Sacred Cow

Let’s slaughter the sacred cow

Mediation may not solve every dispute but there are circumstances where arbitration should be imposed.

The Conservative manifesto promises that the government will require that a minimum service operates during transport strikes. It observed that whilst rail workers deserve a fair deal, it was not fair to let trade unions undermine the livelihoods of others.

How this will work is unclear but it plainly would require some constraint on labour law’s most sacred cow, the right to strike, which in turn is regarded as an essential element of the right to be free to associate, a cornerstone of the constitution of the International Labour Organisation (ILO).

It is therefore unsurprising that in the debate on the Queen’s Speech this proposal was attacked as unlawful by Lord Hendy QC, a lifelong advocate for trade unions, and as a dangerous precedent and a ‘slashing of workers’ rights’ by Lord Griffiths.

Lord Hendy stated that the ILO has made it clear that railways are not an essential public service in international labour law. To this idea the average commuter may be forgiven for thinking, like Mr Bumble, “if the law supposes that…the law is a ass – a idiot”. The reason is that in the ivory tower inhabited by the the ILO essential services are restricted to services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

In fact, within the supervising bodies of the ILO, whether the right to associate does include the right to strike has historically been controversial and hotly debated. It even led to a walkout by the employers’ group of the ILO’s Conference Committee in 2012. Irrespective of the views of this worthy body, however, it is time to reconsider, in a country where a huge majority of the workforce is not represented by a union, whether it is time to constrain the power of unions to impose the stress and financial and emotional damage certain strikes can cause. The recent month long action by rail workers on South Western Rail and the proposed strike over Christmas by the postal workers are examples. Past instances include the wholesale freezing of all transport facilities throughout Greater London by underground and rail workers anxious to increase their pay. The impact of these actions is entirely disproportionate to the reasons for the strikes.

As long ago as 1978 the leading jurist, Otto Kahn Freud observed that the immediate object of industrial action was no longer a particular employer, rather a strike, once the supreme example of working class solidarity, had become an attempt by one group of workers to advantage themselves at the expense of others. Union leaders have proved themselves wholly irresponsible in inflicting this pain on all and sundry and this latest small proposal by the Conservatives is an understandable response to that irresponsibility. I would go further and suggest the constraints should not be limited to the transport sector.

Obviously some alternative method of resolving disputes is required. One possibility is to make it unlawful to impose disproportionate impositions on the whole or part of the population and leave it to judges to make that adjudication. Another possibility is to require all such disputes to be resolved by a compulsory arbitration process binding on both parties, after a fixed period of negotiation has expired .

One way or another it is time for an animal sacrifice.

CMCRegistered Mediator
ADR ODR International
National Bullying Helpline MEMBER