The PCS National Executive Committee met on Wednesday 13 May to debate the union’s approach to the prospect of members returning to the office following the messages put out by the government.

The government announcement

A lot of media outlets and other commentators have already noted the confusion that Boris Johnson’s announcement has sewn. There’s a good reason to feel that this is deliberate, as it follows on from the shift whereby those previously demanding punitive action if somebody sat on the grass during their daily walk were now taking part in street parties and spectacle for VE Day. This change in the public mood, and the media portrayal of the unions as “wreckers” for wanting to protect members, suggests the propaganda war we’re up against when trying to protect the health, safety and welfare of members.

For PCS members, the major cause of concern was that head of the civil service Mark Sedwill’s message echoed that of Boris Johnson and suggested an imminent return to the workplace for all. Those members who have lost loved ones will also have had to content with Sedwill’s ghoulishly cheerful declaration that ‘the lockdown has worked.’

Fortunately, the NEC heard that despite these messages a meeting between the Cabinet Office and unions with collective agreements with civil service employers yesterday confirmed that they have no plans to move people back to workplaces in the short-term. PCS had given them an ultimatum that without such confirmation we would tell our members that the status-quo continues.

The perspectives of the TUC unions

The General Secretary gave a report back from the TUC executive where he pushed the union’s opposition to lifting of the lock-down and forcing workers back to workplaces. The response from the big unions such as Unite and GMB was predictably poor. Unison responded that “without a dynamic economy there will be no public services,” which is an extremely conservative viewpoint that frames the health, safety and welfare of workers and the services upon which the working class and society rely as subservient to the demands of capitalism.

Whilst we have many reasons to disagree with Mark Serwotka, it seems he is one of the few voices opposing this dross from the left. The unions with similar perspectives (albeit for different reasons) are the likes of the RMT, NEU, and POA – essentially, the members of the Trade Union Coordinating Group.

Our proposals to the NEC

As the meeting with the Cabinet Office was the day before the NEC, the Independent Left members on the executive weren’t in a position to amend the emergency paper which was submitted just before the meeting.

The recommendations that came with the paper were in response to the better position from the Cabinet Office and were essentially a continuation of the existing position that no member should return to the workplace and keeping members informed of the latest position and their individual rights while not committing us to a particular strategy.

Our proposals, built around how to respond in the worst-case scenario of a mass return to work, were as follows:

1. That the NEC reaffirms the union’s position that no member currently away from the workplace (whether working at home or otherwise absent) should be asked to return.

2. That the NEC reinforces that message by:

• Having Groups and National Branches broadcast it through their own communication channels.
• Writing to the heads of the civil service to reaffirm our position.
• Writing to the leaders of the devolved governments asking that they intervene to prevent the UK Civil Service breaking their national lockdowns.
• Publicising the above correspondence.
• Advising all members that, if they are encouraged to return to work, they contact their local union rep or the union’s Covid-19 hotline.

3. In the event that the Cabinet Office – or any other employer (e.g. outsourcing companies, agencies, etc) refuses PCS’s position and attempts to enforce a mass return to work, the union takes the following actions:

• A template letter is drafted for members to send if they are told to report to the workplace, citing their rights under section 44 of the Employment Rights Act 1996 – and the law or policy position of the devolved nation where a member lives and/or working in Scotland, Wales or Northern Ireland.
• Groups and national branches are asked to coordinate inspections across their areas to identify the risks (crowded public transport, unsuitability of buildings for social distancing measures, lack of PPE for facilities workers, etc) in order to issue Union Inspection Notices in response to members being forced to return to work.
• Members are provided with the UINs, advice on their legal rights, and the template letters with instructions based upon the union’s assessment of the risks in attending their workplace.
• Work with local safety reps and organisers to ensure that any refusal to attend work is done on a collective basis with as much protection as possible rather than leaving individuals to fend for themselves based only on the letter of the law and possible recourse at Employment Tribunal.

4. That the NEC highlights the disproportionate risk and impact upon BAME members of any reduction in lockdown measures and incorporates this into our political and campaigning activity.

5. That we ensure that facilities management workers are taken into account in PCS negotiations and actions at all levels.

It was broadly agreed that proposals 1, 2, 4 and 5 were covered by the union’s actions and/or overtaken by events. In relation to point 4 and 5, it is worth noting that a lot of the disproportionate risk and impact BAME members face from Covid-19 is directly connected to the impact of the crisis on outsourced and facilities management workers, as these workers who face the highest risk are far more likely to be BAME whilst the senior civil servants most able to comfortably stay at home without financial or job implications are overwhelmingly white.

Proposal 3 of course remained key, as there not only do we have to address the response of the worst employers in the interim, particularly outsourcing companies who are looking for ways out of the protocols laid down by the Cabinet Office, but we also need to prepare for the possibility of the Cabinet Office’s own position shifting in the mid-term.

The proposal was lost on the usual factional lines, with the Left Unity majority voting against whilst their former comrades who split to form the Broad Left Network voted with us.

Section 44 and collective union action

The debate at the NEC reflected a wider debate in the union movement and beyond about the utility of Section 44 of the Employment Rights Act 1996.

Unfortunately, much of the discussion on social media in particular seems to treat this right as a “magic bullet,” when the reality is not so straight forward. One website in particular is downright conspiratorial, suggesting that there is an effort to prevent the public knowing about this right, and ignoring that like all employment rights it doesn’t actually shield you from negative consequences but only allows you to take the matter to an Employment Tribunal after those consequences (such as being sacked or losing pay) have already happened.

The clear alternative to this approach is trade union organisation. The rights under Section 44 should be seen not as a panacea but as a tool we can use as part of our collective union activity. The duties imposed on management and functions of safety representatives afforded in broader health and safety legislation allow us to undertake inspections, identify risks and advise members of the appropriate course of action, including utilising the right under Section 44 where appropriate. This should, of course, go hand in hand with wider organisational and campaigning activity to bring pressure to bear on the employer.

The main argument against the IL proposals was that collectivising the Section 44 right in this way would be seen as a unofficial industrial action, potentially stripping members of their protections under legislation and resulting in significant claims against the union.

Mark Serwotka when responding to the debate essentially admitted that we don’t have the strength or membership confidence to break the union laws, but that if comrades wanted that debate then it should be honestly put. The problem with this, of course, is that the organisational strength and membership confidence to take unofficial action requires rank and file organising activity and cannot be artificially produced from a debate amongst the leadership. Our very mild proposals were made not to dishonestly broach the subject of unofficial action but in recognition of our very clear limitations in that regard as things stand.

The debate is still out about interpretation of the law, but in PCS at least the general mood is that anything bolder than informing members of their rights is unlawful and as such either shouldn’t be done at all or we don’t have the strength to do so.

Unfortunately, what this translated into was a full-time officer using the introduction of a Zoom meeting for activists to tell them what the union couldn’t do regarding section 44. “The union won’t do anything that could be considered encouraging collective action” and the General Secretary telling members the NEC don’t support a national ballot for action.

This, of course, leaves wide open the question of what we can do. It also begs the question, if we aren’t able to assert our collective strength at a time when we have never had more potential leverage, of how effective our response will be to the further wave of brutal austerity set to follow the current pandemic.