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Strikes And Industrial Action Notes

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Labour 7 Action

Strikes

and

Industrial

STRIKES AND INDUSTRIAL ACTION THEORETICAL

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Justifications: action accepted fact that it damage?

1. right
to being

2. 3.

4. *

*

Abbreviations: EE Employee ER Employer COE Contract of Employment EAT Employment Appeal Tribunal ET Employment Tribunal TU Trade Union D&M Deakin & Morris' textbook FT Fixed term (contract) SOSR Some Other Substantial Reason IA Industrial Action

ISSUES why is industrial as a given, despite represents waste of resources/economic Fundamental human denial could amount forced to work Democracy

Equilibrium ERs hold concentrated power of capital - can only be balanced out by workers acting together. Autonomous sanctions collective bargaining as autonomous norm-making.

The right to strike can either be seen as (a) in a human rights framework, removed from TUs hence inherent to each individual, or (b) within the framework of collective bargaining hence under the complete control of the TUs. International guarantees are contained in socio-economic treaties, rather than those on civil/political rights.
International Convention on Economic, Social and Cultural Rights (ICESCR) article 8, though it is subject to limitation of conformity with national law
European Social Charter art 6 places the right firmly in collective bargaining framework "with a view to ensuring the effective exercise of the right to bargain collectively". But has been read much more widely by the European Committee on Social Rights, which has also criticised UK in relation to the requirements of balloting and notification.
But NOT contained/referenced to in the ILO Conventions on freedom of association (no 87) and right to collective bargaining (no 98)

But supervisory bodies (Committee of Experts, and Committee on FoA) have derived the right to strike from the general freedom of association principles.

In their view, right to strike belongs both to indiv workers (HR framework) and TUs (collective framework)

NB: UK law falls shorts of these international standards. The advisory bodies have criticised:

UK law's restriction of immunity to workers and their own ER - TU can't take action against another ER which might actually be behind the actions they are challenging. This is a huge restriction, given the complex corporate structures today.

Lack of protection of action with a political dimension

Restriction on solidarity and secondary action, including picketing.

ECtHR/ECJ jurisprudence has seen recent development. Until lately, ECtHR refused to imply right to strike from right to form/join TUs in art 11 ECHR (freedom of association)

UNISON v UK, 2002: ECtHR held that restrictions of the right fell within art 11(1) hence had to be justified under art 11(2), cos it was a restriction on TU's power to protect members' interests.

But specifically said art 11 does NOT expressly include a right to strike. At most, it safeguards interest of TUs in protecting members' rights - indirect; there are other means to do so besides strikes.

Enerji Yapi-Yol Sen v Turkey, 2009: ECtHR held that ban preventing public sector EEs from taking part in national strike in support of right of collective bargaining violated art 11 1

Labour 7 Action

Strikes

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Industrial

So appeared to accept there is right to strike under art 11, but only by Chamber of 7 judges not Grand Chamber. Also said that right to strike is not absolute and can be subject to some restrictions.

ITWF v Viking Line, 2008: ECJ confirmed that right to take collective action, including right to strike, was fundamental principle/part of general principles of EC law. But note this was accepted as a defence to ERs' claim of infringement of economic freedoms under the EC Treaty Charter of Fundamental Rights of EU affirms right to take collective action (including strikes), but has to be exercised in accordance with EC/national law.

Industrial action and EU law (in greater detail)

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ECJ has recognised freedom of association, including the right to strike, as a fundamental right! This is though the Social Policy provisions of TFEU expressly exclude these from EU organs' competence art 153(5) TFEU.

*
In Viking Line and Laval, (both 2008), ECJ referred to various international instruments - ESC/ILO Convention no 87/EU Charter of Fundamental Rights, and held that right to take collective action, including right to strike, is a fundamental right, being part of the general principles of EC law!
Limitations: recognised in context of right being a defence to ERs' claim of infringement of free movement rights by TU action.

Hence, subject to strict conditions on its exercise; required close scrutiny of each bout of IA to see if it is justified.

Also, right was recognised subject to national law provisions - if cross-border, must check other MS' law (additional requirement!)

*
Viking Line v ITWF: Finnish company wanted to reflag ferry to Estonian flag, so it could hire Estonian crew and pay them less than the Finnish crew. The International Transport Workers' Federation opposed "flags of convenience". Finnish Seamen's Union planned IA against Viking; ITWF told affiliates not to negotiate with Viking and to take solidarity IA. Viking sought injunction in English courts on ground that art 49 right to freedom of establishment was infringed.
CA set aside the injunction, and applied balance of convenience test (see below) - refused to grant interim relief!
ECJ held that in principle, collective action by TU fell within scope of art 49, and art 49 could confer rights on private undertaking (Viking) which could be relied on against TU/association of TUs (exception to no horizontal DE!)

But recognised right to take collective action as a fundamental right, forming an integral part of the framework of rights in EC law, though subjecting it to certain restrictions - had to be exercised in accordance with national law and practices, and EC law. And proportionately.

Here, collective action restricted freedom of establishment as it made Viking's exercise of right less attractive/even pointless.

JUSTIFICATION? Right to take collective action for protection of workers was legitimate interest, and protection of workers was an overriding reason of public interest - EC had not just economic, but also a social purpose. Must also be suitable and not go beyond what is necessary to obtain the aim.

Hence, ER's economic rights had to be balanced against social policy objectives.

*

ECJ left it to national courts to decide if collective action concerned protection of workers, but could not be the case if jobs/conditions of work were not "jeopardised or under serious threat" restrictive! Must also consider if TU had other less restrictive means to bring about successful resolution (proportionality), and if such means had been exhausted. Laval : Latvian company posted Latvian workers to Sweden to work on site, where they earned much less than Swedish workers. Swedish builder's union wanted L to sign CA, terms of which went beyond the requirements of the Posted Workers' Directive. Contained pay determination mechanism which precluded L from determining pay in advance. On L's refusal, builder's union, supported by electrician's union, began blockade. L sought injunction in Swedish courts, claiming IA restricted its freedom to provide services under art 56 TFEU. 2

Labour 7 Action

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Strikes

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ECJ's judgment similar to that in Viking.

TU's right to take collective action to force undertakings established in another MS to sign CA was liable to make it less attractive/more difficult for latter to provide construction services in Sweden.
Justification? ECJ accepted that right to take collective action to protect workers of host state against possible social dumping could constitute overriding reason of public interest, but action was not justified here!

There was lack of sufficiently precise/accessible provisions in national law, making it impossible/excessively difficult for L to determine minimum pay obligations it was being subject to.
**EU law does not preclude MS from applying labour legislation to any person employed within their country, but cannot make it more onerous for the incoming worker.

In Sweden, the Directive had ben complied with via nat legislation, but for area of min wages, nat law provided for min wages to be determined by CA, company to company. TU here trying to force L to sign a CA with more favourable conditions than those in the legislative provisions. While court accepted social aspects of EC law in these 2 cases, balance is still tilted towards economic - strict proportionality analysis, requiring IA to be last resort. Recognised right to strike as fundamental but still placed huge restrictions on it So basically where there is cross border element, there will be added requirements for TUs: (1) legit aim; (2) justified by overriding reasons of public interest; (3) suitable for securing attainment of the objective; (4) not go beyond what is necessary Davies thinks that courts might be getting into sensitive socio-political stuff inappropriate!
Further, the uncertainties surrounding the issues of proportionality/justification might lead court to decide there is serious issue to be tried at interim stage - favours granting of injunction!

Structure for establishing liability of TU for IA What are the likely torts that will be committed via the industrial action?
Is the union liable?
Under statutory provision of s20 Or under CL vicarious liability Is the union immune from liability? (the 3 elements are accumulative) Is the tort within s219?
Is there a trade dispute within s244?
Is the IA in contemplation or furtherance of that trade dispute?
Has immunity been lost?
Picketing outside s220 Secondary action under s224 Action for prohibited reasons: s222, 223 and 225 Failure to meet notification and balloting requirements: s226-234 What remedies are available against the union?
Injunction Damages

LEGAL LIABILITY FOR INDUSTRIAL ACTION General overview of English approach

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Historically, most constraints came from the criminal law. Popular demand led to Conservative Govt of 1875 introducing Conspiracy and Protection of Property Act - repealed Master and Servants Acts and reversed effect of Bunn. 3

Labour 7 Action

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Also, golden formula appeared!

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Since 1875, role of criminal law has been largely confined to picketing. Though there are some professions (police/armed forces/postal/merchant seamen) for which industrial action remains illegal. But seems like formality, other than for police, since there has been IA which went un-prosecuted.
UK govt tends to invoke Emergency Powers Act 1920 when essential services threatened.

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Focus is now on civil law! While there was statutory protection against criminal liability, from 18911906, courts effectively outflanked these protections by expanding tortious liability - new tort of conspiracy to injure, and application of tort of inducing breach of contract to IA.
Taff Vale case, 1901: HOL decided that registered TU, though not corporate body, could be sued for torts of its officials.
South Wales Miners' Federation v Glamorgan Coal, 1905: not a defence against inducing breach of contract that conduct was for honest desire to promote interests of TU members, and not injure the ER. But Liberal govt enacted Trade Disputes Act 1906 (**) because of protest against the above, and accorded comprehensive immunity both to TUs, and to persons who committed tort of conspiracy etc in contemplation/furtherance of trade dispute, against tortious liability. Also permitted peaceful picketing. [immunity-based, not rights-based, approach]
This act remained till 1971 and was the foundation of the freedom to organise IA.

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Essentially, reflects ideal that where parties are acting peacefully and for "industrial" objectives, law won't interfere in their disputes.
Hence, dispute settlement was left to be regulated by collective parties themselves; bound by procedure/results only if they had chosen to be earlier. Significance of the role of courts; courts' outflanking statutory immunities:

**Rookes v Barnard, 1964: HOL held that tort of "intimidation" applied to IA! Said TU not liable to ER, but liable to indiv EE, having threatened strike action unless that EE was dismissed.

Labour Govt then introduced Trade Disputes Act 1965 to extend immunity to tort of intimidation. Courts retained overriding discretions to grant injunctions against IA - interim proceedings could effectively decide the issue, given time-sensitivities!
(NB: breach of injunction = contempt of court; severe penalties! not much better than criminal law's sanctions, especially since there are fewer procedural safeguards for Ds in civil courts) Donovan Commission Report 1968: should rely on collective bargaining institutions/procedures, not the law, to constrain and regulate IA. But Conservative Govt didn't think so - enacted Industrial Relations Act 1971, removing system of immunities and replacing it with framework of new liabilities - "unfair industrial practices". But this didn't have much practical effect anyway!
**Next Labour Govt then restored the structure of the 1906 Act, emphasising it further by extending statutory protection against tortious liability, and extending definition of "trade dispute".

Some judges didn't agree - Lord Denning opposed it, and led CA to try to restrict scope of the golden formula.

Surprisingly, in the face of this, Labour Govt didn't extend the protection to participants in the dispute (only protected organisers) - no immunity for individual liability for breach of contract. Only where there was selectivity between participants, for dismissal, would there be a claim. Hence, individuals left vulnerable! Might lose access to other statutory rights. Then came winter of discontent, and Conservative Govt got back to power in 1979 - began restriction/regulation, confining lawful industrial action in terms of purpose/scope/procedure.

Removed immunity for secondary IA/picketing.

Increasingly prescriptive/complex balloting requirements imposed. And for notification. TUs lost comprehensive immunity against liability in tort. Enacted means for members of public to bring proceedings against TU for IA (could get assistance from Commissioner for Protection Against Unlawful Industrial Action) 4

Labour 7 Action

Strikes

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TU members had right not to be "unjustifiably disciplined" by TU for refusal to participate in IA Labour Govt came back to power in 1997...didn't change much. Affirmed commitment to maintain key features of the existing law.

ERelA 1999 made it automatically unfair to dismiss EE for taking "protected" IA. But limited scope! Must be an act that falls within statutory immunities. Few other changes in protection for indiv EEs.

IA still remained as a breach of the contract of employment.

Impact of HRA 1998 and UK courts' interpretation of art 11?

Had potential significance, but in Metrobus Ltd v Unite, 2009, CA, in considering whether notice of ballot was defective, held that the current UK legislation was within UK's margin of appreciation. Refused to derive right of IA from international jurisprudence!

Also said "it would not be prudent" to follow Enerji Yapi-Yol Sen.

Maurice Kay LJ said Eng law did not bestow a statuary right to strike, but instead has provided limited immunities from tortious liability - outside scope of immunities, common law liability will still apply. Must keep this background in mind when applying statutory provisions today.

Lloyd LJ said that decision in Enerji Yapi was a more summary discussion, compared to the explicit judgment of the Grand Chamber in Demir (where right to strike held not to be absolute requirement). Also noted that must balance not just TU/EEs' rights under art 11, but also ER's rights under P1-1. Hence, held that UK requirements on notification/ballots were not onerous or oppressive and did not unduly restrict the exercise of the right to strike. Cf BA v Unite (No 1): Cox J found herself bound by Metrobus, but said sooner or later UK's compliance with intl obligations would have to be reconsidered. Finally came a shift in RMT v Serco Docklands; ASLEF v London Midland, 2011:

CA said bound by Metrobus on the application of art 11 but...

1. RMT v UK: argument that complexity of law on strike notices, and total ban on sympathetic IA breaches art 11. Roffey v UK: BA cabin crew members arguing UK law fails to protect their art 11 rights and to protect strikers from victimisation by ER after strike. Prison Officers' Association v UK: blanket ban on IA by prison officers breaches art 11.

CA emphasised that right to strike was recognised under art 11 now by ECtHR - can't say anymore than statutory immunities should be construed against TUs, with interests of ERs being prioritised. Rather, legislation must be construed without presumptions.

Further, shift towards more purposive interpretation of notification reqs - for breach of stat requirements on explanation of where info came from, by TU to ER, must reach threshold of "positively and materially misleading". So there are 3 potentially applications to ECtHR on art 11...

2. 3.

Tortious Liability of Organisers

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Allen v Flood, 1898: mere intention to harm another will not give rise to liability of itself, unless there is an additional element of unlawfulness. Such unlawfulness can arise from:

i) ii) iii)

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Interference with pre-existing right of claimant Torts based on the use of unlawful means

**Tort of lawful means conspiracy combination/association between multiple Ds + intention to harm C suffices for liability, even if lawful means are used (exception to need for unlawfulness) Note that many key cases are actually interim proceedings - court doesn't explore law/facts in detail, and it suffices for C to show that there is a "serious question to be tried" - American Cyanide test. I) Interference with claimant's pre-existing right 5

Labour 7 Strikes and Industrial Action A) Inducing breach of contract

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Most practically important! Useful! Allows ER to seek injunction against TU - can't seek it against the indiv EE because it would amount to compelling indiv to do work, prohibited by TULRCA s236.

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**Lumley v Gye, 1853: D held to have acted tortiously in persuading singer, contracted to sing exclusively for C's theatre, to sing at D's place instead for higher fee (D aware of contract with C).
South Wales Miners' Federation v Glamorgan Coal, 1905: TU induced EEs to break their contract by going on strike.

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OBG v Allan, 2008: HOL described it as accessory liability, depending on contracting party (EE) having committed actionable wrong! Need intention to procure breach of contract, but no need to intend to cause C harm.
SUBJECTIVE TEST: not enough that D knows he is procuring act which amounts to breach, as matter of law. D must realise that act has effect of a breach! But subject to wilful blindness/subjective recklessness.

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"inducement" - before OBG, interpreted widely to include both direct and indirect inducement! But HOL in this case held that indirect inducement (eg. Hiding EE's tools) is more appropriate classified under causing loss by unlawful means.
So persuasion/inducement must be directed at a party to the contract (the EE)!

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Middlebrook Mushrooms Ltd v TGWU, 1993: leaflets handed out by workers to customers at supermarts, not to managers of supermart (contractual parties to sell mushrooms), hence did not fall within this tort! Third parties (customers) were free to make up their own minds! Would only be unlawful if there had been some kind of unlawful means. DEFENCES...participating in IA = breach of CoE. Hence, organisers will generally commit this tort!
Further, defence of justification is narrowly construed - South Wales Miners' Federation, 1905: HOL rejected justification of members' economic interests.

B) Liability for inducements other than to breach a contract

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Lumley v Gye, 1853: general statement that procuring violation of a right will give rise to course of action, as long as violation is an actionable wrong.

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Recent cases see courts using this to extend tortious liability to inducement to breach equitable obligation/statutory duty - TUs not protected by stat immunities (not within s219 TULRCA)!
Meade v Haringey LBC, 1979: not decided conclusively (interim proceedings), but it was suggested that TU, by calling on ER to close schools, could be inducing authority to breach statutory duty.
Note stat duty must be independently actionable by the particular claimant (standing!) Depends on whether duty was imposed for benefit of particular class of persons to which C belongs. Quite rare for C to have standing!

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Conservative Govt has specifically incorporated this liability in statute!

Communications Act 2003. Criminal Justice and Public Order Act 1994 s127: duty not to induce prison officer to withhold services, otherwise actionable by SoS.

II) Causing loss by unlawful means General

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Where A intentionally causes loss to B by wrongfully interfering with some activity of a third party in which A has an economic interest. A uses unlawful means with the intention of causing B loss.

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OBG v Allan: Lord Hoffman also said the tort was essentially...

(a) (b)

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Wrongful interference with third party's actions in which C has economic interest, and Intention to cause loss to C.

This is tort of primary liability (unlike inducement!) Note there's probably no defence of justification!
Before OBG, deciding on whether means were lawful or unlawful depended on whether A had legal right to do what he was doing. 6

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Rookes v Barnard, 1964: 2 shop stewards and TU threatened ER with strike unless non-unionist (R) was dismissed. R dismissed, lawfully, by ER - couldn't sue ER. Instead, sued TU - upheld to be tort of intimidation! TU's coercion was unlawful because threat of strike action = threatened breach of CoE.
Associated British Ports v TGWU, 1989; CA held that inducing breach of statutory duty may constitute unlawful means (and note that here, no need for duty to be independently actionable by C, unlike inducement).

Also suggested that breach of contract per se could constitute unlawful means...leaving indiv participants open to liability (no statutory immunity).
So had very wide scope. Included threats of unlawful action (which would usually come under intimidation), and torts of nuisance and trespass. OBG v Allan: did not expressly overrule Rookes, but said that for act against third party to constitute unlawful means, had to be actionable by that third party unless only reason they were not actionable was because the third party suffered no loss
Excludes commission of a crime/breach of non-independently actionable statutory duty as basis, since these are not independently actionable.
Apparently conflicts with Rookes but current position is unclear.

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If basing it on an EU law right, the Eu law right must be horizontally directly effective to be individually actionable. So does a breach of contract have to be independently actionable now?

Decision in OBG makes it seem like it, but there was no express overruling of Rookes v Barnard. D&M thinks one interpretation is that there are now 2 forms of the unlawful means tort:

1. Tort of intimidation, where the threats themselves constitute the unlawful means, and do NOT need to be independent actionable by themselves.

2. Tort of causing loss by unlawful means (OBG), where independent actionability required. Most interim proceedings will concern (1). Hence, Lord Hoffman's narrowing of the concept might not be of much practical significance.TORT OF INTIMIDATION

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Tort of intimidation (threat of unlawful acts) comes under unlawful means (OBG v Allan)

Significant in the field of industrial action!
Where A threatens B he will commit act/use means which are unlawful as against B, with intention of causing B to do/not do something which B is at liberty to do/not do, hence causing damage to B (2-party intimidation) or C (3-party intimidation). Application of physical force/violence/threat of violence is clearly unlawful means. In Rookes v Barnard, 1964, HOL accepted that threat to break a contract could suffice!

TU threatened to breach contractual no-strike clause, unless R was dismissed. Hence, though R couldn't sue TU for breach of contract, could claim for tort of intimidation, cos breach of contract was unlawful act, as much as threat of physical harm!
Has been suggested that breach of contract threatened should be more than minor.

2-party intimidation and economic duress
There is view that if threat is breach of contract, and it's a case of 2-party intimidation, then Rookes v Barnard shouldn't apply (this was a 3-party case).

Pretty clear that 3-party intimidation comes within scope of the tort. But difficulty arises for 2 party intimidation (where one contractual party intimidates another contractual party, causing loss to the latter - both parties being in contractual relationship, there is risk that if tortious liability is introduced, contractual rules of remoteness and mitigation would be circumvented

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