Trade union strikes: cutting through the myths. Part one - the run up to action

09 September 2014


Employers with recognised trade unions are seeing more pressure coming their way in relation, on the one hand, to job security and on the other to improved terms and conditions. Throw in the possibility of outsourcing, near-and off-shoring as well and you have the possibility of serious industrial action.

Industrial tort" - not in every day usage but vital here because, when it calls its members out on strike, the union is inducing them to breach their contract (which is an action for which the union can be sued). In basic terms, if they get the ballot right then they cannot be sued ("statutory immunity from suit").

  • "Official action" - which you see on the placards held by pickets - means that the action has been called by and has the endorsement of the union. This gives greater protection to the workers involved, but also means the union have to meet the compliance requirements to gain protection.
  • "Unofficial action" - which means action taken by the workers which does not have the open endorsement of the union. This leaves the workers open to selective action by the employer - and seeking clarity from the union whether the action is official or not puts it in harm's way too.

Whatever your experience of the industrial action process, do remember its origins. The 1970s and early 1980s were seen as a dark period for industrial relations, with damaging strikes apparently called on little notice and with even less justification. The Conservative Government, post-1979, deliberately introduced legislation designed to make things hard for the unions if they wanted protection from a claim. Forcing them to go through ballot procedures, with the constant risk of exposure if they did not, was designed only to slow down any strike action.

As a secondary aim the legislation seeks to limit the ability of the union to mount a mass picket - and particularly to call for support from workers not involved in the dispute or even employed by the company. Those who are involved are not allowed to picket anywhere but their own workplace.

Whatever the motivation the number of days lost to industrial action has declined sharply since the 1980s - as has union membership. Periods of economic hardship and job losses have also contributed to a reduced appetite for strikes - and many studies have shown just how long it takes to recover the lost wages even if you "win" the pay increase.

What is a "trade dispute"?

A trade dispute is a vital part of the picture - unless the proposed action is taken in "contemplation or furtherance of a trade dispute" there is no protection and the workers and union are exposed.

But the "dispute" can cover a wide area - terms and conditions of employment of physical conditions of work; engagement, non-engagement or termination or suspension of workers; allocation of work; discipline; membership (or non-membership) of a trade union; facilities for union officials; facilities for negotiation or bargaining and other procedures relating to any of these rights between the workers and their employer.

In some senses the list covers almost every issue, but despite that fact there are disputes which are not "trade disputes" (see below). Equally showing that there is a dispute is not hard either - all you need is a fairly definite issue about which there is a disagreement.

The result is that most issues between an employer and its workers will be within the "trade dispute" but a dispute between employees/workers, or between different unions, or between the union (for itself) and the employer will not.

There is more room for argument when the dispute is with another group company or with government policy (when you work for a local authority) or about the entity which might become your employer on privatisation or outsourcing. What the workers cannot do is use this process to take action now about what might happen in the future but about which nothing is proposed at the moment.

In this last category - what might be called political strikes - the courts have historically taken a narrow view of what amounted to a trade dispute, whether it related to the current employer or whether there was an ulterior motive. The cases have to be looked at on their facts every time and are likely to arise either in the public sector or, for instance, where outsourcing or offshoring is proposed.

What are the differences between official and unofficial action and does it matter?

Yes, it does matter because your options as an employer depend on the type of action.

In basic terms "Official" action is organised by and taken with the full backing and support of the union involved. If the union organises a strike it can be at risk of being sued for getting people to breach their contracts unless there has been a ballot and all the steps have been followed.

"Unofficial" action lacks that element of union endorsement; it leaves the employees far more exposed to retaliatory action by the employer. So, if the union finds its local branch has been encouraging staff to strike or take other action it can protect itself only by making it official action and making sure there is a ballot or, and this point might be pressed by the employer, publically disassociating itself from what is going on. That protects the union, but not the employees.

This process of disassociation by the union was designed to force them in to the ballot process, which takes time, or rein in their local officials pushing for 1970's style "wildcat" strikes.

Who has to be given the chance to vote?

In simple terms the union has to give the chance to vote to those it reasonably believes will be called on to take industrial action if they get a majority in favour. This can include members you employ but are unaffected by the dispute itself.

As an example, an employer has 12,000 union members. Of those, 1,000 are already signed up to take voluntary severance and, of the rest, the union has decided that only 1,000 would need to be called out to achieve what it wants. On that basis the voluntary leavers are off limits - if they do vote it will invalidate the process - and those who the union already knows are not going to be called out should not be balloted either. That brings it down to the hard core of 1,000.

Problems also arise where the union has its own entitlements over minimum membership periods before becoming a full member with a right to vote.

The hurdle is not quite as high as it appears - if the union makes an honest error in terms of its "belief" or in a failure to send someone the paperwork then the process is not going to be invalidated. But, if you are looking to challenge the process, all of these are worth checking where you can.

What is the ballot process and why is it important?

The ballot process is designed to do two things - to delay any action called by the union (unless it wants to leave itself and its members unprotected) and, on the other hand, to ensure that if the union has taken all of the many steps required in the right way it, and its members, are protected. You can argue about whether this infringes any human rights but, if the union does the process right it is in a strong position. It is a simple choice and, for the most part, unions now get it right most of the time.

So, what do they need to do?

Give seven days' notice in writing of the proposed ballot to the employer of any person entitled to vote, telling the employer when the ballot will be, a list of the categories of employees to be balloted and where they work, the total numbers involved broken down by category and workplace and details (if still applicable) of those paying their subs by check-off.

At this early stage there is plenty of room for error and argument - are the details right, was the notice given at the right time, are there ambiguities? It can be difficult for the union to get this absolutely right - people change jobs and locations and they are not always up to date.

The courts do not require 100% accuracy, particularly if the errors are immaterial to any potential outcome, but the union is expected to do the best it can.

Three days before the opening of the ballot ensure that the employer has a copy of a sample ballot paper. The sample must be in the form of the actual ballot and must go to any employer whose staff are to be balloted. The ballot paper must ask specific "Yes/No" questions on each of whether they are willing to participate in a strike and, separately, whether they are willing to participate in action short of a strike.

This has gone wrong for unions many times - the ballot paper does not have the right questions or there is an ambiguity. It happens less these days - but if you do get the ballot paper late or you think the questions are incorrectly drafted then consider whether you want to push back.

How you do this will impact on the industrial relations environment going forward - an aggressive rejection will not be seen in same way as a reasoned justification; going to court may win the battle but lose the war; do you want to buy some time for some lobbying and persuasion. Do not let it pass!

The union needs to give its members information under the Code of Practice on Balloting about the background to the ballot process, the likely nature of the action to be called, the turnout and majority the union is seeking - but this is for information not a matter of compliance.

The Code of Practice is not an enforceable obligation - but it does show what is expected and the union ignore it at their peril. Can you get hold of the guidance from a safe source - is there a message to get out there to undermine the union's stance? Can you turn their campaign material against them?

The ballot must be secret and postal; every potential voter must, as far as reasonably practicable, have a ballot paper sent by post to their nominated address and be given a convenient opportunity to vote - a minimum of seven days for the returns if sent 1st class and 14 days if second.; every voter must be able to vote free from constraint or interference from anyone connected with the union.

This sounds quite simple but is, in fact, a challenge. People move without telling the union; people give the information but it is not entered; people are disenfranchised which can make the ballot ineffective. There are saving provisions in the legislation designed to ensure that immaterial non-compliance can be ignored - but it is worth checking that the information got to the right places and people have their democratic rights observed.

The votes must be fairly and accurately counted; the proposed action is supported if the majority voting vote "Yes" to the question; those entitled to vote must be notified of the outcome by such steps as are reasonably necessary and the numbers of votes in total, those voting "Yes", "No" and the number of spoilt papers.

Although late in the process this has been a key issue in cases where employers have wanted to find a reason to go to court and get an Order stopping the process or having the ballot declared invalid. Why? Because, although the counting is relatively simple (once you deal with spoilt papers) and so is the maths, getting the notification to the voters can be a problem.

So, cases have been taken successfully on whether the union has informed its members as required. Does that mean a personal notice (and where does it go)? Does it mean by post, e-mail or text, or the union website or the more prosaic noticeboard. If the message goes in the right way, does it contain the right information? As an example, an announcement of the percentages involved for and against was accepted as valid even though that is not what the legislation requires.

What does the union need to tell the employer?

As soon as reasonably practicable the union has to take "such steps as are reasonably necessary" to give the employer the same results information which it gave to its members. In theory this has to be done even if no action is going to be called -so, the union should tell the employer even of a "No" vote.

It is important that the outcome of the ballot is not confused with the "call for industrial action" which comes later. The ballot sanctions the industrial action which can be taken at a later date - but the fact that the union will trigger the action some weeks afterwards does not allow them to withhold the result. If they do not give the right notice of the outcome at the right time then the protection given by the ballot process can be lost.

Remember, the union needs the support of the majority of those who voted (although David Cameron has announced a review of this position). If you know the key voters, then use their influence to influence the outcome.

Look out for part two of the series which explains what to do when action is announced.

If you are faced with the threat of a ballot, an immediate strike, a ballot result or just want to talk it over, please call. We look at these issues with clients on a regular basis - sometimes it is just about considering the alternatives, other times it is about going to court.


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