘We all need to wake up and recognise that this Tory Government has deliberately stacked the rules against workers in favour of the constituency they were born to serve – which is big business and the establishment.’

Injunctions have been used many times before and some argue that the use of anti-trade union laws led to the decline in the workers’ movement. The repeal of the anti-union laws has been a demand of the workers’ movement for some time and fortunately, the commitment in Labour’s manifesto is the following:

‘Allow trade unions to use secure electronic and workplace ballots.

Remove unnecessary restrictions on industrial action.

Strengthen and enforce trade unions’ right of entry to workplaces to organise, meet and represent their members and to recruit.

Ban union-busting, strengthen protection of trade union representatives against unfair dismissal and union members from intimidation, harassment, threats and blacklisting.

Repeal anti-trade union legislation including the Trade Union Act 2016 and create new rights and freedoms for trade unions to help them win a better deal for working people’ 

This has to be welcomed as a radical progression within the Labour Party, even while we argue that it doesn’t go far enough. However, it would be a mistake to think that a change in the law on its own will lead to resurgence of the workers’ movement. The reasons behind the lack of combativity that has shaped the last thirty years of the workers’ movement are more complex. Workers felt less confident after a number of significant defeats, most notably the defeat of the miners in the 1980s and mass sackings in times of high unemployment. The government used the full violence of the police so strikers faced physical or psychological injury and arrest. Fewer strikes occurred, therefore fewer concessions were won from employers, which meant that union membership density and militancy declined. The lack of strike action also means that workers haven’t been tested in battle or developed the confidence necessary to challenge timid trade union leaders or bureaucrats.

Just has the anti-trade union laws weren’t the only reason behind the lack of strike action they also haven’t been able to quash workplace militancy completely. There are examples of well-organised strikes that have been arranged despite the laws, such as the upcoming UCU strike and the Lincolnshire Health Visitors. There are also examples of workers taking unofficial or illegal action. Fundamentally, workers need to strike back to win higher wages, to maintain conditions and in some cases to ensure that health and safety laws are obeyed. The drivers behind whether people take action are necessity and confidence. In fact, members of the CWU recently took unofficial strike action over racism in Bootle. Construction workers have taken unofficial action over blacklisting, and some others have also found creative ways to fight back such as organised simultaneous sick days. 

We need to fight against all the anti-trade union laws. We need to demand that Labour goes beyond their manifesto. We also need to advocate that sometimes the strongest response against injunctions is to break them. The best response by the CWU would have been to call an illegal strike whilst campaigning for solidarity in the movement. If this were successful it could push Labour to make more radical promises, but much more importantly, it could give confidence to workers to organise at work and act collectively. 

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