John Hendy QC

The Trades Disputes Act 1906, which, one hundred years ago, gave, for the first time, legal protection to trade unions organising industrial action, set the balance for industrial action law for three quarters of the twentieth century. Though subject to several adjustments to deal with Parliamentary and judicial incursions, the state of the law in 1979 was much the same as it had been in 1906. The election of the Conservatives in 1979 heralded the destruction of that uneasy balance. Avoiding the frontal attack of the Industrial Relations Act 1971, a series of Acts constructed tighter and tighter restraints on the capacity of trade unions to organise industrial action. A combative TUC in 1980 vowed to fight back but the heroic defeats of the miners, printworkers and others to resist rampant managerial prerogative, against a background of 3 successive Conservative administrations, led to a surly acceptance through the 1980s and 90s that the law could not be ameliorated in the short term.

The New Labour revolution in the Labour Party, in whom all hope of a return to the trade union freedoms comparable to 1906 rested, made clear before its 1997 election that such hopes were utterly unfounded. Tony Blair was accurate indeed when he wrote that even after the changes Labour would bring about after 1997, British law would remain “the most restrictive on trade unions in the western world.” [2] The statement remains accurate today. Workers and trade unions in the UK now have less rights in relation to industrial action than elsewhere in Europe. In fact they have less rights, in that respect, than they had 100 years ago. The unions lived with reality that in the forlorn hope that a second - then a third term - might alter New Labour’s thinking. Those hopes too were utterly unfounded. The Labour Party in power has made it unambiguously clear that the substance of the Thatcherite restrictions on industrial action law will not be touched. Indeed one wonders whether the social dimension currently offered by David Cameron’s Conservatives might be more sympathetic.

However, arguments for greater trade union freedom have been pursued within the labour movement and in September 2005 the Trades Union Congress unanimously resolved to campaign for a Trade Union Freedom Bill. The Labour Party Conference, by a surprisingly large majority, in September 2005 resolved that there should be some restoration of these rights. Discussions took place in which the Institute of Employment Rights and the United Campaign to Repeal the Anti-Union Laws took part. An Early Day Motion (No.1170) on 30^th November 2005 calling for such a Bill had been signed by 182 MPs by the summer recess 2006. The 2006 TUC Conference vowed to pursue the campaign for the Bill. A first and confidential draft of the Bill is currently under discussion. The essentials of the proposed Bill are not confidential and this paper seeks to explain them and the rationalisation for them. [3]

In the historical elements touched on in this introduction, it is important to recall one other matter. It is particularly ironic that British trade union law should have achieved pre-eminence as the ‘most restrictive in the Western World’ and that unions should have less freedom in Britain than they did one hundred years earlier because during that time, the UK has ratified international treaties (largely drafted by British diplomats acting on the instructions of government [4] ) requiring (amongst other union rights) the guarantee of the right to strike. In consequence the UK was instrumental in ensuring that the obligation to guarantee the right to strike has become a fundamental feature of international law. [5] Since then most civilised countries have guaranteed the right to strike in their legal order – often by incorporating the right to strike into the fundamental rights guaranteed by their constitutions (e.g. the Bill of Rights in the Constitution of South Africa 1996). [6] Since the Conservative employment legislation beginning in 1980, the UK has not merely lagged behind implementation but has become in breach of the very international laws which it played such a part in creating and which it voluntarily ratified. The supervisory bodies of those treaties have held (many times) that the UK’s restrictions on the right to strike are incompatible with the UK’s treaty obligations. [7]

It must be noted at the outset that the proposed Bill is very limited in scope and extent: it does not pretend to address the many fundamental injustices of and breaches of international law by UK law in relation to workers and trade unions. [8] The demand for justice to lift these many restrictions on fundamental rights should not be thought to be diminished by the particular and modest focus of this proposed Bill which goes only a very little way towards restoration of the freedoms of trade unions as they were established 100 years ago by the Trade Disputes Act 1906. [9]

The freedom granted to trade unions by the 1906 Act was of course, appreciated by unions and their members at the time. But few can have realised what an impact that legal freedom would have on the conditions of life of working people. The Act gave unions an unprecedented ability to force employers to conclude collective bargains. The Act was therefore one, perhaps the most important, of the factors [10] which led to the progressive extension of collective bargaining which, by 1975 benefited some 85% of the UK workforce. Collective agreements and their normative effects, in turn paved the way for the huge improvements in the conditions of work and of life for working people in the twentieth century. The Trade Disputes Act 1906 was achieved by trade union pressure both in and outside parliament and the securing of such an Act was the key demand which had led the unions to establish the Labour Party a few years earlier. [11]

The 1906 Act was drafted in such a way as to give legal protections against judge-made anti-union law rather than establishing fundamental positive trade union rights. This drafting anomaly has allowed the freedom to organise industrial action to be characterised in the UK as a privilege rather than a right. [12] Nonetheless, despite a series of judicial and legislative attacks and modifications, the formula established by the 1906 Act substantially secured trade union freedom to take action to protect workers for three quarters of a century. In the last 25 years however, that freedom has been dramatically curtailed. Indeed, in 1906, British trade unions had far greater freedom to organise industrial action than they do today, one hundred years later. For example, under the 1906 Act, they were free to organise solidarity action and were subject to none of the technicalities of ballots and notices which nowadays provide the usual peg for anti-strike injunctions [13] .

The massive restrictions on trade union freedom implemented by the Conservative governments of the 1980s and 1990s were brought about by a succession of legislation so that their impact was gradual. And alongside the sharp rise in unemployment and the defeat of many of the strongest groups of organised workers, like the miners, in well planned and often lengthy conflicts, the cumulative effect of the ‘most restrictive laws in the Western World’ has been profound.

(a) duties normally performed by a worker who is taking part in lawful industrial action (“the first worker”) or (b) the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker. This does not apply if the agency does not know and has no reasonable grounds for knowing that the first worker is taking industrial action.

The proposed Bill would merely extend those Regulations by imposing a correlative duty on a potential hirer of agency labour to disclose the fact of industrial action, and by making it unlawful for the hirer to hire a work-seeker for such a purpose. It is to be observed that this modest provision does not catch cases where, to break the industrial action, the employer in dispute takes labour, temporarily or permanently, from a source(s) other than an agency; or where the employer in dispute shifts production elsewhere.

Industrial action is often stopped by a court order on an urgent application by the employer heard long before a proper trial can be arranged with all the relevant documents and witnesses. [41] An application for such an “interim injunction” is weighted against the union because the law says that the employer has to show only that, at the stage of the urgent hearing, there is a “serious issue to be tried” later at the full trial: the employer does not have to prove that it is likely to win at the full trial. [42] The ILO and the Council of Europe have condemned the easy way in which such interim injunctions are granted against industrial action in the UK. [43]

The injustice of this situation can be partly addressed by providing that an interim injunction shall not be granted unless it can be shown that the employer is more likely to succeed than the union at trial. This is perhaps what was intended by s.221(2) of the Act but it has been effectively ignored by the courts. Media interests benefit from a better worded constraint on interim injunctions to restrain media publication in s.12(3) of the Human Rights Act 1998 which states that no such injunction is to be granted to restrain publication before trial “unless the court is satisfied that the applicant is likely to establish [at full trial] that publication should not be allowed.”

Trade unions also lose interim injunctions against industrial action because of the law’s requirement that the judge must “weigh the balance of convenience” to see where the least risk of injustice lies pending trial. [44] This balance is heavily weighted against the union which would (unlike its members at the heart of the dispute) appear to sustain little more than a lost opportunity if the interim injunction was granted and reversed at trial, as against the employer which can invariably show it would sustain significant damage to its business and customers etc if the interim injunction were not granted.

The proposed Bill does not address this fundamental problem of injunction law. But it would provide some measure of redress to limit the operation of the balance of convenience rule. Thus, the Bill would specify certain duties on employers in relation to industrial action ballots and that breach of such duties would disentitle the employer to an interim injunction to stop industrial action regardless of the balance of convenience.

The first duty would be to supply information reasonably requested by the union to establish its balloting constituency of members. [45] A second set of obligations would replicate the employer’s duties to allow a fair ballot on recognition set out in paragraphs 26 and 27 of Schedule 1A of the Act (and restricted there to recognition ballots, so requiring adaptation and extension to apply to industrial action ballots).

The scope of the right to strike in the UK is plainly too limited, as the supervisory bodies of the relevant international treaties have made plain - repeatedly. The bar on solidarity action discussed above is the classic instance. The need for the capacity for sympathy strikes “because of the move towards the concentration of enterprises, the globalisation of the economy and the delocalisation of work centres” noted by the ILO [46] runs in tandem with the its observation that in the UK the trend to hiving down operations to associated companies increase the need for workers to be able to take solidarity action. [47] Indeed the trend to contracting out operations to unassociated companies and the diversification of employers caused by privatisation are equally compelling factors requiring a modernisation of the law here.

The bar on solidarity action has been strongly criticised as a breach of the UK’s international treaty obligations. It is worth citing the decision of the ILO Committee of Experts in 1994 (subsequently endorsed by the Council of Europe’s European Social Rights Committee):

The Committee has always considered that the right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests …

The current version of the “immunities” is to be found in the Trade Union and Labour Relations Act 1974. The scope of these protections has been narrowed in a number of respects since 1980. The Committee notes, for example, that section 15 of the 1974 Act has been amended so as to limit the right to picket to a worker’s own place of work or, in the case of a trade union official, the place of work of the relevant membership, whilst section 17 of the 1980 Act removes protection from “secondary action” in the sense of action directed against an employer who is not directly a party to the given dispute. In addition, the definition of “trade dispute” in section 29 of the 1974 Act has been narrowed so as to encompass only disputes between workers and their own employer, rather than disputes between “employers and workers” or “workers and workers” as was formerly the case.

Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or “sympathetic” action against parties not directly involved in a given dispute. …it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike This is clearly consistent with the approach the Committee has adopted in relation to “sympathy strikes.”

The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful.

Other changes to the definition of “trade dispute” in the 1974 Act also appear to impose excessive limitations upon the exercise of the right to strike: (i) the definition now requires that the subject-matter of a dispute must relate “wholly or mainly” to one or more of the matters set out in the definition - formerly it was sufficient that there be a “connection” between the dispute and the specified matters. This change appears to deny protection to disputes where unions and their members have “mixed” motives (for example, where they are pursuing both “industrial” and “political” or “social” objectives). The Committee also considers that it would often be very difficult for unions to determine in advance whether any given course of conduct would, or would not, be regarded as having the necessary relation to the protected purposes; (ii) the fact that the definition now refers only to disputes between workers and “their” employer could make it impossible for unions to take effective action in situations where the “real” employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the “employer” of the workers concerned, but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute; and (iii) disputes relating to matters outside the United Kingdom can now be protected only where the persons whose actions in the United Kingdom are said to be in contemplation or furtherance of a trade dispute relating to matters occurring outside the United Kingdom are likely to be affected in respect of one or more of the protected matters by the outcome of the dispute. This means that there would be no protection for industrial action which was intended to protect or to improve the terms and conditions of employment of workers outside the United Kingdom, or to register disapproval of the social or racial policies of a government with whom the United Kingdom had trading or economic links. The Committee has consistently taken the view that strikes that are purely political in character do not fall within the scope of the principles of freedom of association. However, it also considers that trade unions ought to have the possibility of recourse to protest strikes, in particular where aimed at criticising a government’s economic and social policies… The revised definition of “trade dispute” appears to deny workers that right.

The Committee considers that the overall effect of legislative change in this area since 1980 is to withdraw protection from strikes and other forms of industrial action in circumstances where such action ought to be permissible in order to enable workers and their unions adequately to protect and to promote their economic and social interests, and to organise their activities… Accordingly, it would ask the Government to introduce amendments which enable workers to take industrial action against their “real” employer and which accord adequate protection of the right to engage in other legitimate forms of industrial action such as protest strikes and sympathy strikes, as guaranteed by Articles 3, 8 and 10 of the Convention.

These views have been reiterated by the ILO subsequently right up until the present date. [48]

The proposed Bill does not go so far as to meet the UK’s international obligations in this respect. It proposes that, subject to clear and stringent limitations, one group of workers should have the freedom to take industrial action in support of another group of workers involved in a trade dispute. The limitation is based upon confinement of permissible solidarity action to three situations where the union reasonably believes that the employer to be subject to solidarity action has a substantial connection to the employer in dispute. This would exclude situations where industrial action was extended to employers who had no connection with the employer in dispute or to workers who had no connection to the workers in dispute. This then is a long way short of the requirement of international law.

These changes would hopefully ease the restrictions on international industrial action, the importance of which is growing because of increasing globalisation and the significance of which was recently highlighted in the Viking case concerning flags of convenience. [49]

The three permissible situations proposed by the Bill are as follows. Firstly, where the employer in primary dispute and the employer subject to solidarity action are associated employers [50] (though this phrase should have a wider definition than that in s.297). The second situation is where a second employer is covering the work of the strikers directly or indirectly and it is suggested that rather than extend the definition of solidarity action, such a situation is covered by making it a primary dispute – see below. The third situation is directed to the Gate Gourmet situation where a particular customer (or it could be a supplier) dominates the employer’s trade to such an extent that it can and does interfere (or the union believes it has interfered) in the employer’s relations with its employees by insisting on a cut in terms or conditions or redundancies or other measures which the workforce is resisting. Putting it more legally, where a trade dispute exists about a proposal or decision of the employer, rejected by the workers, and the union reasonably believes that an intervention by one of the employer’s principal suppliers or customers instigated the primary employer’s proposal or decision, then action would be permissible against the identified instigator.

A further change to the definition of a trade dispute (s.244) is required by reason of the Court of Appeal’s interpretation of the 1992 Act as barring industrial action to obtain guarantees for the future in a TUPE situation. The court held that, in effect the action was secondary to the dispute between the existing employees and their employer because it was intended to benefit future employees as well as existing ones and was intended to bind a future employer. [51]

A further change too, is necessary to complete the reversal of a Court of Appeal comment that appeared to make unions liable for failing to ballot members who might feel impelled upon to join the industrial action even though the union had no intention of calling on them to do so. [52]

Finally, s.127, Criminal Justice and Public Order Act 1994 requires repeal. Until 1993 it was lawful for a union organising prison officers to call on them to take industrial action so long as the union (like all others) complied with the statutory regime applicable to all unions. In 1994, the then government legislated in relation to prison officers (applicable both in the public and private sectors) to bar the calling of industrial action in all circumstances. The Labour leadership opposed the introduction of the section and has in the past promised repeal it. But repeal is now made conditional on a contractually binding no-strike collective agreement which lays open any union to legal action for breach of contract if it calls for industrial action. The collective agreement presents precisely the same restraint as the statutory prohibition. S.127 should be repealed without any such contractually imposed no-strike requirement. There is no apparent justification for singling out this class of employees for such discriminatory treatment, which, as the ILO held in 2005, is in breach of Convention 87. [53]

The current industrial action balloting rules are so complex and onerous that compliance is almost impossible. Moreover, the intention and reality behind their complexion has been to undermine the ability of unions to mount effective industrial action by facilitating employer counter-preparation to render any attempts to do so ineffectual. Lawful industrial action cannot, thus, utilise the “element of surprise” or even necessarily “striking while the iron is hot”. Both the ILO and the European Social Charter supervisory bodies have held that the complexity of UK law on industrial action and, in particular, the law on balloting for industrial action, is not consistent with the respective international obligations.

The balloting rules require radical revision. In advance of that, the Bill makes a modest but highly significant change in preventing legal action for trivial, technical, accidental breaches of the balloting provisions. The key feature would be that the accidental breach could have no effect on the outcome of the ballot. This parallels electoral law which will not entertain a challenge to an election unless it can be shown that if the alleged irregularity were proved it may have changed the result of the election. The effect of such a change to union industrial action ballots would be that the accidental omission of members who should have been balloted or the inclusion of persons who should not have been, will not render the ballot invalid so long as the number wrongly omitted wrongly included could have had no effect on the result. The Bill would simply enlarge the existing provision excusing accidental failures (s.232B) and by making s.227 subject to reasonable practicability.

Ballots before industrial action are matters of internal trade union democracy and though such a legal requirement for such a ballot is consistent with international obligations, the entitlement of employers to intervene in such matters and to sue over an alleged balloting irregularity is a serious violation of the fundamental principle of trade union autonomy. [54] However, removal of that invasive privilege at this time is thought to be a stage too far and one not so necessary if the notice provisions are simplified as suggested below. [55] The Bill also proposes a change to deal with the bar on industrial action where there has been a “prior call” – discussed above.

The statutory regime for pre-ballot and pre-industrial action notices to employers have caused a huge amount of litigation. A huge burden on unions to keep meticulous up-to-date records of their members’ addresses, jobs, and workplaces has been the consequence. In a fast changing flexible workforce, in which changes of job, workplace and home address are often frequent and always worrying, the ordinary trade union member may be forgiven for forgetting to notify union head office of the change despite the imprecations of regular circulars and union journal notices. In fact, it has become virtually impossible to fulfil the obligation to provide by way of notice:

a list of the categories of employee to which the affected employees belong, and a list of the workplaces at which the affected employees work [and ] the total number of the affected employees, the number of the affected employees in each of the categories in the [first] list mentioned, and the number of the affected employees who work at each workplace in the [other] list mentioned, [together with] information as will enable the employer readily to deduce the total number of the affected employees, the categories of employee to which the affected employees belong and the number of the affected employees in each of those categories, and the workplaces at which the affected employees work and the number of them who work at each of those workplaces. (S.234A(3A – 3C))

In reality, these notices are of little practical value to an employer save as a potential ground for seeking an injunction.

The Bill would repeal the current requirements for giving the statutory notice (in similar extensive terms to those quoted above) that a ballot will be held and to supply to the employer a copy of the proposed ballot paper. There never was a legitimate reason for this notice requirement; whether and when to hold a ballot of union members is a matter of internal democracy. In any event, any reasonably competent employer would be aware that a ballot is to be held: the requirement to give the employer the result of the ballot would remain.

All the onerous formalities of the notice of industrial action should be replaced by an obligation on the union to give, where reasonably practicable in the circumstances reasonably believed by the trade union to exist immediately prior to the ballot, seven days notice to the employer of the proposed commencement of industrial action. Such notice should specify the class or category of workers to be called on (using the union’s categorisation), the nature of the action (i.e. whether a strike or action short of a strike and whether continuous or discontinuous), and when it is to start or (if interrupted, re-start). The duty to provide the simplified strike notice would apply also to solidarity action.

How, when and whether the Bill will reach the floor of the House of Commons and what will happen to it there are matters which will be determined by politics outside the scope of this paper. The need for such a Bill remains, however, incontrovertible and I trust that the entire trade union movement and MPs sympathetic to working people will ensure that the elements identified in this Bill will become law.

[1] Head of Old Square Chambers; Chair of the Institute of Employment Rights; Secretary, United Campaign to Repeal the Anti-Union Laws; Visiting Professor in the School of Law, King’s College, London; late Chair, Employment Law Bar Association.

[2] Article by Tony Blair in the Times, 31^st March 1997.

[3] This paper is largely based on J. Hendy and G.Gall “British Trade Union Rights Today and the Trade Union Freedom Bill” in KD Ewing (ed.) forthcoming book on the Trades Disputes Act to be published by the Institute of Employment Rights.

[4] The UK was instrumental in the founding of the ILO and in setting up its structures, in drafting the key Conventions and, in respect of Conventions 87 and 98 was the first government to ratify both (on 27^th June 1949 and 30^th June 1950, respectively) see A. Alcock, History of the International Labour Organisation, 1972; M. Stewart, Britain and the ILO: the Story of Fifty years, 1969.; K. D. Ewing, Britain and the ILO, 2^nd ed., 1989.

[5] ILO Conventions Nos. 87 and 98; the Council of Europe’s European Social Charter, Art.6(4); the Council of Europe’s European Convention on Human Rights and Fundamental Freedoms, Art.11; and the United Nations’ International Covenant on Economic, Social and Cultural Rights, Art.8(i)(d); Charter of Fundamental Rights of the European Union 1989.

[6] See also the Constitutions of France, Italy, Greece, Portugal. Other countries recognise the right to strike as inherent in the freedom of association guaranteed by the national constitution: e.g. Ireland, Finland and Germany.

[7] In particular by the ILO’s Committee on Freedom of Association and its Committee of Experts; the UN’s Committee on Economic, Social and Cultural Rights, and the Council of Europe’s European Social Rights Committee and its European Court of Human Rights. These bodies, save for the CFA, are composed largely of eminent judges and legal academics. See T. Novitz, International and European Protection of the Right to Strike, Oxford, 2003; K. D. Ewing, Britain and the ILO, 2^nd ed., 1989.For a recent summary of the findings in relation to the UK see K.D.Ewing and J.Hendy, Submission by the Institute of Employment Rights to the Joint Committee on Human Rights Inquiry into the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights, 31^st March 2004, IER.

[8] What is needed is set out in the K.D.Ewing (ed.), A Charter for Workers’ Rights, IER, 2002. In short:

× Dignity and fair terms: The right to dignity at work, to a fair wage and to just conditions of work (including reasonable privacy, training and the opportunity for self-development).

× Health and safety: The right to a safe and healthy working environment.

× Non-discrimination: The right not to be discriminated against and to be treated with equality in equivalent circumstances.

× Job security: The right to security of employment (whether in relation to closures, redundancies, transfers or otherwise).

× Income security: The right to fair income security in retirement, sickness and unemployment.

× Union membership: The right to form and join a trade union for the protection of the worker’s occupational, social and economic interests, and not to be discriminated against on grounds of union membership or participating in union activities or for wanting union representation.

× Union autonomy: The right of a union to uphold its own rulebook, to spend its funds and to conduct its activities including industrial action in accordance with its rules, free from employer and state interference,

× Industrial action: The right to take industrial action for the protection of the worker’s occupational, social and economic interests (or those of any other worker) without being in breach of contract, and without threat of dismissal or discrimination.

× Union representation: The right of individual and collective representation by a trade union including the right to compulsory collective bargaining where a union has two or more members, and to participate in decisions at work.

× Effective remedies:The right, from the outset of the employment, to effective remedies to enforce these rights, including adequate rights for workers’ representatives to inspect and to obtain information.

And see also Modern Rights for Modern Workplaces, TUC, 2002.

[9] Of the many particular pressing issues, some may be mentioned here. The bar in ss.64-65 on trade unions disciplining members who refuse to abide by democratic decisions in relation to industrial action is a breach of trade union autonomy guaranteed by international law as is the bar in s.174 on unions excluding fascists from membership (the latter is under challenge by ASLEF in the European Court of Human Rights). S.220 on picketing needs revision in particular in the light of the European Convention right of freedom of assembly (Art.11). The requirements for separate workplace ballots and on aggregation of ballots are complex and unnecessary (ss.228, 228A) and should be scrapped. Ss.222 and 225 restricting the scope of legitimate trade disputes could be the subject of further legislation. Beyond that the political fund and balloting regime is a further unjustified incursion into trade union autonomy. The European Court of Human Rights judgment in the Wilson & Palmer v UK case has not been fully implemented in the UK (notwithstanding the Government’s 2004 reforms). A change is required to protect a worker from being subjected to detriment by reason of his or her union making representations on the worker’s behalf. With it, the additional requirement imposed in 2004 that the worker must show that the employer had the “sole or main” illicit purpose should be reversed. The Court of Appeal in R(NUJ) v CAC [2006] IRLR 53 emphasised the ability of an employer to make a deal with an unrepresentative union or staff association (especially, as in that case, one not subject to the TUC Bridlington arrangements) in order to block an application for recognition under the statutory machinery by a representative union. What the CAC described as “unsatisfactory, inefficient and unfair voluntary recognition arrangements” by reason of “a lacuna in the legislation” needs to be remedied.

[10] Other factors included, of course, the support of government for the establishment of collective bargaining, an orthodoxy which was constant across all governments for over 80 years from the Conciliation Act 1896 onwards.

[11] See the forthcoming book KD Ewing (ed), on the Trades Disputes Acct 1906 to be published by the Institute of Employment Rights. See also J. Mortimer, The Trades Disputes Act 1906, Institute of Employment Rights, 2004; J. Saville, ‘The Trades Disputes Act 1906’, Historical Studies in Industrial Relations I (1996) pp.11-45; and G. Revell, The Trades Disputes Act 1906, RMT, 2006.

[12] A point made during as well as immediately after the debates on the Bill: see J. Saville, above, at pp.24, 29, and 38-39. On the significance of the distinction to British trade union law see Lord Wedderburn, “The New Politics of Labour Law” in his Employment Rights in Britain and Europe, 1991 and “Change Struggle and Ideology in British Labour Law: From Rookes v Barnard to a Royal Commission” in his Labour Law and Freedom, 1995.

[13] See G. Gall and S. McKay ‘Injunctions as a legal weapon in industrial disputes’ British Journal of Industrial Relations, 1996, 34/4:567-582, and G. Gall ‘Injunctions as a legal weapon in industrial disputes, 1995-2005’ British Journal of Industrial Relations, 2006, 44/2:327-348.

[14] S. Milner, ‘The coverage of Collective Pay-setting institutions in Britain, 1895-1990’ British Journal of Industrial Relations, 1995, 33/1:69-92, p69. This includes terms set by institutions to which trade unions were parties such as Wages Councils.

[15] H. Grainger Trade Union Membership 2005, DTI, 2006, p.12 and table 28, p.39. This conclusion from the Labour Force Survey is supported by the WERS survey: B. Kersley, C. Alpin, J. Forth, A. Bryson, H. Bewley, G. Dix and S. Oxenbridge, Inside the Workplace: First Findings from the 2004 Workplace Employment Relations Survey, DTI, 2005, p.20, found that in 2004, 35% employees had their pay set by collective bargaining and 57% by management alone. Plainly the inability of unions to collectively bargain for members is one of the principal reasons for the decline in trade union membership since 1979. In 2004, there were 7,559,062 trade union members: Annual Report of the Certification Officer, 2005. In 1979, there had been 13.2million trade union members: Annual Report of the Certification Officer, 1980.

[16] For a discussion of the impact of the decline of collective bargaining on the structure of industrial relations in Britain see P. Davies and M. Freedland “National Report, United Kingdom” in S. Sciarra (ed.) The Evolving Structure of Collective Bargaining in Europe 1990-2004, 2005.

[17] The third statutory scheme.

[18] Note the dramatic rise in the number of recognition deals recorded in the TUC survey, Focus on Recognition, 2004, p 2, where the number of deals doubled in 1999 over 1998, doubled again in 2000 and more than doubled in 2001, after which the number began to drop.

[19] In 2003, because a fluctuation in the size of the overall workforce, although the percentage rose slightly, the actual number of workers covered (even more) slightly declined, i.e. 7.273m in 2002 to 7.236m in 2003.

[20] That is an important observation for it has become apparent that the introduction of the statutory recognition machinery slowed and perhaps halted the spate of derecognition initiatives of employers in the late 1990s. The extent to which an easing of the restrictions on trade unions organising secondary industrial action might allow unions to prevent derecognition and so maintain collective bargaining coverage must therefore be in grave doubt. On the other hand, such an easing of restrictions would allow unions to seek to extend collective bargaining coverage.

[21] G. Gall, ‘Trade Union Recognition in Britain – An Emerging Crisis for Trade Unions?’ Economic and Industrial Democracy, forthcoming, 2007, 28/1

[22] G. Gall, ‘Trade Union Recognition in Britain – An Emerging Crisis for Trade Unions?’ Economic and Industrial Democracy, forthcoming, 2007, 28/1.

[23] National Statistics Online, available at www.statistics.gov.uk/cci/nugget.asp?id=407. Figure for 1998-2005.

[24] G. Gall, ‘Trade Union Recognition in Britain – An Emerging Crisis for Trade Unions?’ Economic and Industrial Democracy, forthcoming, 2007, 28/1. The TUC record in their Focus on Recognition (April 2006), 61 deals (voluntary and statutory) for the year to October 2005 down from 179 the previous year and 166 to for the year to October 2003. By March 2005, the CAC had received 444 applications in the first 5 years of the statutory mechanism. Of these 46 resulted in recognition without a ballot and 70 in recognition after a ballot (out of 110 – ‘a significant failure rate’ as P. Smith and G. Morton point out in “Nine Years’ New Labour: Neo-Liberalism and Workers’ Rights’, (2006) 44 BJIR 401). Consequently, the interpretation of the impact of the statutory union recognition put forward by J. Blanden, S. Machin and John Van Reenenin ‘Have Unions Turned the Corner? New Evidence on Recent Trends in Union Recognition in UK Firms’ (2006) BJIR 44: 169-190 is somewhat erroneous. Indeed, the Workplace Employment Relations Survey (WERS4/WERS 2004) confirms this (see B. Kersley, C. Alpin, J. Forth, A. Bryson, H. Bewley, G. Dix, and S. Oxenbridge Inside the Workplace: Findings from the 2004 Workplace Employment Relations Survey, 2006, London, Routledge, pp120-122).

[25] European Industrial Relations Observatory, Collective Bargaining and Extension Procedures, May 2005, available at www.eiro.eurofound.eu.int.

[26] European Industrial Relations Observatory, Collective Bargaining and Extension Procedures, December 2002, available at www.eiro.eurofound.eu.int. For a useful description of collective bargaining in the countries of the EU see Comision Consultiva Nacional de Convenios Colectivos, Ministero de Trabajo y Asuntos Sociales, Collective Bargaining in Europe, 2004.

[27] In particular the never ending loss of jobs in the traditionally well organised sectors such as manufacturing where 1m jobs have been lost since 1997 (Guardian 17 March 2005). The converse proposition is illustrated by the fact that since the implementation of the Working Time Regulations which were intended to restrict the long hours culture, the percentage of British workers working over 60 hours a week has risen from 12% (in 2000) to 16% (in 2003) at a time when statutory recognition was taking hold. It is not credible that had these workers been covered by collective agreement this would have been allowed to happen: DTI study, 2004: available at www.dti.gov.uk/work-lifebalance/press300802.html. Amongst women the increase has been from 6% to 13% in that time.

[28] As Kahn-Freund wrote: “the main object of labour law has always been, and I venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship.” (Labour and the Law, 2^nd edn., 1977, Chap. 1 at p.6 and see K. Klare, “Countervailing Workers’ Power as a Regulatory Strategy”, and R. Welch, “Into the Twenty First Century – the continuing Indispensability of Collective Bargaining as a Regulator of the Employment Relation”, both in H. Collins, P. Davies, R. Rideout, Legal Regulation of the Employment Relation, 2000.

[29] P. Smith and G. Morton, “New labour’s Reform of Britain’s Employment Law: the Devil is not only in the Detail but in the Values and Policy too”, (2001) 39 Br. J. I. R. 119-138; S. Moore and K. Ewing, “The Impact of the Trade Union recognition Procedure under the Employment Relations Act 2000-2002” in H. Gospel and S. Wood (eds.), Representing Workers: Trade union Recognition and Membership in Britain, 2003; S. Moore, “Union Mobilization and Employer Counter Mobilisation in the Statutory Recognition Process” in J. Kelly and P. Willman (eds.), Union Organisation and Activity, 2004.

[30] K. D. Ewing, “The Function of Trade Unions”, [2005] 34 ILJ 1-22.

[31] Section 1, Trade Union and Labour Relations (Consolidation) Act 1992.

[32] [2002] IRLR 128, 35 EHRR 523.

[33] Though the latter is said to be subject to national laws and practices – whatever that means. Other instruments are as unequivocal as the European Social Charter and the International Covenant, e.g. Art.9.3 of the Copenhagen Declaration of the Conference on Security and Co-operation in Europe. The modern, democratic Constitution of the Republic of South Africa follows the example of many western European States and embeds the right to strike in it (indeed in the Bill of Rights within it).

[34] See T. Novitz, International and European Protection of the Right to Strike, 2003, Oxford and the references therein.

[35] NUMSA v Bader Pop (Pty) Ltd 2003 (3) SA 513.

[36] Lord Wright in Crofter Hand Woven Tweed v Harris [1942] AC 435 at 463.

[37] British Telecommunications plc v Ticehurst [1992] ICR 383;(save for the exceptional circumstances of a case like Bugess v Stevedoring Services Ltd (Bermuda) [2002] UKPC 39): Miles v Wakefield MDC [1987[ ICR 368, per Lord Templeman; Wiluszynski v Tower Hamlets LBC [1989] IRLR 259; NCB v Galley [1958] 1 WLR 16.

[38] Thus, the UN Committee on Economic, Social and Cultural Rights held in 1997 and reiterated in 2002, in its regular reviews of the UK: that failure to incorporate the right to strike into domestic law constitutes a breach of Article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike. The Committee does not find satisfactory the proposal to enable employees who go on strike to have a remedy before a tribunal for unfair dismissal. Employees participating in a lawful strike should not ipso facto be regarded as having committed a breach of an employment contract . . . The Committee recommends that the right to strike be established in legislation, and that strike action does not entail any more the loss of employment, and it expresses the view that the current notion of freedom to strike, which simply recognises the illegality of being submitted to an involuntary servitude, is insufficient to satisfy the requirements of Article 8 of the Covenant . . .

[39] See Carter v Credit Change Ltd [1979] IRLR 361 (CA) and Jacobs v Norsalta Ltd [1977] ICR 189 (EAT); Cahm v Ward and Goldstone Ltd [1979] ICR 574 (EAT); and Warnock v Scarborough Football Club [1989] ICR 489 (EAT). Cf. Automatic Switching Ltd v Brunet [1986] ICR 542 (EAT).

[40] The hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 4^th ed., 1996, ILO, para.570.

[41] See G. Gall, “Injunctions as a Legal Weapon in Industrial Disputes in Britain 1995-2005”, (2006) 44 BJIR 327-349.

[42] American Cyanimid Ltd. v Ethicon Ltd. [1975] AC 396 at 407 and on the perennial problem of the labour injunction in trade union law see the seminal chapter by Lord Wedderburn, “The Injunction and the Sovereignty of Parliament: Control of Judicial Discretion?” in his Employment Rights in Britain and Europe, 1991.

[43] Thus, the Council of Europe’s Social Rights Committee held, in relation to the UK, in 1992: It is open to an employer to seek an interlocutory injunction in cases where a strike may be unlawful and that such an injunction may be granted provided the employer can show that there is a case to answer, without the court deciding the issue on the merits. Thus, any removal of “immunities” provides for more situations where a strike may be halted, quickly, reducing the effectiveness of the right to strike in achieving collective agreement. And the ILO Committee of Experts held in 1994, in relation to the UK: The common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the Committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action in order to protect and to promote their economic and social interests.

[44] That is, whether the least risk of injustice lies in the grant of the injunction in the event that it turns out at trial that it should not have been granted; or in not granting the injunction in the event that it turns out at trial that it should have been granted.

[45] The fact that this was a statutory duty would overcome any objection under the Data Protection Act.

[46] See footnote XXX above [Freedom of Association and Collective Bargaining (the General Survey of the Committee of Experts), 1994, ILO, para.168].

[47] See footnote XXX above [Report of the Committee of Experts on the Application of Conventions and Recommendations, 2000, ILO p.290-291 (in relation to the UK and Convention 87 – repeated about the UK in almost every succeeding year). The same approach was expressed by the European Social Rights in relation to the UK and Art.6(4) of the European Social Charter: e.g. Conclusions XVI-1, p.688-9.]

[48] See, for example, the Observation on the UK made by the ILO Committee of Experts in 2004, International Labour Conference, 75^th Session, which stresses that: workers should be able to participate in sympathy strikes, provided the initial strike they are supporting is lawful, and to take industrial action in relation to matters which affect them even though the direct employer may not be a party to the dispute, and requests the Government to continue to keep it informed in its future reports of developments in this respect.

[49] Viking Line ABP v ITWF [2006] IRLR 58.

[50] Thus, overcoming the artificiality established in Dimbleby & Sons Ltd v NUJ 1984] ICR 386.

[51] University College London Hospital NHS Trust v UNISON [1999] ICR 204.

[52] RMT v Midland Mainline Ltd [2001] IRLR 813 at 816. S.227 was a mended in 2004 to reverse this but a parallel amendment is required of s.232A (b).

[53] Since it did not offer – at the least – binding arbitration or mediation in place of the right to strike

[54] A privilege granted by ss.219(4) and 232A of the 1992 Act. ILO Convention 98, Art.2 bars interference by employers in the establishment, functioning and administration of unions.

[55] It should be noted that s.62 gives the right to members to bring legal action to enforce the statutory balloting regime. The Institute of Employment Rights Group of Experts have proposed that that right should be replaced by a right to sue only on the rulebook and that every rulebook would, by statutory requirement, contain a simplified balloting code which could later replace the statutory regime.

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