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Saturday 23rd
posted by Morning Star in Features

KEITH EWING explores how legal changes in the 1980s let corporations crush their workers

THE Wapping dispute was the third major event in the 1980s to expose just how much the balance of power had swung to business and government under the Thatcher administrations.

Preceded by the GCHQ trade union ban in 1984 and the miners’ strike in 1984-5, Wapping revealed the extent to which ruthless employers could move with relative impunity against workers and their organisations.

From a legal point of view the Wapping dispute was a drama of two parts. The first was the role of the law in the management of the dispute, in what looks like a well-planned move to relocate from Fleet Street. Although the print unions and the NUJ were recognised at the time (and had made a number of concessions on job flexibility and dispute resolution), there was nothing to stop News International from relocating without agreement and derecognising the union.

Similarly, as a leaked letter at the time (to the Morning Star) from News International’s lawyers made clear, “dismissing a man on strike” has a “number of advantages” — he will not be entitled to a redundancy payment or to bring a claim for unfair dismissal.

In order to minimise any legal risk to the company that might be associated with the firing of thousands of workers, the same lawyer advised “having piles of dismissal letters at exit doors” on the day the action was called.

Labour laws then in force thus enabled the company to relocate with impunity, and to start afresh with a replacement workforce (the Electrical, Electronic, Telecommunications and Plumbing Union helping to supply the labour).

But the labour laws also empowered the company to face down the inevitable barrage of resistance, the power drawn from the legal system being all the the more significant for the fact that this was wholly defensive action on the unions’ part.

It was only since 1982 that injunctions could be granted against trade unions in trade disputes such as this. Here many were issued, for a number of reasons — in some cases because they were unsupported by the strike ballot rules that had been introduced by the Tories in 1984, and in other cases because they violated the restrictions on secondary action introduced in 1980. (It was not until 1990 that all forms of secondary action were banned).

So injunctions were granted to stop various forms of solidarity action — against Sogat 82 which had instructed members at wholesale depots not to handle News International titles; against the NGA which had instructed members not to handle News International titles at various places where they were being printed under contract; against the TGWU which instructed its drivers not to cross picket lines at News International; and against the Union of Communication Workers which was refusing to distribute Sun bingo cards.

In most cases the injunctions were reluctantly complied with. But not in the case of Sogat 82, which was found to be in contempt of court. In what was described by the judge as a “draconian measure,” the union nevertheless had its assets sequestrated, with a London firm of chartered accountants appointed to conduct the sequestration.

This was the penalty for refusing to comply with the injunction and for showing no contrition for its failure to do so.

The second half of the drama relates to the revolutionary longterm implications of the dispute, revolutionary in the sense that it shot to pieces trade union complacency about our ability to function without legal support. “Voluntarism” was dead, and few turned up to mourn.

A man called Jacques Delors appeared a few years later to offer hope of protection within the European Union. But that is another story for another day. The problems exposed by Wapping could not be resolved by Europe — the two immediate problems being the right to bargain and the right to strike.

The former led to intensive efforts to devise a new legal framework for trade union recognition, contributing eventually to the TUC policy on Representation at Work, which in a heavily diluted form was introduced by the Blair government in the Employment Relations Act 1999.

Ironically, however, that procedure provides no solution to the News International problem, to which in large measure it is a response. This is because the legislation enables employers (in the view of some in breach of ILO standards) to set up staff associations in order to exclude independent trade unions from their businesses. News International had done precisely that — it created a body called the NI Staff Association for collective bargaining purposes. There is still no print union presence at News International.

The other Wapping problem was the dismissal of strikers. That too was addressed in the Employment Relations Act 1999. No longer would trade unionists in this country think it acceptable that employers should have an immunity from unfair dismissal claims when sacking workers because they were on strike.

Provided the strike is lawful, workers in some cases now have the right to compensation, if not reinstatement. But ironically that too was shown by the dispute at a small company in north Wales in 2001 to be flawed — workers were denied their legal rights following a successful unfair dismissal claim.

On that occasion 86 workers, dismissed by the company while on strike, were thwarted when the company they had sued went into liquidation, and subsequently re-formed with a similar name, buying back the assets (but not all the liabilities) of the liquidated company.

The real legacy of Wapping, however, is what it tells us about the power of employers and the powerlessness of unions without real rights. True, derecognition was part of the story, as was the mass dismissal of strikers. But these were only symptoms of the deep underlying problem, which was the inability of the unions to compel the employer to negotiate about changing work practices, and the inability of the union to protect workers’ jobs.

The major gap in our labour law — the elephant in the room — was the difficulty for unions easily to take even defensive solidarity action by enlisting members employed elsewhere in the industry to support them when in need. The duty to help others in distress is the very essence of trade unionism, but it is a fundamental principle still denied to British trade unionists.

Wapping is a continuing reminder of why solidarity action is important, and why it needs to be restored. That is the real legacy of Wapping for labour lawyers today.

  •  Keith Ewing is is professor of public law at King’s College London and president of the Institute of Employment Rights.