After the court declared unlawful BA cabin staff’s 92 per cent majority vote for strike action on an 80 per cent turnout, they are now to ballot again. The cabin crew have called for a ten-day strike. Meanwhile BA is threatening to blackmail ground staff into scabbing by becoming temporary cabin crew, and to lease aircraft and crew from other airlines. No doubt the company will also go back to court to challenge the next ballot. It’s already threatening to stop cheap flights for striking staff.
Anti-union laws brought in by Thatcher and kept in place by Labour have been used many times to nullify legitimate ballots, each time case law making the laws more and more restrictive. An accurate postal ballot depends on a union knowing precisely who of its members will be involved in any particular dispute, their current address, their employer and much more. The union must notify the employer whom they are balloting, and the employer is more likely to have up-to-date information than the union.
In the public sector the number of employers involved in any dispute can be in the thousands, and constantly changing, so the room for error is huge. One employer takes the union to court and the whole thing can crumble. Up to now there had always been a little “wriggle room” around “reasonableness”, or courts would take into account whether the balloting discrepancies would have materially affected the result or whether the union had taken all steps reasonable to ballot an accurate list. The nature of the strike was never legally judged by a court.
The BA judgement changed all that. The cabin crew’s vote was an unprecedented result that would be the envy of most unions. But Mrs Justice Laura Cox ruled that a tiny proportion of Unite members who were in the process of agreeing redundancy were balloted, and despite the fact that the number would have made no difference to the outcome, she declared the ballot unlawful. But she did not end there. She went on to criticise the impact of the strike if held over Christmas. So now judges will not have to take account of whether any inaccuracies in the ballot register would have significantly affected the outcome, but will be able to take account of the impact of the strike.
Maybe workers will have to take a leaf out of the cabin crew’s book. Remember some years ago during a similar dispute, the cabin crew simply all phoned in sick at the same time. Or maybe workers will have to follow the example of the construction workers at the Lindsey oil refinery and simply walk out. In any case we must become outlaws – there are no longer any rules of the game. Striking is effectively illegal.