industrial action law in the UK, myth and reality

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posi
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Mar 20 2008 17:47
industrial action law in the UK, myth and reality

Perhaps I shouldn't call this 'myth and reality' given that I'm not a legal expert, and the following is just the result of conversations with a few people and reading round on the internet. Anyway, the results were surprising to me (or in the case of the first, may be to others), so I thought I'd share them, and anyone who wants to point out where I'm wrong can do that.

MYTH: you can't strike without 'recognition'. (As heard from a prominent and long side-burned wob in the pub the other night wink.)

REALITY. You can. That's not one of the conditions for statutory immunity:

Quote:
- There is a trade dispute, and the action is called in contemplation or furtherance of that dispute.
- A trade union which calls for, or otherwise organises, the action has first held a properly conducted secret ballot.
- A trade union which calls for, or otherwise organises, the action has provided the required notice of official industrial action to employers likely to be affected, following the ballot.
- The action is not "secondary action" (unless the act is a call for such industrial action made in the course of peaceful picketing at a picket's own place of work as the law allows).
- The action is not intended to promote union closed shop practices, or to prevent employers using non-union firms as suppliers.
- The action is not in support of any employee dismissed while taking unofficial industrial action.
- The action does not involve unlawful picketing.

MYTH. No secondary action is lawful

REALITY. See bold above.

MYTH. Non union members have no protection against dismissal for industrial action.

REALITY. At first glance it doesn't look good:

Quote:
Where an employee starts taking "protected" industrial action on or after 24 April 2000, it will be unfair to dismiss him for this reason unless his industrial action lasts for more than [...] twelve weeks

[...]

Industrial action is "protected" if an employee is induced to take it by his union and the union in doing so complies with the legal requirements governing the organisation of industrial action set out elsewhere in this booklet. If the union repudiates the industrial action (see section How the law works when the "statutory immunities" do not apply), it ceases to be protected after the working day following the day of the repudiation. (For example, if the union repudiates the action on a Monday, industrial action taken on or after the Wednesday will not be protected.)

However:

Quote:
A tribunal may also entertain claims of unfair dismissal on their merits if the employer discriminates between those taking part in industrial action - other than "unofficial" industrial action by:
- dismissing some of those taking part in the action, but not others; or
- offering re-engagement to any employee dismissed while taking part in industrial action within three - months of his dismissal, but not to all those dismissed.

- so, the employer cannot lawfully discriminate between union members and non-union members in relation to dismissal for industrial action. Apparently - according to someone I met yesterday who took part - this right was effectively exercised during the Manchester Fujitsu strike. If this is right then effectively a job shop of three wobblies (for example) at a workplace could ballot themselves, call a strike day, and effectively protect every worker taking action on that same day. Can this be right?! [Also, I can't find anything on discrimination short of dismissal - perhaps that's covered by other law?]

MYTH. All industrial action disavowed by a union immediately ceases to be protected.

REALITY. see bold above. You always get an extra day.

Source for above quotations: http://www.berr.gov.uk/employment/employment-legislation/employment-guidance/page17758.html

If I'm wrong about any of this - 'cause obviously those alternate points of view do exist - then post up here and let's get some clarity.

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Tacks
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Mar 20 2008 18:18

rock on posi

good stuff.

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the button
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Mar 20 2008 21:52
posi wrote:
[Also, I can't find anything on discrimination short of dismissal - perhaps that's covered by other law?]

"Unfair action short of dismissal on grounds of trade union membership/activity" is terminology from the Employment Act of either 1984 or 1986 (can't remember the year). The notion of "unfair action short of dismissal" has been superceded by the concept of detriment, which is enshrined in more recent legislation: -

http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f093020.htm

Quote:
A worker [NB: it's important that it says "worker," not "employee," as far more people are covered by "worker" than are covered by "employee"] can present a complaint to an Employment Tribunal under TULRCA 1992 s.146 if he is "subjected to a detriment" short of dismissal by his employer "for the purpose of:

1. preventing or deterring him from being or seeking to become a member of an independent trade union or penalising him for doing so,
2. preventing or deterring him from taking part in the activities of an independent union at an appropriate time (see Trade union matters/unfair dismissal/for taking part in TU activities ); or
3. preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so (added wef from 1st October 2004 by Employment Relations Act 2004 s.31(2)) or
4. compelling him to become a member of any trade union or of a particular trade union or of one of a number of particular trade unions" (TULRCA 1992 s.146(1) as amended).

A worker also has the right not to be subjected to any detriment for turning down an offer made by his employer designed to induce him to break rank with a trade union in the way forbidden by new rules introduced by Employment Relations Act 2004 s.29 as TULRCA 1992 new ss.145A and 145B (see Trade union matters/Inducements relating to TU membership or activities ). This right is set out in TULRCA 1992 s.146(2C), introduced by Employment Relations Act 2004 s.31).

I successfully used the 1984 (or was in 1986?) legislation in a case where a union rep was refused a transfer to part-time working hours on the grounds that he "was already having a day off work a week for union duties." Since the notion of detriment is somewhat broader than that of "unfair action," I imagine that that would still work.

mel
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Mar 20 2008 22:29
posi wrote:
If I'm wrong about any of this - 'cause obviously those alternate points of view do exist - then post up here and let's get some clarity.

do you mean alternative interpretations of what you've posted?

with your third quote obviously it says "on it's merits". i'd also question if the point you make about union/non union members rules out the possibility of any law which says the opposite [that it's ok to sack a non union member of a strike].

err, that's probably either obvious or wrong tho.

posi
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Mar 21 2008 12:25

Thanks button. As long as, to be protected while taking part in "the activities of an independent union", you don't actually have to be a member of that - or indeed any - union, that seems to cover the base of action short of dismissal. You'd hope, anyway.

Also, I thought worker and employee were exclusive terms, but you're saying that employees are a subset of workers?

The 'for the purpose of' clause is apparently a fucker. I spoke to someone who had been subject to detriment, the employer admitted, for union activities (performance figures suffering due to facility time), but could not prove that the employer's intention was to prevent him from carrying out the union duties, so didn't get anywhere. Though it sounds like, from what you've said, there might be a chance of that not being read so literally.

Edited to add

Quote:
effectively a job shop of three wobblies (for example) at a workplace could ballot themselves, call a strike day, and effectively protect every worker taking action on that same day. Can this be right?!

If I was the IWW, I would really want to get a firm answer to this...

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the button
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Mar 21 2008 14:19
posi wrote:
I thought worker and employee were exclusive terms, but you're saying that employees are a subset of workers?

They're exclusive in the sense that you're either one or the other. However, if you look at it from an employment rights point of view, employees have all the rights that workers have, and then some additional ones. To put it another way, there are no rights which pertain to workers only, that are not shared by employees.

Quote:
The 'for the purpose of' clause is apparently a fucker. I spoke to someone who had been subject to detriment, the employer admitted, for union activities (performance figures suffering due to facility time), but could not prove that the employer's intention was to prevent him from carrying out the union duties, so didn't get anywhere. Though it sounds like, from what you've said, there might be a chance of that not being read so literally.

My case was dealt with entirely within grievance procedure, so it didn't get as far as a Tribunal. This said, the employer did back down fairly sharpish. I used a key phrase in my letter to the employer: - "I am advised that...." rather than "I just read this in a leaflet about employment law, and thought it might be worth a punt, so here goes..." smile

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Steven.
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Mar 22 2008 02:58
posi wrote:
Quote:
effectively a job shop of three wobblies (for example) at a workplace could ballot themselves, call a strike day, and effectively protect every worker taking action on that same day. Can this be right?!

If I was the IWW, I would really want to get a firm answer to this...

Like you say this is important. I think it's doubtful though. On strikes with unions of at least a semi decent proportion of staff, are the employers likely to ever fuck with people for striking with a union? Cos firstly the employer won't know who's a member, and second if they did move to victimise a non-member presumably they'd just join the union and say they joined the day of the strike, no? (that's what I told non-members + agency staff to do when it looked like we were going to have our pay strike)