It is being reported that Balfour Beatty has withdrawn from the proposed “Besna” pay deal for mechanics, electricians and plumbers in the building engineering services sector. Balfour’s decision was caused by the defeat, on Thursday, of its application to the High Court for an injunction to stop strikes intended to derail the agreement. Thursday’s decision is already up on Bailii.
This episode marks a humiliating climb-down for the construction employers who only three days ago were claiming that 90% of affected employers had signed up to Besna. More significantly still, it also points to a genuine transformation in the approach of the senior judiciary to strikes.
As recently as the winter of 2009-2010, it seemed that the prevailing mood in the High Court was one in which the Judges were willing to grant injunctions prohibiting strikes almost whenever they were asked. A series of strikes by workers at Metrobus, EDF, Milford Haven and Network Rail, were stopped in this way.
The underlying logic appeared to be something like this: first, the wording of the anti-strike laws (i.e. Part V Trade Union Labour Relations Consolidation Act 1992) was so prohibitive than in almost every case, a failure on the part of the union could be found; and where there was a breach, it was appropriate to halt the strike. More fundamentally, the general test when determining whether any interim order should be made is the balance of convenience between the parties. Employers who are forced to undergo strikes are inconvenienced: large employers may lose tens of millions of pounds as a result of a single day’s strike. Workers who don’t strike, or so the argument went, lose nothing. It was fairest therefore to stop any proposed strike.
The moment when the Judges stopped granting injunctions was the decision of the Court of Appeal in the long-running British Airways strike. Why does the law require unions to publicise the number of workers who spoil their ballot papers in a strike ballot?, Lady Justice Smith asked David Reade, counsel for BA in the Court of Appeal. The evident difficulty that he had in discerning any purpose to the legislation (beyond the simple, brute, desire of a previous generation of legislators to prevent strikes), found its expression in due course in a decision of the court not enforce legislation which the Judges could see no good reason to read literally.
Maybe the old wisdom – that any strike contravened principle – was just too blunt.
Part of the purpose of the law is always to determine disputes in favour of those who already wealthy and powerful; but part of the point also is to encourage social peace by showing the vast majority of people that their disputes can be resolved fairly. These two principles are always in tension, and (at least with respect to industrial action) we appear to be in a moment where the second of these principles is winning out.
In Balfour Beatty v Unite, the court was told that the union had not done enough to specify the job titles and the sites of the workers it proposed to call out. Mr Justice Eady’s decision shows that he too saw no reason to read Part IV against the union: “it is clear from the evidence of Unite, and in particular from the witness statements of Mr Nick Drysdale, that he and others at Unite have gone to painstaking (and no doubt also time-consuming and expensive) lengths to verify the information in their possession.”
Another factor that may have been felt in court was the context of the electricians’ strikes: many of them unofficial, with the workers showing every sign of being ready to strike whether or not the balloting requirements had been satisfied, and irrespective of any threats made against their union by the employer.
Unions should not get too comfortable in their present position. We have come through a century of judicial intervention, almost all of which has made life more difficult for unions. Although there appears to be no Denning at present among the higher judiciary, there are plenty of Judges who could yet play that role. For the moment, the default position of the judiciary appears to be that strikes should only be injuncted where there is a real breach of the anti-union laws.