Out-Law News | 13 Sep 2017 | 2:55 pm | 2 min. read
Unite general secretary Len McCluskey described the 50% turnout requirement introduced by the government in March as "artificial" in comments made at the Trade Union Congress in Brighton this week. He also warned that the public sector was prepared for co-ordinated strike action over a 1% cap on annual pay increases, introduced by the government in 2013.
Speaking to the BBC at the event, McCluskey said that co-ordinated action by the public sector was "very likely and very much on the cards".
He said that the union would "always stand shoulder-to-shoulder with our members"; and that "if the government have pushed us outside the law they will have to stand the consequences".
The Trade Union Act came into force on 1 March. It introduced a 50% voting turnout requirement before trade unions can proceed with industrial action, an additional threshold requiring 40% support for industrial action among non-ancillary staff regardless of turnout in relation to "important public services", and a number of other commitments made by the last Conservative government in its pre-election manifesto.
Other union leaders, including Mark Serwotka of the PCS and Tim Roache of the GMB have reportedly given their support to McCluskey's comments.
Labour relations expert Sarah Ashberry of Pinsent Masons, the law firm behind Out-Law.com, said that although the comments had been sparked by the ongoing dispute over public sector pay, the threat was "equally relevant in the private sector, where Unite also has a lot of members".
"If a group of workers voted strongly in favour of strike but narrowly missed the 50% turnout figure they now need, the suggestion is that they have a 'moral' right to strike, in defiance of the law, and could be backed to do so by their union," she said.
"We have previously seen high profile cases where employers have gone to court for an injunction to stop strike action, arguing that a ballot has been defective. If the unions carry out this new threat to ignore the ballot requirements altogether, that greatly increases the scope to bring court challenges to halt a strike. This could be a huge risk for Unite and others, given the threat of damages claims against the union as well," she said.
However, Ashberry said that the issue was not as simple as whether unions would or would not lend their explicit support to illegal strikes. Workers can, and do, strike on a 'wildcat' basis, without a proper ballot, although such action is fairly rare and is usually 'repudiated' by the relevant union, she said.
"If unions don't repudiate illegal strikes, they face big risks," she said. They can be sued for up to £250,000 for the damage caused by the strike - for example, the extra costs or damage to businesses. In addition, action that takes place in defiance of an injunction could lead to fines on the union for contempt of court and possible sequestration of assets."
"Len McCluskey is on record as saying he has 'never repudiated striking workers in his time as general secretary, and it has also been quoted that he has a £36 million war chest for lengthy disputes. However, it remains to be seen whether any actual employees would be willing to participate in unlawful industrial action, given that they would not enjoy the usual statutory protection from dismissal," she said.
This week, the government confirmed pay increases for police and prison officers above the 1% cap, although the increases are still lower than the 2.9% rate of inflation recorded in August. It also said that other parts of the public sector would be allowed "more flexibility" in relation to pay increases, particularly in areas of skill shortage.
Unions backed a TUC motion calling for a 5% pay increase for all public sector staff this year.