Industrial Action Notes

INDUSTRIAL ACTION

Industrial action

Posner –Employers may be tempted to refuse to accept union’s demands (threaten to buy nothing rather than come to terms) and the union must either strike or back down. Union cannot just write off the employer though – union will be voted out/employer free to go their own way. Classic example of bilateral monopoly – union and employer can deal only with each other and a refusal to deal (by imposing costs) makes them more likely to come to terms. Labour law affects these costs e.g (i) it allows ER to hire replacements for the striking workers during strike and (ii) ER can’t fire the striking workers who have been replaced.

Kahn-Freud and Hepple – Why do we tolerate them? They are disruptive and impose costs on parties yet there seems to be general consent that they are an indispensable element of a democratic society.

1. Equilibrium argument – the concentrated power of accumulated capital can only be matched by the concentrated power of the workers acting in solidarity (more bargaining power w more ppl).

2. Autonomous sanctions (corollary to collective bargaining)– contract terms not regulated by legislation by predominantly collective action – argued to be more desirable that those who have made the autonomous rules, should also wield the sanctions (TUs+ ERs)- shouldn’t be left for inidivudals who didn’t participate in rule-making to enforce the terms. Strike is to match managerial prerogative. Sometimes an agreed grievance procedure is too slow so strike is the factual power of management unilaterally to change the conditions of worksocial necessity.

• Ewing + Hendy argue that without the right to strike, the right to collectively bargain is no more of a right to collective begging as need it to properly counterbalance managerial prerog.

• Marc Moore calls this the ‘structural imperative’ to legitimise and sustain the reciprocal power imbalance central to the employment relation.

3. Voluntary labour – if people cannot withdraw labour this means that the law compels them to work.

4. Psychological – necessary release of psychological tension.

Cabrelli thinks other arguments can also be added.

1. Democratic – freedom of workers to participate in a strike = essential component of a democratic society.

2. Fundamental human right – ideology of universal human rights and cast strike action as a fundamental and inalienable right conferred in favour of workers. Art 28 EUCFR and Art 11 ECHR and Viking Line.

3. Corporate governance – to legitimise the acceptance of the unilateral discretionary prerogative vested in employers, essential that recognition and protection for industrial action is provided by the law.

However, in English law there is no such thing as an inalienable right to strike.

Metrobus Ltd v Unite the Union [2010] – “the right to strike has never been much more than a slogan or legal metaphor…outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract and the economic torts”.

• While there’s a liberty to associate in TUs and certain ‘liberties’ of action by which TUs can carry on industrial struggle, the ‘right to strike’ is better characterised as a conditional freedom to strike (got to satisfy procedural/substantive conditions) in order for TU not to be liable.

• Freedom rather than a right coz balance to be struck between destructive harm caused and the need for countervailing force to management.

UK approach is to have statutory immunities, ECJ approach accepts the right to strike is a fundi principle of EU law but must be exercised in a proportionate manner ie whether there was a least restrictive alternative to achieving the TU’s legit aim instead of strike action (so proportionality is just as much a form of limitation on the lawfulness of a strike a the UK technique).

Ewing: says the legal position of British worker is ‘remarkable’. A strike, for whatever reason is a berach of contract; any form of industrial action short of strike can lead to ttotal loss pay, those engaged in industrial action may be dismissed regardless of the reason for the industrial action, there’s no right to unemployment benefit and strikers+ their fam is penalised by social welfare legislation even if dispute is the fault of the ER. This is coz new market efficiency model sees LL aim is to remove obstacles to the efficient working of the labour market (TUs+ collective bargaining being one of those obstacles)…’there is no humanity in the marketplace’.

Trade Union Liability and Statutory immunities

History:

• Traditional view = Parliament sought to minimise and the courts to maximise, the extent to which the taking of and participation in, industrial action attracted legal sanctions.

Criminal law constraints:

• Until 1875 the criminal law was central in constraining industrial action.

• The 1825 legislation created offences of molestation, obstruction and intimidation thereby specifically curtailing the freedom to strike and picket.

• Master and Servant Acts retained a criminal offence of breaking a contract of employment.

• Criminal Law Amendment Act 1871 defined the offences in the 1825 legislation more precisely. Virtually all picketing was made illegal and posting a strike notice constituted intimidation of employers.

• R v Bunn (1872): common law conspiracy by threatening to break contracts.

Shift to civil law:

• Master+ Servants Act and 1871 Act repealed by the Conspiracy and Protection of Property Act 1875 which reversed Bunn (conspiracy crime) where acts were ‘in contemplation or furtherance of a trade dispute).

• 1891-1906: courts outflank the protections given to TUs in 1875 Act by expanding liability in tort:

• Creation of the tort of conspiracy to injure (Allen v Flood)

• Tort of inducing breach of contract applied in industrial action.

• Taff Vale (1901): HOL decided that a registered TU could be sued in tort for actions committed by members acting on its behalf.

• South Wales Miners’ Federation v Glamorgan Coal Co (1905)- no defence for...

Buy the full version of these notes or essay plans and more in our Labour Law Notes.