How the ‘NISA clause’ has put Murdoch’s empire under threat

03 May 2012

The Leveson Inquiry recently heard how Rupert Murdoch’s News International effectively prevented independent trade unions from representing its workers – a move that may have contributed to the crisis the company is now facing.

By Sarah Glenister

It’s the story that has dominated the headlines for over a year. Reports of unethical behaviour at media giant News International (NI) have led to sackings, arrests, the closure of the News of the World and the summoning of one of the world’s most powerful businessmen to stand before Lord Justice Leveson. But few have connected the momentous and ongoing saga of the NI phone hacking scandal to a little-known clause in the UK’s recognition laws for trade unions.

In 2001, the Institute of Employment Rights (IER) warned that a loophole in the Employment Relations Act 1999 can be used to prevent staff from joining independent trade unions. Professor Keith Ewing, President of the IER and Professor of Public Law at King’s College London, wrote in an issue of Federation News that year that under the UK’s statutory recognition procedure, independent trade unions cannot apply to represent workers’ rights at an organisation if the employer already recognises another union. However, it is not necessary for the trade union recognised by the firm to be independent – in fact, it can be an organisation set up by the employer themselves.

It is possible to ballot for a dependent trade union to be derecognised, allowing employees to choose an independent one instead, but the process of doing this is prohibitively complex and, unbelievably, if the issue is put to the vote, the employer and the dependent union are given the right of access to the staff – a privilege not afforded to either independent trade unions or the worker who initiated the ballot!

This loophole effectively prevents employees from being represented by a union that is independent of their employer, and that is exactly what happened at News International.

Indeed, those who are aware of the loophole often refer to it as the ‘NISA clause’ after the News International Staff Association – a trade union set up by Murdoch’s company.

To grasp how embroiled NISA is with NI itself, consider that in 2001 it was denied a certificate of independence, partly because it does not have any income other than the funding it receives from the employer.

But what does this have to do with the phone hacking scandal? It has been argued by the IER and the National Union of Journalists (NUJ) that had NI staff been given access to independent legal backing by a trade union, they would have had somewhere to turn when they were asked to partake in unethical behaviour, without having to fear for their jobs.

Instead, with only NISA to turn to and the representatives there clearly beholden to Murdoch’s interests, they were trapped.

Murdoch himself was asked about this issue last week (April 26th), when IER Chair John Hendy QC represented the NUJ at the Leveson Inquiry. Hendy highlighted that there have been numerous accounts of staff at Murdoch’s newspapers being pressured into pursuing their stories in an unethical manner.

Hendy reported that General Secretary of the NUJ Michelle Stanistreet has described “endemic bullying, huge pressure to deliver stories, whatever the means, overwhelming commercial pressures which are allowed to dictate what is published, and the overweening power and control of editors over their journalists and of employers over their editors”.

He suggested that if NI journalists are allowed access to the NUJ or another independent union, this could be “at least one step towards the eradication or prevention of the unethical story-gathering practices which Lord Justice Leveson has heard about”.

Murdoch told the Inquiry he was not aware of any internal investigations within NI into the rumoured ‘culture of bullying’, declaring that his staff “always strike me as a very happy crowd” and adding that employees can turn to their editors and NISA if they are having problems at work.

But with NISA famously reliant on the company itself, this leaves NI employees in the absurd position of only being permitted to request the backing of their own opposition when they wish to make a complaint about their employer.

Furthermore, there has been some suggestion this may have been the plan all along for Murdoch. Hendy asked the media mogul whether he influenced the Labour government at the time to leave a loophole in the legislation so that his company would be able to avoid truly independent workers’ bodies, an issue also recently discussed by Professor Ewing for the IER.

“What I want to suggest to you is that you had some discussion or people in News International had some discussion with Mr [Tony] Blair or officials on his side to ensure that that provision was in the legislation so that the NUJ or indeed any other union could not make an application for recognition for collective bargaining at News International,” Hendy stated. But Murdoch claimed no such conversation ever took place.

It may never be known whether the NISA clause was deliberately inserted into UK employment law by Murdoch or his representatives, but it is clear it is a loophole that needs to be closed.

The IER has long been calling for a change in law in this respect and the recent phone hacking scandal highlights why it is so important to offer a truly fair chance to workers to gain independent backing from a trade union.

When the law gives powerful businesses free rein, it can be difficult for workers to defend their rights, leaving organisations open to corruption by manipulative bullies, against whom taking a stand may cost staff their livelihoods.

And what the Leveson Inquiry has shown us so far is that when a company begins to break the law and behave in unacceptable ways, it is not only the workers who lose out, but the employer themselves.

With the Culture, Media and Sport Select Committee recently declaring Murdoch “not a fit person to exercise the stewardship of a major international company”, the mogul’s suspected efforts to thwart independent unionisation may soon become his own downfall.