Striking Options: on discontinuous indefinite action
On 12 January, UCU’s Higher Education Committee (HEC) will take the next set of decisions about how to proceed with industrial action in the #UCURising campaign. A Branch Delegates Meeting (BDM) is scheduled to take place on 10 January.
Branch officers have been encouraged to consult their members ahead of the BDM; to discuss the issues and options, to review the possible next steps and what they might mean.
While the questions circulated for consultation provide two distinct options, there are currently at least four strategies in circulation among the membership and all warrant consideration
This post expands on one of these four options: Discontinuous Indefinite Action, as distinct from Indefinite Strike Action. We view this proposal not as a departure from the original HEC proposal (for indefinite action), but as an amendment, formed through debate and creative thinking, following the belated announcement of the HEC’s 2 November 2022 decision.
The last Branch Delegates’ Meeting, held on 31 October 2022, voted strongly in favour of escalating action for the period of our six month industrial action mandate. In light of this, as well as other sources of information provided to HEC such as representations from members and branch motions communicated to us, the HEC passed a combination of proposals: a small number of days of strike action in the Autumn term, and an escalation to indefinite strike action at the beginning of the Spring term.
Importantly, HEC’s approach included the notification to employers in November, which had three purposes:
- to increase our leverage in negotiations in November and December
- to support a public facing campaign around the messaging that employers had 60 days to resolve these disputes
- to allow several months to prepare members for indefinite action, and to refine plans for this action.
Connected to point 3, HEC authorised a Branch Delegates Meeting in January, which would allow branches to take stock of the first tranche of action in November, any progress in negotiations to date, and to revise and refine our plan for action (and notifications) if necessary. It is vital that members be informed of crucial decisions in a timely manner. As such the authors call for the upcoming decisions of HEC to be communicated as soon as possible following the upcoming 12 January meeting.
While it is unfortunate that notifications were not issued when HEC authorised, thereby shortening the timeframe for discussion, members still have a vital role in the time we do have available. In that spirit we write together as a group of existing members of HEC, and as candidates for HEC and for national office, who are not factionally aligned. We put forward a case for “indefinite discontinuous action” for members’ consideration. This is a proposal which the HEC members among us have tabled for consideration at the next HEC, as we believe it is in line with the hard-hitting and escalating action against our employers that members supported at the last BDM, and which HEC originally voted for, but it is also refined to make it more affordable for members and for the national Fighting Fund.
What is ‘indefinite discontinuous action’?
Industrial action may be continuous or discontinuous, as defined by TULR(C)A 1992 (see here).
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This proposal calls on members to strike for an open-ended period [indefinite] but for strikes to be called on four days per week. In other words, one working day would be observed per week, and that working day would rotate. This rotation is designed to reduce any disproportionate impact on part-time and variable hours workers. It will also ensure that any regular events scheduled for a particular day of the week, such as teaching or weekly meetings, would only happen once every five weeks. We believe that the impact on employers would be similar in practice to striking five days per week, as it is not possible to conduct any meaningful fraction of our work activities in a single day each week, especially given the already-present pressures on timetabling in Higher Education. Members are already taking action short of a strike (ASOS), which would continue during the one day per week they would work under this proposal. We anticipate that the one working day each week would be filled by members working only their usual hours in line with the notice UCU has already served for Action Short Of Strike (ASOS). This action classes as indefinite, because we would inform employers that we will keep notifying and taking action until they settle.
What are the advantages of ‘indefinite discontinuous action’?
We believe that ‘indefinite discontinuous action’ is the best possible option to maximise disruption for employers whilst reducing the impact on members, for three key reasons:
- Deductions for strike pay are usually calculated at 1/365th of salary (acknowledging members’ work outside of ‘normal’ five-day-week patterns). Since the November HEC decision, discussions among branches who took part in the MAB last year, and the subsequent threats from QMUL Management, indicate that that some employers may use this reasoning to ‘justify’ taking continuous deductions for continuous action (i.e. all-out strike on every working day) and so mean the loss of all pay for members for the duration of the action, including weekends. However, discontinuous action of four days per week makes it more difficult for employers to pursue such a punitive response. Working one day per week means members should only be deducted for four days at a rate of 1/365th, per week. Given reductions in tax, most members should continue getting around half of their pay.
- For similar reasons as outlined above, this pattern of action would reduce pressure on the Fighting Fund, ensuring that action could be sustained for longer if needed.
- The action has advantages over shorter blocks, as it would be much harder-hitting and should bring the employer back to the table more quickly, shortening the dispute overall. Should the employers make an offer sufficient to be put to members, this strike pattern would also make it easier to ‘step down’ or call off a single block of four days of action, allowing members time to consider the offer, whilst being able to resume action more quickly should members reject that offer. In other patterns, both indefinite continuous action and the proposed short blocks of action, a 14-day re-notification period would be required to resume action in the event of a rejected employer offer. The possibility of a quick resumption of action maximises pressure on employers to make only serious offers that have a realistic prospect of settling the dispute.
This proposal is designed to maintain the advantages of indefinite action by avoiding lengthy breaks in which re-notifications have to be issued. It would send a clear signal to employers that we have a serious and hard-hitting strategy that will not allow them to simply move tasks around or re-prioritise work through the term. It reduces the impact and risks associated with full, ‘all out’ continuous action because it removes the potential justification for employers to deduct continuous pay.
How will decisions be made?
HEC (Higher Education Committee) is the subcommittee of the National Executive Committee with responsibility for industrial matters in Higher Education. It is the only union body which has the legal capacity to authorise industrial action in the HE sector. HEC members are elected lay (i.e. unpaid) UCU members who will themselves be taking any action they authorise.
HEC doesn’t take decisions about industrial action in isolation. Since 2018, non-decision making Branch Delegate Meetings (BDMs) have been used to provide feedback from branches to the HEC. BDMs are not binding, but are held to advise and inform HEC decision making when there is not time to call a formal Higher Education Sector Conference (guidance on how BDMs should operate are here). Recent BDMs have taken a range of formats. Motion HE11 at Congress 2022 (see here) strengthened the purpose of BDMs, mandating they be called before any relevant HEC and that HEC take a ‘strong steer’ from BDM deliberations.
The next BDM is on 10 January. While the format of the meeting is not yet clear, branches have been issued with a series of questions upon which to consult their members, and will be invited to feed back their branch positions in some form at the BDM.
The consultation questions circulated to branch officers are framed around a binary choice between “all-out indefinite action, involving taking industrial action every day” and “a pattern of escalating action through February, March, and April”. However, these are not the only options open to our union, and we are concerned that presenting such a binary choice to members reduces the capacity for creative strategy.
What can branches and members do?
There will be a BDM on 10 January to discuss the next steps in the dispute. As noted above, branches have been asked to hold meetings and consult members prior to this, to inform their branch delegates. If your branch has not called a meeting, there may be provision in your branch’s local rules for members to requisition one — check your branch website or contact your Branch Secretary for a copy of the rules.
Bring indefinite discontinuous action to your branches for discussion. This could happen via submitting motions in support of indefinite discontinuous action for discussion at your branch meetings, or if your branch is voting on options in another way, asking for it to be part of the discussion/vote. If your branch supports this type of action in such discussions, you can mandate your Branch Secretary to report this to HEC members, for information.
Please see this video for a five minute explainer of the discontinuous indefinite action proposal.
There is also a draft motion you might use as a basis of bringing discussion to your branch (here).
We believe it is vital that branches are able to discuss all options on the table, and to think creatively together about tactics and strategy members would like to see included. It’s really important for members to respond to any branch consultations on the next steps in the dispute, and to take part in discussion and decisions about the positions branches wish to take: we need not be limited to artificial binary choices.
Members are also able to write to HEC members using this form (here), and to the General Secretary (here) and the Acting Head of HE (here) in support of including discussion of indefinite discontinuous action at the Branch Delegate Meeting on 10 January.
Sarah Joss, Rhian Keyse, Vicky Blake, Grant Buttars, Kyran Joughin, Robyn Orfitelli
Addendum
In light of a conversation since this blog went live we thought it worth noting that a 4/7 strike pattern cannot be argued by employers to be continuous, which is where there is a risk of aggressive employers deducting wages at a rate of 7/7. We have written our proposal predicated on the same basis as UCU notes in its Industrial Action FAQ that strike deductions should usually be taken at a rate of 1/365th (see here). The relevant case law is Hartley V king Edward VI college 2017.
See also this blog which explores the legal context, paying particular attention to the fourth paragraph of section 2.
