Industrial Action - Readings Flashcards
What are the provisions of the TUA enacted?
(Ford and Novitz, 2016)
- (i) Strike Ballot Thresholds
- (ii) An Independent Review of Electronic Balloting
- (iii) Information Requirements on Industrial Action Ballots
- (iv) Timing and Duration of Industrial Action
- (v) Picket Supervisor and Regulation of Protest
- (vi) Agency Workers Replacing Strikers
- (vii) Changes in the Role of the Certification Officer
- (viii) Political funds
- (ix) Facility Time and Check Off
Describe the provision of ‘Strike Ballot Thresholds’
- Section 2 of TUA (2016), amending section 226 of TULRCA (1992) - for industrial action to have the ‘support of a ballot’
- Requirement > 50% of those entitled to vote in fact vote - In addition to the existing requirement that a majority vote in favor of the action
- Not amended in the course of the passage of the Bill through Parliament and seems to lie at the very core of the Government’s objectives
- Where IA involves ‘important public services’, additional requirement - 40 % of workers must have voted in favor of the strike act.
- 6 categories of IPS: health services, education of the under 17s, fire services, transport, nuclear decommissioning and border security
- Difficulty of deciding factually the precise workers who
are ‘normally engaged’ in such ‘services’ (Dukes and Kountouris, 2016) - Clear violation of ILO standards (Ewing and Hendy, 2016) + The Prison Officers Association v the Government of the UK
- Violation of Article 11 of the European Convention of HR ‘freedom of assembly and association’
- UNISON vs UK
- RMT v UK - case banned secondary action: where workers strike from other organisation to show support - ‘necessary for democratic society’ - ss 224 TULRCA 1992
Describe the provision ‘An Independent Review of Electronic Balloting’
- Introduction of a new section 4 in the TUA
- To ensure higher turnouts
Describe the provision ‘Information Requirements on Industrial Action Ballots’
- The voting paper should now include (risk of ballot paper spreading onto 1 or more pages):
- set out details of the matters in dispute
- the different types of envisaged industrial action short of a strike
- and the period or periods within which each type of industrial action is expected to occur
- The TUA enacts without amendment the provisions in the Bill by which the union must inform members—and hence the employer—as soon as reasonably practicable after the ballot of the number of individuals entitled to vote, and whether or not the 40 and 50% thresholds
were met, assisting the employer in gathering information for an injunction application. - Given the CO more info about industrial action in its probably intended to give him more information for the purpose of his investigatory functions.
Describe the provision ‘Timing and Duration of Industrial Action’
The TUA makes two changes to the Bill’s clauses on notice of IA and the period of the ballot mandate, currently set out in section 234A and section 234 of TULRCA respectively.
- Increased period to 14 days to let the employer know prior to IA - (in place of the existing 7 days) but can be 7 days ‘if the union and employer so agree’.
- Aim: according to the Government, to reduce the pressure on unions to serve a notice of IA to preserve its position in the context of negotiations.
- The four-month ballot mandate period in clause 8 of the Bill has now been replaced by an increased period of six months, or up to nine months if the employer and union agree.
Aim: Allow time for negotiations
Describe the provision ‘Picket Supervisor and Regulation of Protest’
- The TUA retains the Bill’s new figure of the ‘picket supervisor’, whose presence is required at every picket line for it to be lawful
- 2 changes to the TUA
- Picket supervisor no longer needs to show the letter of approval from the union to the police or ‘any other person who reasonably asks to see it’; it need only be shown to the employer or someone acting on its behalf (though reasonable steps must still be taken
to supply the supervisor’s name and contact details to the police) - Supervisor now need only wear something which
‘readily identifies’ his or her role - These minor changes do little to address the concerns raised in consultation about the sensitive nature of TU membership as as shown by the recent blacklisting litigation
- Government decided finally not to supplement the already vast array of criminal and civil laws which govern protest in the UK. But commitment to update the Code of Practice on Picketing ‘to clarify the range of legal protections which already exist’ and to provide ‘clear guidance on the responsible use of social media during industrial disputes’. But are yet to do so.
Explain the provision ‘Agency Workers Replacing Strikers’
- Accompanying the original Bill was a proposal to revoke regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations (2003) - so that it would no longer be a criminal offence to provide agency workers to perform the duties performed by striking workers
- Proposal has been criticized by the ILO following a complaint from the TUC
- Strike-breaking by agencies
- Not clear what will happen to this measure: it would seem to have been put on hold until after the European Union (EU) referendum and has yet to re-surface.
Explain the provision ‘Changes to the Role of the Certification Officer’
Under TULRCA in its current form the CO only has power unilaterally to investigate a unions’ financial affairs (adjudicator to investigator/prosecutor)
- The CO extensive new powers of investigation and enforcement with considerable significance for controlling trade unions’ IA
- Ewing and Hendy point out the fundamental abuse of Article 6 of the ECHR that they entail. protects the rights to fair trial
Explain the provision ‘Political Funds’
- At present under section 84 of TULRCA a TU member has the right to opt out of contributing to the union’s political fund
- Clause 10 of the Bill envisaged replacing this with a positive ‘opt in’ for both existing and new members
- House of Commons adopted its own amendments: the requirement of a positive opt-in remains, though now restricted to members who join after the end of a transition period or to unions which establish a political fund after that period
- Duty is supplemented by a requirement to give existing members an annual reminder of their right to opt out and include details of the political expenditure in a union’s annual return.
Why were there the justification of reform? From the Bill to to the Act. / conservative party
- The TUA reveals about the ideologies and interests actually shaping the Conservative’s policies on labour relations
- Not due to any crisis in UK industrial relations (no presssure from Businesses -working days lost cause of strikes very low, nothing like the ‘Winter of Discontent’ that lead to EA 1980), or a concern with human rights or democratic requirements (not mentioned by the conservative and threshold not even used for EU referendum)
- Rather, what emerges is a determination to place
unprecedented controls on trade union activity for more pragmatic economic reasons, in ways that also smack of the re-emergence of a highly authoritarian state, increasingly undermining trade union internal affairs - Reducing the transaction costs which would follow from individually negotiated wages
- Public sector unions were not going to be permitted to oppose such measures - additional regulation of strikes in IPS + controls on facility time aimed at public sector unions
Describe the provision ‘Facility Time and Check Off’
- New clause (14) of the Bill prohibiting public sector employers from deducting union subscriptions from wages via check off.
Conservative government ‘public funds should not be used to assist unions in collecting their membership fees’
However, the Conservative’s proposed ban was accused of being a politically motivated attack on union funding, not least because public sector employers would still retain the ability to use deductions for other non-union related reasons such as collecting charitable donations - Amendment: Section 15 of the TUA permits check-off to continue so long as the workers can pay subscriptions by other means and the union makes reasonable payments to the employer for the cost of performing this function
- Facility time to re reducing the influence of public sector unions. Section 13 of the TUA introduces a new section 172A of TULRCA
- Regulations may require some or all public sector
employers to publish information about ‘facility time’—that is, time off for union duties and activities—such as the total amount or percentage of wages spent on it.
What are the main conclusions of Ewing and Hendy’s (2016) paper?
- The Trade Union Bill raised major concerns about freedom of association in particular and its compatibility with a number of treaty obligations, including notably, the European Convention on Human Rights, Article 11
- Complaints were made to the ILO and the Parliamentary Joint Committee on Human Rights considered the Bill
- Although the government made a number of
notable concessions, these were informed more by political than by legal considerations. Despite the concessions, human rights concerns still remain.
The ECHR Memorandum - impact of TUA 2016 on Article 11
- The Government naturally took the view that the Bill complied with the ECHR and the Minister made a statement of Convention compatibility accordingly
BALLOT THRESHOLDS
- It was recognized that the requirements for majority participation and 40% support of those eligible to vote engaged Article 11(1).
- Justified under Article 11(2), encouraged by the judgment in National Rail, Maritime and Transport
Union v United Kingdom (RMT v UK) which, according to the Government, greatly enlarged the margin of appreciation for the UK - right to take secondary action - ban of secondary action: seeking to protect the rights of others - Same Unison V UK - Court held ‘did not exceed the MoA accorded to it in regularity, TU action, and the prohibition of the applicant’s ability to strike could be considered as a proportionate measure and necessary in a democratic society’ for the protection of the rights of their current employers under Art 11 (2)
CHECK OFFS
- It has been argued that banning check offs = ban on prospective collective bargaining not in line with Article 11 (1)
PICKETING
- They are designed to make it clear to third
parties where a trade union sanctioned picket is taking place and to make it clear for the police and other parties who they should contact in the event of any matters which they need be concerned about. We are therefore of the view that these provisions are compatible with Article 11.
BUT - Failed to point out that the requirement to give contact details to the police went well beyond the existing Code of Practice on Picketing (1992) which merely states at paragraph 56 that the picket supervisor ‘should maintain close contact with the police’
TU FACILITY TIME
‘’right to form and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of the Convention - an annulment of a collective agreement was incompatible with Article 11.
+ ILO observed that:
- ‘‘A legal provision which allows one party to modify unilaterally the content of signed collective agreements is contrary to the principles of collective bargaining’’
CO - CO to initiate intrusive investigations against
trade unions on flimsy evidence X Article 11
ILO Committee on Freedom of
Association:
organizations should have the right to organize their administration and activities without any
interference by the public authorities which would restrict this right or impede the lawful exercise thereof.
Atticle 11 of the ECHR
Article 11 – Freedom of assembly and association
(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Multiple violations of ILO Convention 87
- The Bill would impose ballot participation and support thresholds that must be met before industrial action may be taken, thresholds which in the wider context of British law violate ILO standards (clauses 2 and 3);
- The Bill would add additional procedural burdens to the already disproportionate procedural obligations with which trade unions must comply before industrial action may be taken (clauses 4–8);
- The Bill would impose disproportionate and discriminatory obligations on trade unions in relation to picketing, and unacceptable levels of State supervision of picketing activity (clause 9);
- agency workers as strikebreakers during the course of protected strikes and industrial action
BALLOT THRESHOLDS
- The CoE considered that the 50% participation threshold in all ballots was compatible with Convention 87, having, for some years, accepted both the legitimacy of a requirement for a pre-strike ballot and that such a ballot may be subject to a minimum quorum.
- IF QUORUM FIXED AT REASONABLE LEVEL 50% is indeed within such limits of reasonableness
- 40% support threshold was considered permissible
BUT concern was expressed that this restriction would also touch upon the entire primary and secondary education sector, as well as all transport services.
