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PREVIOUS SPEAKERS:

John Bowers QC

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Title: "ILS Talk:Modern Industrial Action; the Shift in the Balance"

PART I: OVERALL PERSPECTIVE

"This legislation is a minefield in which it is all too easy to stray from the paths of safety and legality"

PO v UCW [1990] IRLR 143 para 3 Lord Donaldson MR

"The concentrated power of accumulated capital can only be matched by the concentrated power of the workers acting in solidarity"

Kahn Freund & Hepple; Laws against Strikes (1972): p4-5

  1. THE ANATOMY OF THE INDUSTRIAL ACTION CLAIM
    1. Strike is a breach of contract;
    2. Economic torts of inducing breach of contract, interference, intimidation
    3. Trade dispute immunity; the golden formula
    4. Secondary disputes
    5. Political disputes
    6. Ballots
    7. Notice of industrial action
    8. Union liability for officers
    9. Special injunctions regime
    10. Limits on amounts of damages

B. TWO MINUTE HISTORY OF TIME

  1. Trade Disputes Act 1906 (unions were immune);
  2. "In Place of Strife";
  3. IRA 1971;
  4. TULRA 1974;
  5. EA 1980;
  6. EA 1982 (union liability; complex secondary action provisions);
  7. TUA 1984 (ballots);
  8. EA 1988;
  9. EA 1990 (all secondary action unlawful except some picketing; shop steward may call action);
  10. Trade Union and Labour Relations (Consolidation) Act 1992, TULCRA 1992 (consolidation only; all references below are to this Act);
  11. Trade Union Reform and Employment Rights Act 1993 (notice of action);
  12. Employment Relations Act 1999 (unfair dismissal & strikers, some tidying up);
  13. current review of impact of Employment Relations Act 1999;
  14. Code of Practice on Ballots.
C. WHAT IS THE ANATOMY OF MODERN INDUSTRIAL ACTION
  1. In 2003 1323300 working days were lost in the UK from 146 stoppages of work. This was more than twice the total in 2001 and was the highest annual total since 1990;
  2. decrease in industrial action in private sector; 90% was in public or recently privatized public sector; DLA survey;
  3. 50% pay; 25% working conditions; 15% other issues; few on recognition;
  4. New forms of organisation of industrial. Action through internet, informal action groups;
  5. There are very few "all out strikes" but timeframe of dispute has been extended; eg fire strike;
  6. Close consensus between the political parties.
D. THE PERCEPTIBLE CHANGE IN TEMPERATURE
  1. the remedy of dismissal has diminished to vanishing point;

    2. The employer is no longer able to resort to dismissal as an industrial tactic. Protected action is action induced by acts not actionable in tort because of s.219 TULCRA 1992 as amended in 1999. To qualify as protected, the dismissal must have occurred either (i) within eight weeks beginning with the day on which the employee started to take industrial action or (ii) after the end of the eight-week period but the employee had ceased to take part in the action before the end of the period or (iii) after the end of the eight week period but the employer had taken no reasonable `procedural steps’ to resolve the dispute. Section 238A(6) regard should be had, in particular, to: (a) whether the employer or a union had complied with procedures established by any applicable collective or other agreement; (b) whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action; (c) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used; (d) whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute.

  2. The approach of the judges
    1. ABP v TGWU [1989] IRLR 305; [1989] ICR 590
    2. National Union of Rail, Maritime and Transport Workers v Midland Mainline Ltd [2001] IRLR 813
    3. UNISON v UCLH [1999] IRLR 31
    4. Rookes v Barnard [1964] AC 1129
    5. P v NAS/UWT [2003] IRLR 309
    6. Burgess v Stevedoring Services Ltd [2003] IRLR 810.
3. The European Convention on Human RightsArticle 11 of the Convention (given direct effect in English law by Human Rights Act 1998) states that everyone has a right to freedom of association, including the right to form and join trade unions for the protection of his interests. Restrictions on that right, if they are to be lawful, must be prescribed by law, and 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 (art 11(2)). The restriction must be proportionate to the interest pursued.
  1. Schmidt and Dahlström v Sweden 6/2/76 Series A no. 21;
  2. Gustafsson v Swdden (1996) 28 EHRR 409;
  3. Schettini v Italy Application no 29529/95 9 Nov 2000));
  4. Unison v. UK [2002] IRLR 497;
  5. Federation of Offshore Workers’ Trade Unions v. Norway (App 38190/97, 27/6/02);
  6. Wilson, Palmer & Doonan v. UK [2002] IRLR 568.

PART II: THE GOVERNMENT REVIEW

D. THE GOVERNMENT REVIEW OF THE EMPLOYMENT RELATIONS ACT 1999

D1 The two issues in the Paper

    1. the s226A bomb warning; "must give notice of such information as the union’s possession as would help the employer to make plans and bring information to the attention of those of his employees who is reasonable for union to believe will be called out; as minimum number, category and location";

      2. BT v UCW [2003] EWHC 937, 11.4.03;

    2. ignoring accidental mistakes

LU v RMT [1996] ICR 170.

D2 Two issues which should be added to the agenda

a. Suspension of contract in a strike

Morgan v Fry [1968] 2 QB 710

b. A full jurisdiction labour court.

JOHN BOWERS QC
Littleton Chambers
3 Kings Bench Walk North
Temple
London EC4Y 7HR.

08 September 2003

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