Tomorrow, the Enough is Enough campaign will take part in their Day of Action. Enough is Enough was founded in large part by unions, particularly the Communications Worker Union (CWU), The National Union of Rail, Maritime and Transport Workers (RMT), and the Association of Community organisations for Reform Now (ACORN), along with Members of Parliament like Zarah Sultana and Ian Byrne. The main aims of Enough is Enough are to fill five key demands: a real pay rise, slashing energy bills, an end to food poverty, decent homes for all, and increased taxes on the rich.
We have seen months of strike action from groups like the RMT and CWU already, but with the demonstrations from Enough is Enough and no end in sight for the railway, postal, NHS and other strikes, it’s possible even more strike action is to follow.
What is a union?
A single employee has a limited ability to negotiate with their employer. They have very little to negotiate with, and the employer has a large amount of leverage over the employee, the employer’s employment being the only thing between an employee and homelessness and starvation. However, employees that banded together to negotiate as a block had much more power and could grind the gears of an entire company to a halt, and they could negotiate fairer wages, benefits, and conditions together. This single truth is the backbone of all unionisation efforts.
A trade union is defined as an organisation that consists wholly or mainly of workers, whose principle purpose include the regulation of relations between workers and their employers. Unions don’t have to be registered so long as they;
- are made up of workers,
- have a formal structure, and
- have the purpose of regulating the relationship between worker and employee.
Most unions apply to be included on the union list maintained by the Certification Officer because it guarantees the union’s status, and more importantly, allows them to file for a certificate of independence. This isn’t required to be legally recognised, however, and a union is considered to have the rights and responsibilities of a union so long as they fulfil the above three requirements.
Unions are, despite being organisations onto themselves, not corporate. They are incorporated and have no separate legal personality. However, the union has other rights usually associated with corporations, such as the power to make contracts, to sue, and to be prosecuted.
Previously, we mentioned the certificate of independence, and we’d like to double back to that now. Only an independent union can take actions like providing bargaining information, applying to force an employer to recognise the union, and demand consultation on redundances or the transfers of undertaking (TUPE) process. Furthermore, only members of an independent-certified union may take time off work for union activities and enjoy protection from dismissal or detriment for doing so. What it takes to become an independent union is not a topic we have time for here – it’s just important to be aware what is required of a union and its members to grant it the protections that allow unions to function.
Finally, union members must be free to associate (or dissociate) from a union as they please. This includes protection from their employer – an employer cannot force or entice anyone to leave a union (by, for example, offering higher pay to those workers who waive their right to organisation). An employer also cannot refuse to provide work on the basis of an employee being part of a labour union, cannot use it as a redundancy criterion, and cannot otherwise discriminate against union members.
Industrial Action, also known as striking, is the key component of collective bargaining, as it allows workers to withdraw their labour from the workplace. Striking is a controversial subject, particularly in the cases of public services such as travel, medicine, and civil service – as we’re currently seeing with the Rail, Maritime, and Transport (RMT) Union Strike. However, the law has never put forwards a positive right to strike – merely immunity from liability in tort, or immunity from liability for any losses incurred by the employer as part of the strike. After all, causing some controlled harm against a company’s revenue stream is the point, as, to strike, other negotiation methods must have failed and the union as a whole feels withdrawing labour is the only option. These immunities are limited, however, and unions must follow a very specific process to have access to that immunity.
The majority of the more restrictive measures came in force with Margaret Thatcher’s Conservative Government of 1979 in the wake of the Winter of Discontent. Though they passed as separate acts, they currently remain in force through the Trade Union and Labour Relations (Consolidation) Act 1992. The Conservative Government of 2015 under David Cameron then increased the requirements of the ballot, raising the number of votes required from the electorate.
To qualify for immunity, a union must:
- prove there is a trade dispute – a trade dispute being either in regards to the terms and conditions of employment, the physical conditions of work, engagement or non-engagement from employer (including termination or suspensions), the allocation of duties, matters of discipline, membership status of union, facilities of trade unions officials, or the machinery for negotiation and consultation.
- Prove that the industrial action is ‘in contemplation or furtherance’ of the dispute. This relates to timing – if it’s just before a dispute, it could be considered to be ‘in contemplation’ of a dispute, and if one is ongoing, then the strike is ‘in furtherance’ of it.
- Be between workers and their employers – employers and employees from other companies cannot involve themselves in trade disputes that don’t affect them.
There are further restrictions under which industrial action is never protected
- Secondary action is not covered – for example, striking against an employer other than the one being negotiated with, for example, against a supplier or client of the business.
- Action to enforce trade union membership – picketers cannot force employees to join a union they wish to dissociate with.
- Union Recognition requirements – if a supplier, client ect. does not recognise a union, it is not legal to strike to force them to recognise it.
- Action based on the dismissal of unofficial strikers – if the strike is not official, then employers are allowed to dismiss those involved.
Finally, to become an official strike, a union must vote in a ballot to strike. The requirements of this ballot are fairly restrictive.
First, a union cannot enforce a strike unless it has the support of a ballot – that is, a union can only strike if they vote to strike. When not enforced by a ballot, all immunities are stripped away, and the union becomes liable for any damages their strike action incurs, and anyone affected could sue, including customers or suppliers.
The union has to be very clear about who it provides a ballot to – if a member isn’t provided a ballot but is later induced to strike, then the union loses the protection of immunity. Therefore, anyone who joins the union after the ballot, for example, cannot be expected to join the strike should it go ahead. However, if a union’s records are inaccurate – unions are not expected to nor required to keep records of things like occupation, so it may not be feasible to perfectly dispense ballots. The law also makes allowances for mistakes such as ballots getting lost in the post. The union, in these cases, did not intend to deny members their entitlement to vote.
It’s also required of union that it informs the affected employer at least seven days notice in writing the ballot. This is a controversial requirement, as whilst the apparent aim is to provide employers the ability to plan for the disruption to their operations, it has been used in the past as the basis for legal challenges to otherwise legal balloting. The union must also provide information about the members being balloted, in the form of lists of categories of workers affected and the figures involved.
The ballot itself is also subject to several rules about how it must be structured. In general, the ballot must;
- Contain at least one ‘yes or no’ statutory question: the two statutory questions being whether they are prepared to take part in ‘industrial action short of a strike’ and whether they are prepared to take part in ‘a strike’. Both questions can be presented, but they must be handled as entirely separate questions.
- If ‘short of a strike’ is included, what actions the union would pursue in this case.
- Contain a statement informing members that the action might be unlawful.
- Identify the person authorised by the union to call upon the members.
- Give the identity of the name of the independent scrutineer.
- Provide a summary of the matter or matters in dispute.
- It must indicate when the period of industrial action is to take place.
If any of these points are not met, the ballot is not valid and the protections from liability are not available.
To pass, a ballot has to have at least a 50% return rate, and for public services, 40% of the entire electorate must vote yes. This means, with a ballot return rate equal to the voting rate for a General Election (66%), at least a supermajority must vote ‘yes’ for a public service union to pass a vote to strike.
Assuming all of these requirements are met, the strike can go ahead. The strike is now immune to some specific types of legal recourse, such as an employer suing them for damaging profits. That doesn’t mean that all types of damages are protected – if a picket becomes violent, or begins harassing people, then the union and its members are still liable for those damages.
We are only just scratching the surface of unionisation and industrial action. Our team keeps several textbooks on hand covering employment law, and in the more comprehensive one, unions and industrial action collectively make up 1/5th of the entire book. We couldn’t possibly cover everything on strikes and industrial action in one article. We hope this provides a solid foundation, however, and as the situation develops, we will go into any specific areas in more detail.