Injunction against BA strikes is a democratic disgrace

And, hot on the heels of the last post, we have proof that class defiantly still does matter in the decision of the High Court to block the proposed action of BA Cabin Crew. I am going to use The Times for my quotes for this piece because it can hardly be said to be a paper that would be naturally sympathetic to the strikers aims. However, according to the reporting of this paper it can be seen that there are clear grounds for the decision being branded a ‘disgrace’ in democratic terms.

According to The Times the action was backed by a majority of “nine-to-one”; a quick excursion into the realm of maths tells us that of the 13,000 cabin crew balloted 11,700 voted for the action. Furthermore, it reports that the grounds for the denial is the acceptance of some 800 ballots from crew who had already accepted voluntary redundancy. So, if they are subtracted then that produces a vote for action of 10,900; 800 invalid ballots and 1,300 against. Democracy therefore does demand the action be allowed to go ahead.

However, the judge presiding felt otherwise;

 Mrs Justice Cox said it seemed clear from the evidence that the union was aware, or certainly should have been, that the ballot of 13,000 cabin crew included a substantial number of those who were shortly due to leave, but she added that there was no evidence to suggest that there was a clear decision to include them.

However, it is clear from other parts of the report that the judge ruled on far more than the law requires her too;

Mrs Justice Laura Cox said that a 12-day strike over the busy Christmas period would have caused more damage to both BA and the public than at any other time of the year.

(…)

There was “insufficient evidence” to support the allegation of intransigence on the part of BA, adding that she did not consider it right to describe the breaches in the case as technical.

In other words it is made quite clear in these passages that she was influenced in her judgement by her own subjective view not of the law but which party to the industrial dispute she felt had the most valid case. So, in short the law moves from being a neutral player in industrial relations to its arbiter and that is quite wrong though not unexpected to the cynical.

Nobody should doubt whose side The Times is on. It offers this unsubstantiated caveat to the facts its forced to report as is;

Cabin crew have privately admitted that they had not anticipated the severity and length of the industrial action when they voted in favour of strikes on Monday this week.

Given the above it is hard not to see Derek Simpson’s point when he accuses the High Court of representing BA’s interests. Current legislation is not neutral in these matters and does not place the law above industrial relations; if it did then the strike would be going ahead. Legislation that is supposed to be ‘balanced’ is fundamentally unbalanced and must be changed so democracy is not the victim of such a fundamentally unjust though possibly technically ‘correct’ ruling like this again.

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About darrellgoodliffe

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5 responses to “Injunction against BA strikes is a democratic disgrace”

  1. DerekGoodliffe says :

    Your comments are spot on,again!, but the unions do need to learn, they need to take into account public oppinion, and that is the reason they,{that is the unions} sometimes slip up in calling for action at times leading up to xmas and the like, they should not forget that is an important factor to have public support,but none the less,as you state, Justice Laura Cox came up with an interpritation that was not democratic,but also that does not suprise me either.
    It does not alter the fact that workers still need to have their democratic rite to take action over their pay and conditions.

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  2. EmpLawyer says :

    Section 227 of the Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) governs the position on who is entitled to vote in a ballot. In summary, s227 says that only those members of a trade union who will take part in the industrial action are entitled to vote. Applying this to the BA case, it means that those 800 or so members who had accepted a voluntary redundancy package and would no longer be BA employees over the proposed 12 day strike period were not entitled to vote.

    Now, the fact that some of them did was not fatal to the strike as s232B provides a mechanism by which small, accidental failures under s227 can be disregarded if two criteria are met: (1) the failures must be accidental and (2) they must be on a scale which is unlikely to affect the result of the ballot.

    As Darrell has pointed out above, there is no doubt that the 800 votes would have made no difference to the outcome even if all had voted against the strike action. So that just leaves the question of whether or not Unite’s failure to restrict the ballot to only those who were entitled to vote (i.e. not allowing the 800 to vote) was accidental? I’m still waiting to read the High Court decision but I suspect from what the newspapers have reported that Unite knew that there were some 800 or so members who had accepted voluntary redundancy but they (Unite) did not have the time to put in place measures to stop those 800 from taking part in the ballot. Remember, Unite were up against the clock as they desperately wanted the ballot to take place before Christmas in order to put BA in as difficult a situation as possible. Therefore, I suspect that Justice Cox found that the failure was not accidental and therefore the test in s232B was not satisfied and the ballot was therefore invalid.

    Some people (like Darrell and Derek Simpson) call this a technicality and say that Justice Cox was somehow acting outside of her vires by commenting on the length and timing of the proposed strike. Derek Simpson even had the cheek to say that this was a bad day for democracy! It was a flagship day for democracy in the sense that the law, as enacted by Parliament following a democratic process, was upheld by an independent judiciary! The fact that they don’t like the decision is an entirely separate matter. Justice Cox’s comments were what lawyers called ‘obiter’ i.e. that they do not form part of the legal rationale for the decision but are just background comments. Judges do this all the time – it is not a sign of bias or misapplication of the relevant law.

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  3. darrellgoodliffe says :

    I agree about unions needing to take account of public opinion.

    EMP,

    I do not doubt a level of technical grounding for the descision. What I do doubt is your last paragraph. The case hung on whether the judge thought the union should reasonably have been able to ascertain the ineligability of those 800 people. Given the clearly pre-judgmental ‘background remarks’ it is clear that the descision that they reasonably should flowed from sympathy for the BA position which was outside the remit of the law.

    It’s simple cause and effect really and for you to deny that link is bordering on being willfully naive. As for your comments about this being a glorious day for democracy nothing could be further from the truth. How can you say that when the democratically expressed wishes of a clear majority (something you acknowledge) have been trampled over by a court of law?

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  4. EmpLawyer says :

    Darrell

    If you think that Judges are able to simply decide a case on the basis of their own political views then you are very naive in terms of how our legal system works. Remember, both sides in this dispute were represented by Queen’s Counsel who are experts in arguing their interpretation of the relevant law in a way which suits their own client’s best interests.

    It was a glorious day for democracy in the sense that legislation which was enacted by Parliament follwoing a democratic process was then followed to the letter by an independat court. The fact that you (or the BA cabin crew) do not like the decision does not make it undemocratic. One side in every dispute in court tends to not like the outcome – that is not sufficient to make it undemocratic. Democracy does not work according to the varying whims and interests of minority groups (and the BA cabin crew were a minority group in terms of the interpretaion of this legislation which applies to the entire population).

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  5. darrellgoodliffe says :

    EMP,

    No, sadly I have to say it is you that are naive if you believe things are judged in vacumn; seperated from the judges prejeudices and politics. I know that is the case but that doesnt change what I said above.

    I agree it doesnt; what does is the case I make above, that this court overuled the wishes of a democratically expressed majority. Would you be celebrating if they had annulled a election on similar grounds? I think not. Funny definition of a minority group; over 90% of those eligible to vote.

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