#16794 - Industrial Action - Labour Law

INDUSTRIAL ACTION

Industrial action

Posner –Employers may be tempted to refuse to accept union’s demands (threaten to buy nothing rather than come to terms) and the union must either strike or back down. Union cannot just write off the employer though – union will be voted out/employer free to go their own way. Classic example of bilateral monopoly – union and employer can deal only with each other and a refusal to deal (by imposing costs) makes them more likely to come to terms. Labour law affects these costs e.g (i) it allows ER to hire replacements for the striking workers during strike and (ii) ER can’t fire the striking workers who have been replaced.

Kahn-Freud and Hepple – Why do we tolerate them? They are disruptive and impose costs on parties yet there seems to be general consent that they are an indispensable element of a democratic society.

1. Equilibrium argument – the concentrated power of accumulated capital can only be matched by the concentrated power of the workers acting in solidarity (more bargaining power w more ppl).

2. Autonomous sanctions (corollary to collective bargaining)– contract terms not regulated by legislation by predominantly collective action – argued to be more desirable that those who have made the autonomous rules, should also wield the sanctions (TUs+ ERs)- shouldn’t be left for inidivudals who didn’t participate in rule-making to enforce the terms. Strike is to match managerial prerogative. Sometimes an agreed grievance procedure is too slow so strike is the factual power of management unilaterally to change the conditions of worksocial necessity.

• Ewing + Hendy argue that without the right to strike, the right to collectively bargain is no more of a right to collective begging as need it to properly counterbalance managerial prerog.

• Marc Moore calls this the ‘structural imperative’ to legitimise and sustain the reciprocal power imbalance central to the employment relation.

3. Voluntary labour – if people cannot withdraw labour this means that the law compels them to work.

4. Psychological – necessary release of psychological tension.

Cabrelli thinks other arguments can also be added.

1. Democratic – freedom of workers to participate in a strike = essential component of a democratic society.

2. Fundamental human right – ideology of universal human rights and cast strike action as a fundamental and inalienable right conferred in favour of workers. Art 28 EUCFR and Art 11 ECHR and Viking Line.

3. Corporate governance – to legitimise the acceptance of the unilateral discretionary prerogative vested in employers, essential that recognition and protection for industrial action is provided by the law.

However, in English law there is no such thing as an inalienable right to strike.

Metrobus Ltd v Unite the Union [2010] – “the right to strike has never been much more than a slogan or legal metaphor…outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract and the economic torts”.

• While there’s a liberty to associate in TUs and certain ‘liberties’ of action by which TUs can carry on industrial struggle, the ‘right to strike’ is better characterised as a conditional freedom to strike (got to satisfy procedural/substantive conditions) in order for TU not to be liable.

• Freedom rather than a right coz balance to be struck between destructive harm caused and the need for countervailing force to management.

UK approach is to have statutory immunities, ECJ approach accepts the right to strike is a fundi principle of EU law but must be exercised in a proportionate manner ie whether there was a least restrictive alternative to achieving the TU’s legit aim instead of strike action (so proportionality is just as much a form of limitation on the lawfulness of a strike a the UK technique).

Ewing: says the legal position of British worker is ‘remarkable’. A strike, for whatever reason is a berach of contract; any form of industrial action short of strike can lead to ttotal loss pay, those engaged in industrial action may be dismissed regardless of the reason for the industrial action, there’s no right to unemployment benefit and strikers+ their fam is penalised by social welfare legislation even if dispute is the fault of the ER. This is coz new market efficiency model sees LL aim is to remove obstacles to the efficient working of the labour market (TUs+ collective bargaining being one of those obstacles)…’there is no humanity in the marketplace’.

Trade Union Liability and Statutory immunities

History:

• Traditional view = Parliament sought to minimise and the courts to maximise, the extent to which the taking of and participation in, industrial action attracted legal sanctions.

Criminal law constraints:

• Until 1875 the criminal law was central in constraining industrial action.

• The 1825 legislation created offences of molestation, obstruction and intimidation thereby specifically curtailing the freedom to strike and picket.

• Master and Servant Acts retained a criminal offence of breaking a contract of employment.

• Criminal Law Amendment Act 1871 defined the offences in the 1825 legislation more precisely. Virtually all picketing was made illegal and posting a strike notice constituted intimidation of employers.

• R v Bunn (1872): common law conspiracy by threatening to break contracts.

Shift to civil law:

• Master+ Servants Act and 1871 Act repealed by the Conspiracy and Protection of Property Act 1875 which reversed Bunn (conspiracy crime) where acts were ‘in contemplation or furtherance of a trade dispute).

• 1891-1906: courts outflank the protections given to TUs in 1875 Act by expanding liability in tort:

• Creation of the tort of conspiracy to injure (Allen v Flood)

• Tort of inducing breach of contract applied in industrial action.

• Taff Vale (1901): HOL decided that a registered TU could be sued in tort for actions committed by members acting on its behalf.

• South Wales Miners’ Federation v Glamorgan Coal Co (1905)- no defence for inducing breach of contract that the conduct was for an honest desire to promote the interests of TU members and not to injure the ER.

Parl reacted to this expansion of TU civil liab by introducing:

• 1906 Trade Disputes Act: extensive immunity for TUs against tortious liability and individuals who acted ‘in contemplation or furtherance of a trade dispute’, permitted peaceful picketing.

• Kahn-Freund says twin pillars supporting to freedom to strike are the 1875 Act protecting against crim prosecution whilst the 1906 Act provided protection against civil liability.

• However, TUs still vulnerable coz of an immunity rather than rights based approach as courts can and have extended liability for which no immunity is provided:

• Rookes v Barnard (1964): HOL held 1906 Act didn’t cover newly recognised tort of intimidation.

• Although in 1965 parl reacted by introducing Trade Disputes Act 1965 were TUs got statutory immunity from the tort of intimidation.

• Shows the ‘see-saw’ game b/w courts and parl. This continued whereby judges extended liab of TUs at CL and Parl reacting by covering the new forms liab through statutory immunities

• Unfair industrial practices approach (coz significant concerns re number of unofficial strikes):

• Heath Gov introduced Industrial Relations Act 1971 immunities replaced w new liabilities + encouraged tighter control of shop stewards activities (considered to be a resounding failure).

• Structure of the 1906 Act was restored by:

• Incoming Labour Gov in the TU and Labour Relations Act 1974 but scope of protection against liab was extended (and trade dispute definition extended).

• No protection for individuals who were in breach of contract.

• Maintained position from 1971 Act that protection from unfair dismissal only applied in the event of selectivity b/w those dismissed while taking part in industrial action.

• Reaction to the winter of discontent (binmen on strike, vermin problem)significant regulation of industrial action so radical reversal of collective laissez-faire:

• Extensive regulation of industrial action including:

1. Immunity for secondary action and most secondary picketing removed

2. ‘trade dispute’ definition limited

3. Prescriptive and complex balloting requirements

4. Loss of comprehensive immunity against liability in tort.

• Removal of protection against dismissal in relation to ‘unofficial’ industrial action

• TU members entitled not to be ‘unjustifiably disciplined’ by their TU for refusing to participate in industrial action.

• There was some protection for individual EEs:

• Labour Gov made few changes to the area, only:

• Employment Relations Act 1999- automatic unfairness in dismissals for certain ‘protected’ industrial action (although protected industrial action is narrow).

• Tory element of Coalition were vocally anti-industrial action and concerns were focused on ‘leveraging tactics of TUs (ppl protesting outside managers homes far from the particular worksite in question) leading to the Carr Review.

• Review was unsuccessful, TUs objected to Bruce Carr QC’s appointment coz he acts for several ERs so TUs refused to be involved and people wouldn’t give evidenceuseless.

• Conservative 2015 manifesto: protect ppl from disruptive and democratic strike action.

Trade Union Act 2016:

The key provisions of the Trade Union Act 2016 are:

• A requirement that 50% of those entitled to vote must turn out to vote (inserted as s226(2)(a)(iia) TULRCA 1992);

• Where the action relates to “important public services” then 40% of those entitled to vote, must have voted in support (inserted as s226(2A) – (2F));

• Further...