Industrial Action – is it legal?
Our solicitors, John McShane and Judy Hamilton, were pleased to support NIPSA and its members yesterday in their ongoing industrial action.
Recently there has been a spate of public sector workers calling for strike action due to unsatisfactory working conditions, including pay. Nurses, hospital staff and university staff recently voted for and undertook strike action in the last number of months. This article will look at what action a union has to take to ensure industrial action, including strike action, is legal.
Trade Union v Employer
A trade union that is recognised by an employer for collective bargaining purposes has the highest level of recognition for the purposes of negotiation. It means that decisions relating to certain rights cannot be taken by the employer alone. Where a trade union is recognised, trade unions and employers will agree on what terms and conditions are covered, eg pay, holiday and working hours. The trade union and employer will enter into a recognition agreement which should set out the procedures for negotiations between management and unions, the issues to be negotiated and categories of employees covered. The scope of collective bargaining will vary from one workplace to another, but it is in both parties interests to have a clear and comprehensive recognition agreement.
Is a Strike legal?
Industrial Action is the last resort for employees whenever a dispute in the workplace cannot be resolved through negotiation. Industrial action, at common law, is generally unlawful. However, statute has provided immunity provisions if the action is done in contemplation or furtherance of a trade dispute. (Article 97 of The Trade Union and Labour Relations (NI) Order 1995 (TULRO 1995))
To ensure a strike is legal unions need to ensure the correct procedure is followed. This is a complex statutory balloting and notification procedure set out in Part V111 of The Trade Union and Labour Relations (NI) Order 1995.
In summary, the following action must be taken:-
- The trade union must ballot all members that it intends to call upon to take action and must not ballot any other members. (Article 108 of TULRO 1995)
- A secret postal ballot must be held asking members if they are prepared to take part in a strike or action short of a strike and the majority of members must agree.
- Notice should be given to employers at least 7 days in advance that a ballot is taking place. The notice must contain the date of the opening day of the ballot and list the categories and numbers of employees concerned and their workplace
- The results of the ballot should be made known to the employer as soon as reasonably practicable.
- A ballot ceases to be effective 4 weeks from the date of the ballot or longer if both the union and employer agree therefore industrial action must be taken within 4 weeks of the ballot.
Consequences if in breach of the legislation
Failure to follow the correct procedure can result in legal action being taken by the employer for an injunction preventing the strike. Identifying shortcomings within the unions ballot can provide a useful bargaining tool for employers when negotiating with unions as they can attempt to stop the action in Court.
In London Underground v National Union of Railwaymen IRLR 341 the employer obtained an injunction against the union as they had included items on the ballot paper that were not the subject of a trade dispute.
In Thomas Cook Airlines Ltd v British Airline Pilots Association  EWHC 2253 (QB) the employer sought an injunction on the basis that the union had failed to comply with the legislation and had not set out the “period or periods within which the industrial action…is expected to take place”. The union’s voting paper proposed industrial action “on dates to be announced over the period from 8 September 2017 to 18 February 2018”. The court dismissed the application and held that it was only necessary for a trade union to specify the period within which action was expected to take place, taking into account the dynamic nature of industrial action and the desirability for both sides of allowing flexibility.
Royal Mail recently won an injunction preventing a mass postal strike as workers had been seen to be casting their ballots at work rather than in secret at home. Given the timing of the strike during a General Election the Judge held that “there is a relevant wider public interest that is material to my conclusion that an injunction should be granted”. However, further strike action is likely.
Trade unions and employers must work together to reach agreement. Unions can ballot their members on any issue provided it is within the Recognition Agreement with the employer and their own union rules. Given the logistical challenges facing unions to ballot their members it is likely that unions will only do so when they consider it to be of the upmost importance to their members.