Industrial Action - Lecture

Question 1

What is the UK legal framework?

Answer 1

“The freedom of employees to combine and to withdraw their labour is their ultimate safeguard against the inherent imbalance of power between the employer and the individual employee. This freedom has come to be accepted as a hallmark of a free society.”

Question 2

Historical context of Trade Union law

Answer 2

• By start of 19th Century Combination Acts 1799-1800 confirmed that any form of organisation ‘for the advancement of wages’ was unlawful + other statutes also provided basis for prosecuting worker combinations/individual workers – eg the Unlawful Oaths Act 1797 under which ‘tolpuddle martyrs’ were sentenced to seven years’ transportation in 1834
• Meanwhile, common law (ie judicial doctrines) establishing criminal illegality of trade unions as either conspiracies per se (ie in themselves) or as organisations in restraint of trade rendered partial repeal of Combination Acts in 1824/25 largely meaningless.
• First signs of relief for unions followed report of 1867 Royal Commission, established after so called ‘Sheffield outrages’. Skilled union leaders (dubbed the ‘junta’), with middle class supporters and legal advisers (including two Commission members), exercised considerable influence over outcome.
• Minority report of Commission thus formed basis for first emancipatory statutes of 1871-75 – these freed unions from restraint of trade and worst rigors of criminal conspiracy doctrines; removed general criminal liability for breach of individual employment contracts; and gave limited protection for ‘peaceful’ picketing.

However, judges responded by, among other things:

- ‘finding’ that liability for conspiracy in civil law (ie the law regulating relationships between private individuals) still attached to union objectives (eg attempts to persuade employers not to use non-union labour - see Quinn v Leatham, 1901); 
- extending civil wrong (ie ‘tort’) of inducing breach of contract to the actions of union officers; officials in calling on members to take action; 
- creating ‘a new kind of defendant’ (ie the union itself) against which these wrongs could be alleged (see Taff Vale Railway Co v ASRS, 1901), thus exposing union funds.

-Trade Disputes Act 1906 established parameters of UK system of ‘immunities’ against above and similar civil law actions (that is, ‘economic’ or ‘industrial’ torts) - unions themselves rejected more positive framework of ‘rights’ and ‘obligations’ due to suspicion of law and legal regulation.

• This system survived broadly intact to the present day, though from 1980 onwards the Thatcher Government imposed constraints by:
  
  • banning secondary action;
  • generally limiting the scope of the immunities;
  • [re-]imposing liability for industrial action on trade unions and their funds;
  • requiring (ultimately) fully postal industrial action ballots.
• The Blair Government after 1997 largely accepted this ‘settlement’ without amendment.

Question 3

The current law as a result of the historical foundation

Answer 3

• No positive basic or constitutional ‘right’ to strike in UK law;
• Almost all IA - i.e. a strike, is likely to be regarded by the courts as a significant breach of their contract of employment by those who take part;
• The industrial ‘immunities’ do not modify this position. They primarily determine whether the actions of organisers (esp trade unions) are ‘protected’ from liability only in respect of the industrial/economic ‘torts’ (ie civil wrongs);

There is only limited statutory protection for individual employees who take part in action, for example, in respect of unfair dismissal (UNISON v UK 2002)

Question 4

Explain the Unison VS UK case

Answer 4

• Employees transferred UCLH - wanted same protected rights as others
• The Court of Appeal considered that the guarantee if obtained by the union could have been of benefit to its members. The proposed strike must be regarded therefore as concerning the occupational interests of the applicant’s members in the sense covered by Article 11 of the Convention.
• The Court further considers that the prohibition of the strike must be regarded as a restriction on the applicant’s power to protect those interests and therefore discloses a restriction on the freedom of association guaranteed under (1).
• (2) of the Convention ‘necessary in a democratic society’ i.e. the applicant’s interests in protecting its members must weigh more heavily than the UCLH’s economic interest
• The Court considers that the impact of the restriction on the applicant’s ability to take strike action has not been shown to place its members at any real or immediate risk of detriment or of being left defenceless against future attempts to downgrade pay or conditions
• When, and if, its members are transferred, it may continue to act on their behalf as a recognised union and negotiate with the new employer in ongoing collective bargaining machinery. What it cannot claim under the Convention is a requirement that an employer enter into, or remain in, any particular collective bargaining arrangement or accede to its requests on behalf of its members.
• The Court therefore does not find that the respondent State has exceeded the margin of appreciation accorded to it in regulating trade union action.
• In these circumstances, the prohibition on the applicant’s ability to strike can be regarded as a proportionate measure and ‘necessary in a democratic society’ for the protection of the rights of others, namely UCLH’

Question 5

What are the industrial immunities? ss 219-246 TULRCA 1992

Answer 5

• Tort involves interference with a contract (inc threat to break a contract) YES
• Is action taken ‘in contemplation or furtherance of a trade dispute?’ YES
• Is there unlawful secondary action? NO
• Action to enforce union membership? (closed shops) NO
• Action in support on unofficial strikers? NO
• Picketing? At or near a work place? YES OR NO
• Peacefully persuading? YES
• Valid ballot

Question 6

Stages to consider when analysis a TU case

Answer 6

• Does the IA give rise to civil liability at common law?
• If so, is there an immunity from liability provided by the TULRCA 1992?
• Has that liability now been removed from the changes in the TUA 2016?

Question 7

‘Torts’ of inducing breach/interference with contract and explain the Marina Shipping vs Laughton (1982)

Answer 7

• Trade Dispute” Issues (s.244(1)(a)-(g) of TULR(C)A)
• A trade dispute must be between ‘workers and their employer’ and relate ‘wholly or mainly’ to one or more of the following*:
  (1) terms, conditions, physical conditions
  (2) engagement, non-engagement, termination, suspension
  (3) allocation of work
  (4) discipline
  (5) union membership/non-membership
  (6) facilities for union officials
  (7) negotiation and consultation machinery, other procedures (including recognition issues)
• This definition thus precludes, for example, predominantly ‘political’ disputes.
• Marina Shipping Ltd v Laughton [1982] Court of Appeal
• Unions action in blacking a FOC vessel while it was in port was tortuous as an unlawful interference with contracts between the plaintiff owners and the characters
  National Union of Railway men (TU officials) - Inducement (i.e. calling for action) - Lock keepers (employees taking action) - breach of employment contracts - port authroity (employer) - charterer - ship owner

Question 8

What are the union liabilities if ‘immunities’ do not apply?

Answer 8

• Limits on the award of damages (in any proceedings in tort) against TUs, depending on their size (s.22 of the TULR(C)A):Number of members Limitless than 5,000 £10,0005,000-24,999 £50,00025,000-99,999 £125,000100,000 or more £250,000

CONTEMPT OF COURT for a union’s failure to comply with injunctions requiring them to control their members, including - Fines , Sequestration of assets, Receivership, Imprisonment of individuals

Question 9

When can you get dismissed during IA?

Answer 9

During - Official’* and ‘protected’** action
(s.238A TULR(C)A – auto UD in first 12 weeks of participation etc)

During ‘Official’ and ‘unprotected’ action
(s.238 TULR(C)A – Employment Tribunal UD jurisdiction removed if no selective dismissals or re-engagement of employees taking part)

Dismissal during ‘unofficial’ action
(s.237 TULR(C)A – No UD claim)

• Action is ‘official’ in relation to the employee involved if his/her union has authorized or endorsed the action.
• In relation to non-union members, the action is official if there are unions members also taking part one or more of whose union(s) have authorized or endorsed the action, or where there are NO union members involved.
• Action is ‘protected’ if the union (and/or other organizers) can rely on the industrial ‘immunities’ if sued for one or more of the specified industrial/economic torts.

Question 10

In which countries is striking part of their constitution?

Answer 10

• France: Constitutional right provided under paragraph7 of the preamble to the French Constitution of 24 October 1946, now in force through the French Constitution of 4 October 1958, which states:
  ‘the right to strike shall be exercised within the framework of the laws that regulate it.’

-Italy: The employee’s fundamental right to strike is granted under Article40 of the Italian Constitution. Article40 further provides that this right cannot be waived or excluded and must be exercised in accordance with any special laws applicable to industrial action.