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North East Shop Stewards Event 10 September 2011 A School for Strikers: the Legal Position

North East Shop Stewards Event 10 September 2011 A School for Strikers: the Legal Position John Usher . Setting the scene. Breach of contract The economic torts: – Inducing breaches of contract Interfering with business interests

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North East Shop Stewards Event 10 September 2011 A School for Strikers: the Legal Position

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  1. North East Shop Stewards Event 10 September 2011 A School for Strikers: the Legal Position John Usher

  2. Setting the scene • Breach of contract • The economic torts: – • Inducing breaches of contract • Interfering with business interests • Conspiring to commit an unlawful act or to use unlawful means and conspiracy to injure • Intimidation

  3. Taff Vale and the Trade Disputes Act 1906 • Lumley v Gye 1853 • Taff Vale Railway v ASRS 1901 • Trade Disputes Act 1906 • The “Golden Formula”

  4. The “Golden Formula” • Gives protection from legal action for certain acts done “in contemplation or furtherance of a trade dispute” (now in s219 TULRCA 1992) • This has remained unchanged over the years. But the definition of a trade dispute has been narrowed... • In particular in 1980 (now s218)

  5. The Thatcher years... • Other restrictions... • 1984 – majority support in a ballot required for the first time... • 1993 – there was a new obligation to give the employer notice of the ballot... • Since 1982: workers can only have a “trade dispute” with their own employer...

  6. The Blair/Brown years... • “The changes that we do propose would leave British law the most restrictive on trade unions in the western world” Blair 1997 • In 2010 the ILO noted observations “…that it has been making for many years concerning the need to ensure fuller protection of the right of [UK]workers to exercise legitimate industrial action in practice…” (Balpa’s reference)

  7. Balloting requirements: complying with the law in each dispute... • THE LAW IS INTENDED TO DIVIDE US • Repudiation • Before the dispute arises: procedures and membership records • Strategy, planning & discipline • The weakest link...

  8. Balloting to protect the strikers and the union... • direct.gov.uk says: “All trade union members have the right to be properly balloted before their trade union asks them to take part in industrial action... • “Your trade union is not allowed to ask any of its members to take part, or continue taking part, in industrial action unless it has held a 'properly conducted secret ballot'.”

  9. An industrial action ballot is properly conducted only if: • There’s a qualified independent scrutineer appointed by the trade union (if there are more than 50 members involved) • it was held before the trade union asked its members to take, or continue taking action (the problem of “prior call”) • the right to a postal vote is given to all members the trade union intends to ask to take part in the industrial action and...

  10. Getting it right: who votes? • “all members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part, or as the case may be, to continue to take part in the industrial action in question, and to no others” (TULR(C)A s.227) • Subject to “small accidental failures” (s.232B) • Those joining after the ballot can take part in the action

  11. Ballot notice to include... • The totalnumber of the employees affected, the number in each category and the number in each workplace.  • And an explanation of how these figures were arrived at must be provided. • Or, where some or all of the members pay by check-off, the union can provide information which allows the employer to 'readily deduce' the information above. • No scope for small accidental failures

  12. A couple of recent cases:Metrobus v Unite, EDF v RMT • Metrobus Limited v Unite the Union [2009] (injuncted for failure to explain where the figures came from and on timing of the notice to employer) http://www.bailii.org/ew/cases/EWCA/Civ/2009/829.html • Also in 2009, EDF was one of a number of other employers that won an injunctionhttp://www.bailii.org/ew/cases/EWHC/QB/2009/2852.html. • In May 2010 papers were lodged at the ECtHR arguing that the UK laws are themselves unlawful and that a bar on solidarity action is too. It will take time... ...

  13. How to obtain an injunction... • Lodge a claim (for damages), raise an argument and propose there is a serious issue to be tried.... • By reference to the Viking case perhaps. • Employers could argue conflicting positions • IA is time sensitive...c.f. Demir v Baykara (1998-2008)

  14. The ballot paper must have... • A question asking voters, which can be answered with either a 'Yes' or a 'No', whether they are prepared to take part, or continue to take part, in strike action and/or a question asking whether they are prepared to take part, or continue to take part, in industrial action short of a strike. • If in literature accompanying the ballot paper, the union details the action, then that restricts the subsequent action.

  15. And the ballot paper must have this statement... • "However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than twelve weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later".

  16. Notice of ballot and sample ballot for the employer • At least 7 days before the ballot starts for the notice • and 3 days for the sample paper

  17. A vote in favour... • As soon as reasonably practicable, the union must inform the employers and those entitled to vote of: • number of votes cast • number of yes and no votes • and the number of spoiled papers. With separate workplace ballots, results must be supplied for each separate ballot. However, they will often have been aggregated.

  18. Lessons learnt... • Johnston Press v NUJ (Unreported. May 2010: veil of incorporation & off to ECtHR) • Metrobus Limited v Unite the Union (see above: e.g. notice of ballot result) • British Airways PLC v Unite the Union [2010] EWCA Civ 669 (re: notice of ballot result to members) http://www.bailii.org/ew/cases/EWCA/Civ/2010/669.html • There is no definitive instruction to follow • But it doesn’t mean we can’t get it right and campaign at the same time

  19. For the ballot to be effective... • At least 7 days notice of action (including number, category and workplace etc. of those who will be induced, whether the action is continuous or discontinuous, when it will start) (s.234A) • Industrial action must normally start within 4 weeks of the close of the ballot

  20. The Balpa experience (May 2008) • The union’s court battle over BAs’ threat to seek an injunction against a planned strike. • BA claimed there was a serious issue to be tried that their right under EU law to open a business in another state meant that industrial action is only allowed as a last resort (referring to Viking and Laval). • 2 days into the trial and 2 months into the action a bill of £1.25million...how?

  21. Losing the protection... • Secondary & Political Action never has protection • Picketing: to retain immunity must consist only of peacefully...communicating information, or peacefully persuading any person to work or abstain from working. • It must take place at or near the picket's place of work • It must not involve any other breach of the civil law, such as trespass or nuisance.

  22. March 2011 - or is it? • RMT & ASLEF cases http://www.bailii.org/ew/cases/EWCA/Civ/2011/226.html • Court of Appeal acknowledged that the ECtHR 'has in a number of cases confirmed that the right to strike is conferred as an element of the right to freedom of association conferred by Article 11(1) ECHR'. • The 'recognition of a right to strike‘ had a significant bearing on its decision.

  23. RMT v Serco & ALSEF v London Midland • Laws are not to be so strictly applied against trade unions. • 3 reasons given for the injunction against ASLEF. The union i) inadvertently included 2 not entitled to vote; ii) provided inaccurate information in the notice (for including the two disputed members) and iii) failed properly to explain how it had arrived at the information contained in the ballot notice.

  24. Last word to Prof Keith Ewing? • “So let us rejoice in a great decision, which represents a seismic shift in English law. Let us do so fully aware that while employers are licking their wounds, they are also preparing for their next assault on workers' rights. But any such retaliation will almost certainly be overruled by the European Court of Human Rights, the court from which the Tories want to - but cannot - withdraw.”

  25. What’s coming? • LASPO Bill: squatters provision (Visteon, Vesta) • The Tory led agenda • With the exception of union recognition, no other election in Britain levies a "40% of the electorate" hurdle on a yes vote.

  26. North East Shop Stewards Event 10 September 2011 A School for Strikers – the Legal Position John Usher

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