WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Striking for Rights

Striking for Rights

Bataille, the pit pony in Zola’s Germinal, is a uniquely tragic figure in French literature.  Taken down to the pit as a colt, he lived out his life in the subterranean landscape, left with only a ‘confused recollection of the sun burning in the air’.  As Bataille’s memory of the sun fades, so does his eyesight, taken by the endless night, and he lumbers through the tunnels on instinct alone. Without any choice in the matter, nor any way of resisting, Bataille can do nothing but toil in misery, awaiting his death.  This comes at the novel’s climax, when the collapse of the mine’s flood defences sends water surging through the tunnels.  Fleeing through the maze of tunnels, the horse is finally ‘hemmed in and garrotted by the earth’ , and as the floodwaters rise, his panicked brays eventually give way to a desperate silence.

It is a workers’ strike that leads to the death of Bataille, but Zola absolves them of any real guilt.  They, like Bataille, have been condemned to toil in the dark of the mines by their aristocratic and bourgeois masters.  Unlike Bataille, however, the workers do have one lever to pull – the decision to strike.  If they down tools, they can hope that by withdrawing the labour, their masters will be forced to the negotiating table, and to lessen the brutality of their working conditions.

Making such a choice is fraught with risk, however.  Despite the dire poverty of their situation, the workers are still terrified of what striking would for them and their ability to house, feed, or clothe themselves, let alone for their future prospects of work.  As their living conditions worsen, this fear recedes, as they tell themselves that life cannot get any worse.  But rather than change their prospects, the strike only realises their worst fears, with their fundamental needs superseding their desire for dignity at work, and with the miners forced back to work in conditions where their lives are more parlous than ever.

Much of this failure is because the workers struggle to act in concert.  Some refuse to strike at all, seeing any work as better than no work, while others cross the picket-line or vacillate between labouring and resisting.  Only Etienne, the prime mover of the strikes, consistently understands the need for the universal downing of tools.  He knew that so long as some workers were willing to clock in, the strike could only ever fail.

Working conditions in the western world today may be some way removed from those of Europe in the 19th century, but the conditions that make for an effective strike are the same as they ever were.  For a strike to instigate any real change, they need the overwhelming majority of workers to join the picket lines. The employers must be pushed to negotiate by being unable to fulfil their contracts and obligations elsewhere. So long as some basic standard of service is maintained, the pressure that the workers hope to bring to bear on their employer will dissipate into nothingness.

This is why the Conservative government’s draft legislation on strikes is so devastating.  It cuts the knees out from the workers – in any industry – that wish to strike. The bill maintains the superficial reality of strikes but strips them of any real force.  Under the proposed legislation, a Secretary of State would be given the power to impose ‘minimum levels of service’ in six key areas – health, transport, border security, emergency services, education, and nuclear power.  Critically, these minimum levels would not be fixed in advance. Rather, they would be set through Henry VIII powers – which allow the government to change laws without going through Parliament – allowing ministers to change the requirements for lawful industrial action with little scrutiny or restraint.

Much of the need for the broad Henry VIII powers, rather than clear legislative standards, comes from the fact that the government doesn’t know what it wants this bill to achieve.  Grant Shapps, the Secretary of State for Business, told the House of Commons on Monday that the bill was targeted at ‘blue-light’ services, but its provisions reach much further than this.   Nor is it as though strike laws in the UK are overly generous already.  While much of the focus has been on the government slashing away at workers’ right to strike, this ignores the fact that there is no ‘right’ to strike per se.  Instead, the Trade Union and Labour Relations Act 1992 protects striking workers from being sacked and the unions that encourage them to break their contracts from being sued – provided they strike in accordance with the legislation.

In order to be lawful, unions must conduct a secret ballot under the scrutiny of an independent official, having given the employer at least seven days notice. In this ballot, over half of the members entitled to vote must turn out for the result to be valid, while if the strike concerns public services – industries much the same as those in the government’s proposed legislation – at least 40% of all those entitled to vote must also cast their vote in favour of the action.

If the government has its way, a union that jumps through all of these hoops can still have its strike deemed unlawful on the say-so of a cabinet minister.  The bill would strip away the protections contained within legislation and would expose workers to the political whims of the government. While this is concerning enough, what is more disturbing is who the government has chosen to target.  Rather than focussing on unions – which are relatively well funded and able to resist some government pressure – it places pressure on individuals.  The bill would not penalise the unions, but the workers, by putting them at risk of dismissal.  Under Schedule 8, workers who are given notice by their employer that they are required to work on a strike day could be dismissed, with the bill stripping away their ‘automatic protection from unfair dismissal’.

Core services are already significantly insulated from the risk of strikes.  As well as the 40% requirement, introduced in the Trade Unions Act 2016, some public services – like the army and the police – are forbidden from striking.  Nor have workers in other services, like healthcare, been reckless in their willingness to strike.  The recent nurses strike was the first time nurses have ever withheld their labour, while the paramedic and ambulance-workers strike is equally unprecedented.  People employed in these professions do not enter them out of a desire to get rich, but out of a sense of public duty.  The fact that people like this, who dedicate their lives to caring for others, are voting to strike is not a reason to curtail strike laws even further, but to consider why they are striking at all.

Ministers might want to claim that strikes like these put the public at risk, but they ignore the elephant in the room.  Workers in key services are striking because the public are already at risk.  So long as key services are understaffed or key workers are underpaid, providing an effective and safe service is impossible.  Teachers that are teaching too many hours, or that are responsible for too many children will see the quality of their teaching drop, while the consequences for those being treated by underpaid or overworked nurses and doctors will be even more dire.

The fact that more public services are striking than ever before does not reveal feckless or greedy public servants, but instead yanks back the curtain on the consequences of endless austerity.   As a consequence of years of cuts, the public realm is no longer fit for purpose, and those employed in it are no longer willing to shoulder the weight of the burden.  Rather than engage with this, the government’s response is to draft broad legislation, giving almost unfettered power to cabinet ministers to enact laws governing strikes on the fly.   This bill just underlines what Rishi Sunak’s agenda-setting speech at the start of the year showed us – that we are led by a Conservative government that is out of ideas, and should be out of office.