The Right to Strike (L9/10)

Question 1

What did Maurice Kay LJ call the right to strike in the Metrobus v UNITE [2009] case?

Answer 1

‘Not much more than a slogan’.

Question 2

How was common law liability established in delict because of strikes historically?

Answer 2

Departure point: strike unlawful (breach of contract of employment of each of the workers taking part).

Delictual liability:
Inducing someone to breach contract (Lumley v Gye [1853]).
Conspiracy to injure [insufficient evidence that contracts have been broken] (Quinn v Leatham [1901]).
Trade unions vicariously liable for torts of servants and agents (Taff Vale).

Implications: impossible for trade unions to provide lawful justification for their actions. They were in danger if found liable.

Question 3

How did the Trade Disputes Act 1906 create statutory immunities from delictual liability?

Answer 3

Complete immunity to unions in respect of actions in tort (delict).
Immunity from liability for conspiracy/inducement for breach of contract.

‘Golden formula’: immunity in tort for action in contemplation or furtherance of a trade dispute.

Protection of trade union funds from liability in tort (delict).
Foundation of the collective ‘laissez-faire’ era.

Question 4

How have problems of trade union liability arisen in more modern cases?

Answer 4

Rookes v Barnard [1964].
Trade union threat of industrial action unless employer dismiss worker who was not a union member.
Held: tort of intimidation (liability to the individual employee – closed shops).

J&T Stratford & Son v Lindley [1965].
Liability in procuring the breach of a commercial contract / embargo at company with controlling interest in the company in dispute.

Question 5

Which statutes have legislated to reform immunities?

Answer 5

Trade Disputes Act 1965.
Immunity from liability for tort of intimidation (reversing Rookes v Barnard).

Trade Union and Labour Relations Act 1974.
Widening of immunities.

Employment Act 1982.
Narrowing of immunities.

Current statutory law: TULRCA 1992.

Question 6

Which actions are protected from delictual liability under TULRCA 1992 s219?

Answer 6

(1) An act done … in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only -
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or; (breach of contract).
(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance (intimidation).

(2) An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort (conspiracy).

Question 7

Protected disputes are those ‘between workers and their employer’, relating ‘wholly or mainly’ to one of the matters specified in s244(1). What are these matters?

Answer 7

a) The terms and conditions of employment.
b) Engagement or non-engagement, or termination or suspension of employment, or the duties of employment, of one or more workers.
c) Allocation of work or the duties of employment between workers.

Question 8

Which cases show us what is NOT a protected dispute?

Answer 8

Express Newspapers Ltd v Keys [1980].
Protests (Day of Action) against Employment Bill 1980.
Held: no trade dispute; ‘an avowed political strike’; injuctions granted.

Mercury Communications v Scott-Garner [1984].
Opposition to liberalisation. Also protection of members’ job security.
Held: ‘mainly’ government policy.

Question 9

What is the issue of the narrow ‘between workers and their employers’ requirement for protected disputes?

Answer 9

Problem: as matter of company law, each company is distinct legal person.

Dimbleby and Sons Ltd v NUJ [1984] (C et al p724-5).
Newspapers sent for printing associated company. All controlled by same company.
Held to be each company a distinct legal person.

Willingness of courts to lift the corporate veil?

Question 10

What is picketing?

Answer 10

Workers go to the entrance of the workplace with purposes:
To inform and make visible the conflict.
To try to convince the other workers not to go to work.
To disrupt production.

Question 11

Which piece of legislation initially protected peaceful picketing?

Answer 11

Trade Disputes Act 1906 s2.

Question 12

TULRCA s220 takes a restrictive approach to protecting peaceful picketing?

Answer 12

Picketer must be:
‘at or near his own place of work’.
- Problematic at times, e.g. university strikes, must be at your own university.
acting ‘for the purpose only of peacefully obtaining or communicating information, or peacefully persuading…’.

Limited protection: e.g: limit to number of picketers; no right to stop vehicles.

Question 13

What requirements does TULRCA s220A put on the union for peaceful picketing?

Answer 13

The union must:
Appoint a picket supervisor.
Take reasonable steps to inform the police about picket supervisor’s name; where the picketing will be taking place; how to contact the supervisor.

Code of practice: further limitations.

Question 14

What is secondary action and why is it not protected?

Answer 14

Solidarity strike.

These are NOT legal.

Until 1990: ‘in furtherance of a trade dispute’, with limitations.

Since 1990: prohibited.

TULRCA s224.

Question 15

What are the requirements for the union under TULRCA s129 which are needed for industrial action to be granted immunity?

Answer 15

Give notice to employer of intention to hold an industrial action ballot.

Hold a ballot of its members.

Notify members and employers of ballot result, and employer of intention to take industrial action.

Question 16

What does TULRCA s226 require of the union?

Answer 16

Notice of intention to ballot (s226A).
Provision of sample ballot paper (s226A).
Provision of ‘lists’ and ‘figures’ (s226A).
Information must be accurate (s226(2D)).
Duty to provide explanation to employer of how figures were arrived at (s226A).

Question 17

What does s226 say about the requirement to provide notice of intension to ballot?

Answer 17

Trade union duty to provide employer with:
(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2).
(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (2F).

Question 18

The provision of ‘lists’ and ‘figures’ is required under s226. What does this include?

Answer 18

The notice must include (s226 A2):
A list of the ‘categories’ of the employees.
A list of the ‘workplaces’ involved.
The total number of employees concerned.
The number of the employees concerned in each of the categories and in each of the workplaces.

Question 19

What does s226A(2D) tell us about the requirement for lists and figures?

Answer 19

The lists and figures supplied (…), or the information mentioned (…), must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies.

Question 20

What case law exists on the list and figures requirement under s226A(2D)?

Answer 20

EDF Energy v RMT [2009].
The trade union failed to refer to the actual categories of workers.

British Airways v Unite [2009].
The ballot notice included people likely to take voluntary redundancy before the strike. Injunction granted.

RMT v Serco [2011].
Union mistakenly referred to 54 rather than 52 workers as taking part in the ballot.
Court of Appeal emphasised importance of ‘limiting words’ in section 226A (2D): ‘as is reasonably practicable in the light of the information in the possession of the union’.

Question 21

What are the protections for ballots?

Answer 21

First introduced in 1984.

S226 as amended by Trade Union Act 2016:
Obligation to ballot; no statutory immunity.
UNLESS:
Specified proportion vote and vote in favour.
The different provisions of ss226B, 227-231 are complied with.

Question 22

What is the general ballot threshold rule?

Answer 22

General rule (s226): in all ballots.

50% of those entitled to vote must participate; and
Majority of those voting must vote in favour.

Question 23

What is the IPS ballot threshold rule?

Answer 23

Where majority are ‘normally engaged’ in important public services (IPS) (s226):

50% of those entitled to vote must participate.
40% of those entitled to vote must vote in favour.
IPS defined in Regulations: health, education, fire, transport, border security, nuclear decommissioning.

Question 24

What must the ballot paper include?

Answer 24

S229 as amended by TUA (2016):

Ballot paper must include:
Summary of the matter or matters in issue in the trade dispute.
Specification of type or types of industrial action.
Time period of industrial action.

Question 25

What are the requirements for the union conducting the ballot?

Answer 25

S229.
Voting by marking of ballot paper.
S230.
Voting must be secret, by post (cost to be borne by the union).
S226B(1).
Independent scrutineer (cost to be borne by the union).
S227(1).
Entitlement to vote ‘all members of the trade union who it is reasonable at the time of the ballot for the union to believe’ will take part.
S232B.
Small accidental failures to be disregarded.

NOTE: costly for unions. Cost of the ballot, potential legal advice required too.

Question 26

How does RMT v Serco [2011] demonstrate the requirements for conducting the ballot?

Answer 26

Vote extended to 2 members who were not entitled.
High Court: breach of s227 and s232B.
Defence: ‘accidental’ meant unintentional and unavoidable.
Court of Appeal: s232B applied since errors had to be unintentional but not unavoidable.

Question 27

What is the duty to provide notice of the ballot result?

Answer 27

Duty to inform those entitled to vote (s231).
Duty to inform employer (s231A).
Scrutineer statement (s231B).
Mandate expires (after 6 months/up to 9).

Question 28

What does British Airways v Unite the Union [2010] tell us about the duty to inform those entitled to vote, of the result?

Answer 28

Text message and email.

Court of Appeal:
‘The Union is not required to prove that literally every eligible member was personally sent his or her own individual report of the full results… [S]uch strictness would be unrealistic’.

Question 29

When must notice of the ballot result be given?

Answer 29

Ss231 and 231A: ‘As soon as is reasonably practicable after the holding of the ballot’ (even if the union has not yet decided to take industrial action).

Question 30

What does Metrobus v UNITE [2009] tell us about the ss231 and 231A timing requirement for notice of the ballot result?

Answer 30

Court of Appeal:
In situation such as this, employer should be informed of the result on the same day as the result became known (24 hours delay).
Injunction granted.

Question 31

What is the duty to give notice of industrial action?

Answer 31

Duty to give 14 days’ notice (s234A).
And to provide lists and figures (s234A).
Information must be accurate (s234A).
Notice including ‘lists’ and ‘figures’ (S234A).

Union must also state whether the industrial action is intended to be continuous or discontinuous.
If it is continuous, it must state the intended date of the commencement of the action.
If it is discontinuous, it must state the intended dates of the proposed action (s234A(3)(b)).

Question 32

What does Milford Haven Port Authority v UNITE [2010] tell us about the duty to give notice of industrial action?

Answer 32

Notice of continuous and discontinuous action given on same piece of paper.

High Court:
Injunction granted.
Terms of section 234A(3)(b) clear: a notice of industrial action must specify disjunctively either continuous action or discontinuous action.

Court of Appeal: overruled.

Question 33

Which cases tell us about UK regulation of the right to strike and IHRL?

Answer 33

Demir and Baykara v Turkey [2008] and Enerji Yapi-Yol Sen v Turkey [2009].

Metrobus Ltd v Unite the Union [2009].

RMT v Serco and ASLEF v London and Birmingham Railway Ltd [2011].

RMT v UK [2014].

Question 34

What does Metrobus Ltd v Unite the Union [2009] tell us about UK regulation of the right to strike and IHRL?

Answer 34

Current statutory restrictions not a breach of Article 11 ECHR.

Question 35

What does RMT v Serco and ASLEF v London and Birmingham Railway Ltd [2011] tell us about UK regulation of the right to strike and IHRL?

Answer 35

Court of Appeal: obligation on UK Courts to interpret UK statute in conformity with Article 11 as interpreted by ECtHR.
‘The freedom to take industrial action not to be constrained by ridiculous arguments invented by lawyers’.
Diminution of litigation about notices and ballots.

Question 36

What does RMT v UK [2014] tell us about UK regulation of the right to strike and IHRL?

Answer 36

ECtHR: The right to strike is ‘clearly protected’ under Article 11.
Complaint regarding pre-strike notice provisions inadmissible.
Secondary action ‘accessory’ freedom but complete ban justified under Art 11(2).