The Trade Union Bill and Social Media

The Trade Union Bill and Social Media
Christian Fuchs

Creative Commons Licence
The Trade Union Bill and Social Media by Christian Fuchs is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License. Based on a work at http://fuchs.uti.at/1518/.

The British government is planning to introduce legislation (“Trade Union Bill”) that reforms the planning and conduct of industrial actions.

In British legislation, a law passes through five stages in the House of Commons: the
first reading, second reading, committee stage, report stage, third reading. On September 14, 2015, the bill passed the second reading and with 317 yes-votes (“Aye”) and 284 no-votes (“Noes”) moved into the committee stage.

The Trade Union Bill suggest to change the Trade Union and Labour Relations (Consolidation) Act 1992 so that a 50% turnout is required in the strike ballot for industrial action to be legal (Trade Union Bill, §2) and a support of 40% of all persons entitled to vote is required in “important public services” (§3). Important public services include according to this bill draft health services, education of those aged under 17, fire services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, border security (§3 [2F]). The draft also wants to introduce union members’ opt-in to contribute to political funds (§10). And it says that unions must appoint a picket supervisor, who wears a badge at the picket line, make him or her known to the police, and ensure that s/he is readily contactable by the police during the picketing (§9).

The government and the opposition fundamentally disagree on the Trade Union Bill. The Secretary of State for Business, Innovation and Skills Sajid Javid (Conservative Party) argued:

“Despite what people may have read in some reports, this Bill is not a declaration of war on the trade union movement. It is not an attempt to ban industrial action. It is not an attack on the rights of working people. It will not force strikers to seek police approval for their slogans or their tweets. It is not a reprise of Prime Minister Clement Attlee sending in troops to break up perfectly legal stoppages. It is simply the latest stage in the long journey of modernisation and reform. It will put power in the hands of the mass membership; bring much-needed sunlight to dark corners of the movement; and protect the rights of everyone in this country—those who are union members and those who are not, and those hard-working men and women who are hit hardest by industrial action”.

The Shadow Secretary of State for Business, innovation and Skills Angela Eagle (Labour Party) argued in contrast:

“The Bill is draconian, vindictive and counterproductive. It is: ‘very provocative, highly ideological and has no evidence base at all’. […] Liberty, Amnesty and the British Institute of Human Rights have all said that the Bill’s purpose is to ‘undermine the rights of all working people’ and amounts to a ‘major attack on civil liberties in the UK’. […] The Bill has been criticised for being OTT, with parts of it resembling the dictatorship of General Franco. […] This is another gagging Bill, and those of us who care for the health of our democracy and civil society are united in opposing it. […] The Bill is a divisive piece of legislation which undermines the basic protections that trade unions provide for people at work. […] The Government are pushing through an agenda of attacking civil society, intimidating charities, threatening basic civil liberties, and undermining access to justice. These draconian measures must be stopped, and I urge the House to deny the Bill a Second Reading”.

London’s Conservative mayor and MP for Uxbridge and South Ruislip  Boris Johnson argued: This is an excellent Bill—a serious, sensible Bill”.  Johnson has repeatedly argued in the context of strikes by London transport workers that industrial action in key sectors should be made more difficult and has argued for parts of the legislation the Trade Union Bill wants to realise: “We failed for years to come up with up with proper legislation on thresholds for strikes by essential public services […] This is something I wanted the coalition to do from the very beginning. We haven’t been able to do that and I’m reconciled to that now”. If the key public services rule were applied to the election of MPs, then Boris Johnson would not be in office: He received 50.2% of the votes with a turnout of 63.4%, which means that effectively he achieved  31.8% of the eligible votes. One wonders why parliamentarians, who enact the key political public service, apply rules to trade unions in key public services that do not apply to themselves.

A consultation document associated with the Trade Union Bill suggests that unions have to provide advance notice to authorities it they employ social media in industrial actions: The Department of Business, Innovation & Skills talks in this  consultation document about “a broader question regarding how the Code can be modernised to ensure it covers social media, provides guidance on protests linked to pickets, and makes clearer rights and remedies for non-striking workers, the public and businesses as well as picketers”.

“The Code [of Practice on Picketing and Protests] has not been updated since 1992, and so pre-dates the development of social media. […] The Government is reforming and modernising the rules relating to picketing and associated protests to ensure they cover social media, to make sure they apply to protests linked to pickets, and to make clearer rights and remedies for non- striking workers, the public and businesses as well as picketers. […] Non-striking individuals having photos taken as they cross pickets and posted online as 
a form of public shaming (the current Code pre-dates the rise of social media)”

§25 specifies:
“The Government seeks views on a requirement for a trade union to publish their plans in relation to picketing and protests each time industrial action is called. Such a requirement could be introduced by amending the Trade Union and Labour Relations (Consolidation) Act. Unions would need to take into account factors which would be set out in a revised Code. These could include:
* Specifying when a union is intending to hold a protest or picket
* Where it will be
* How many people it will Confirmation that people have been informed of the strategy
* Whether there will be loudspeakers, props, banners etc
* Whether it will be using social media, specifically Facebook, Twitter, blogs, setting up 
websites and what those blogs and websites will set out
* Whether other unions are involved and the steps to liaise closely with those unions
* That the union has informed members of the relevant laws”.

The document says explicitly that the “Government believes this step could mitigate some of the risks of protests linked to trade disputes by enabling better policing, without preventing them taking place”. This implies that the government intends to monitor union activists on social media. It is also unclear what is meant by “what […] blogs and websites will set out”. It sounds like unions should specify how exactly they use the Internet in protests. This formulation clearly misunderstands the very nature of the Internet and social media. Social media are dynamic and public, they not just allow union members who are on strike to communicate with each other and the public, but also allow the public to comment on the events, to share information, images and videos, re-tweet Twitter postings, etc. A strike thereby is not limited to a specific locale and specific unionized worker, but becomes a public event.

The UK Government argues that in the light of the digital age it aims at “modernising the rules relating to picketing and associated protests to ensure they cover social media”. It however sounds like “modernising” means traditional politics of control that have the potential to limit the freedoms of assembly, association and speech – both offline and online. If users show solidarity with a strike by spontaneously creating and using hashtags on Twitter and spreading information, then this cannot be planned in advance. The formulations in the consultation document sound like any online activity in the light of strikes that is not reported in advance shall be outlawed. Given the dynamic and unpredictable nature of the Internet, the document profoundly misunderstands the nature of social media. What it suggests is not a modernisation, but way of controlling and thereby limiting the freedoms of online information, online assembly and online association of both striking workers, their unions and those showing online solidarity with them.

Social media liquefies the boundaries between the work place, where strikes take place, and the public. Given the liquid nature of social media, legal requirements to report the use of social media in strikes have the potential to outlaw public communication about strikes. Policing social media by implementing surveillance of activists and striking workers has strongly authoritarian political potential. Such policies do not modernise the governance of social media, but threaten basic civil liberties in the Internet age and completely mistunderstand the very nature of such modern communication technologies.

The question that arises is if the formulations in the consultation document violate Articles 10 and 11 of the European Convention of Human Rights:

“Article 10 – Freedom of expression:
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 – Freedom of assembly and association:
(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

In the Trade Union Bill’s second reading, both government and opposition MPs voiced criticism of the document’s suggestions about social media.

Clive Lewis (MP for Norwich South, Labour Party) argued: “Those who seek justice at work will be tracked and treated like criminals, their social media monitored and their details shared with police. Those who protest will be forced to wear identifying marks and carry letters of authorisation”.

David Davis (MP for Haltemprice and Howden, Conservative Party) said:I also want to raise the issue – it is in consultation at the moment, but because the consultation has been fast it may turn up as a Government amendment later – of restricting the actions of unions on social media. This proposal strikes me as both impractical – how on earth would it be done? – and asking for judicial trouble. There will be judicial review if this line is pursued. It has been argued that the measure is there to stop bullying. Well, fine – then pass a law to stop bullying and intimidation, but make it affect everybody, not just trade unions. We already have quite a lot of laws to prevent intimidation”

Labour Party-Leader Jeremy Corbyn commented:

“Because by calling into question the right of free association of trade unions they are actually in contravention, in my view, of Article 11 of the European Convention of Human Rights.  They are also in contravention, as Stephen pointed out in his reply yesterday, to the International Labour Organisation conventions.  So we are going to continue our opposition to this.  They are threatening the right of peaceful protest by looking to criminalise picketing.  They are even threatening the right to free speech by seeking to limit what a union member can say on social media during a dispute.  Are we really going to have teams of civil servants or lawyers or police or somebody trawling through massive numbers of twitter messages, Facebook messages, to find something somebody said about their employer or about an industrial dispute?  What kind of intrusive society are they really trying to bring about.  We have got to fight this Bill all the way, because if they get it through it’s a damage to civil liberties and for everybody in our society.  They will use it as a platform to make other attacks on other sections of our community. Let’s be strong about this.  […] When we have been elected with a majority in 2020, we are going to repeal this Bill and replace it with a workers’ rights agenda and something decent and proper for the future”.

Public, semi-public and private online communication on social media is an important part of 21st century freedom of association, assembly and speech in the Internet age. Workers going online as part of strikes engage in a particular form of digital labour: labour-forces going digital in strike action. In industrial action, online communication on social media and other parts of the Internet is part of digital labour association. Attempts to limit, control and monitor the legal and legitimate use of social media in strike action has the totalitarian potential to limit the freedom of digital labour’s association. Digital workers of the world have to unite in order to defend the freedoms that are the outcomes of long and hard working class struggles.

A petition against the Trade Union Bill can be signed online.

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