The Government's proposals for amending the law on the closed shop and other trade union matters will not be presented to Parliament until later in the year. In the meantime a ‘consultative’ document has been issued for discussion with the CBI and the TUC. Its suggestions on the closed shop closely follow the lines taken by the Secretary of State for Employment, James Prior, in an interview given to the Sunday Telegraph before the election — a secret ballot before the closed shop is introduced; a worker to have the right to refuse to join a union on grounds of deeply held personal conviction; dismissal for refusal to join a union to be ‘unfair dismissal’ against which he or she can appeal; and right of appeal to the High Court for damages against a union which unfairly refuses a union card.
What is interesting about this is its indication of how the Tories have changed their attitude on the closed shop (and on other trade union issues) away from their earlier sweeping condemnation.
This had already become evident in the closed shop clauses of the Tory Industrial Relations Act 1971 and in their attitude at the October 1974 general election, after the Labour government had repealed most of the Act’s provisions and enacted the Trade Union and Labour Relations Act 1974 in its place. The October 1974 Tory election programme announced that if they won the election they would not re-introduce their 1971 Act but would “accept the Trade Union and Labour Relations Act introduced by the present government and sensibly amended by Parliament as the basis for the law on trade union organisation”.
Change of Attitude
Prior in his interview stressed this change of attitude. While saying that new Tory legislation would “protect workers from dismissal because they refuse to join a union operating a closed shop”, he went on to reject demands from some of his own party for the complete banning of the closed shop.
I am absolutely convinced that that would be the wrong way to proceed. It would be flying in the face of the evidence of the past few years of how industry works. Most firms want it because they are dealing with one group representing the whole work force. We are right to say that the closed shop is here to stay but we can modify it by law. (Sunday Telegraph 18 February 1979)Mr. Prior’s line is the one taken in the Report of the Royal Commission on Trade Unions 1968. They rejected the idea of making the closed shop illegal on the grounds, among others, that such a law could not be made effective. This was shown while the 1971 Tory Act was in operation; many illegal closed shop arrangements continued to operate on the basis of an ‘understanding’ between employers and unions.
But the 1971 Act itself, while it laid down the principle that every worker should have the legal right to join a union or not to join a union, nevertheless provided for the establishment of certain forms of the closed shop including ‘agency shop’ agreements between unions and employers which (after a ballot) make union membership part of the terms and conditions of employment.
The clause about a worker’s right to refuse to join a union on ‘conscientious’ grounds was taken over by the Tories from the Labour government’s 1969 policy statement In Place Of Strife. This proposed that such workers be allowed to pay contributions to a charity instead of to the union, and if dismissed for not joining the union were to be entitled to compensation along with other workers ‘unfairly’ dismissed.
Since the last legislation on the closed shop, a new problem has arisen. A railway worker sacked by British Rail for refusing to join a union took his case to the European Commission of Human Rights, claiming that “the closed shop laws violate fundamental freedoms”. The Tory Solicitor-General has attended the court but it has not been disclosed what submissions he made. If the outcome of the case is that the Commissioner rules in favour of the sacked worker being entitled to compensation and not to reinstatement, it would present no particular difficulty to Prior in his new legislation.
An early form of the closed shop was in the skilled craft occupations, in which workers had to serve apprenticeship before being regarded as qualified. A frequent dispute between the unions and employers was about the number of apprentices, the employers seeking to increase the number and the unions to restrict it.
Later the closed shop took other forms and became more widespread as the number of trade unions multiplied, including the more common form in which non-members can be employed but then have to join a union. The Royal Commission’s report estimated that two-fifths of trade union members were covered by closed shop agreements or ‘understandings’. The number has increased since 1968.
As far as the law is concerned, the issue came up half a century ago through the action of local councils under Labour Party control agreeing with the unions to employ only trade union members. This was prohibited by the Tory Trade Disputes Act 1927, which the Labour Party repealed in 1946.
One of the consequences of compulsory union membership is that workers who refuse to belong to a union, or who come into conflict with their union, may lose their jobs. In May 1978 machine minders who refused to return to work at The Observer were threatened by the National Graphical Association with disciplinary proceedings.
Not only would other members of their union be summoned to do their work but they would also lose all casual employment in Fleet Street, which in some cases could mean entire loss of livelihood . . . (The Times 20 May 1978)In a similar situation at British Leyland, members of the AEU on unofficial strike were threatened with expulsion and ordered to give assurances to return to work.
If these assurances arc not received, the men will lose their jobs under Leyland’s closed shop agreement. (Daily Mail 4 September 1978)In his interview in February last, Prior made a point of defending the action of the National Graphical Association in taking disciplinary action against its members on unofficial strike.
It only needs to be added that whatever may seem to be the advantages of compulsory trade union membership imposed by the union or the employer, the interests of the working class are best served by seeking to expand union membership on a voluntary basis only.