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Proposal for a Trade Union Freedom Bill
Equality and Employment Rights Department
March 2006
Trade Union Freedom Bill
The Fairness at Work Composite Resolution adopted at Congress
2005 called on the General Council to support a Trade Union Freedom Bill. The
Bill marks the centenary of the Trade Disputes Act 1906 which first introduced
the UK system for immunities from tortious liability for unions when organising
industrial action.
This briefing sets out proposals for legal reform. The
proposals include:
- Improved protection from dismissal and more effective remedies
for workers taking part in official industrial action;
- Simplification of the complex regulations on notices and
ballots which restrict the ability of unions to organise industrial action
where a clear majority of members have voted in support; and
- Modernisation of what constitutes a trade dispute, enabling
limited forms of supportive action, thereby ensuring that UK industrial action
laws reflect changes in UK labour market, including increased contracting
out and enabling unions to respond where employers take steps to outsource
work during the course of a dispute with a view to breaking a strike.
SUMMARY OF PROPOSALS
It is proposed that a Trade Union Freedom Bill should cover
the following issues:
Protection for individuals involved in lawful industrial
action
- Dismissals in anticipation of, during or after lawful industrial
action should be void and ineffective, unless the employer can show that the
reason for the dismissal was not connected to the industrial action.
- It should also be automatically unfair for an employer to
dismiss an employee once he or she returns to work following lawful industrial
action. This will act as a powerful disincentive to employers from
employing replacement staff and making strikers redundant.
- Interim relief should be available in all unfair dismissal
claims relating to lawful industrial action and employees who have been unfairly
dismissed should be entitled to automatic reinstatement if they request it.
- All workers should be protected from suffering detriment
or for being sued for damage as a result of their taking part in industrial
action other than appropriate deductions from wages for work not done due
to industrial action.
Industrial action notices
- A trade union should only be obliged to give a minimum of
7 days notice to the employer of the proposed commencement of industrial
action.
- The nature of the information which must be included in the
notice should be substantially simplified. Unions should be required
only to inform the employer of the category of workers, of the nature of
industrial action, and when action will commence.
- A trade union should also not lose its immunity for taking
industrial action where it accidentally includes an insignificant amount
of inaccurate information in a notice to the employer.
- An employer should be under a duty to co-operate when requested
by the union by supplying relevant information needed to enable the union
to comply with notice and balloting requirements. Where the employer
refuses to supply the necessary information, a subsequent application for
an interim injunction to prevent industrial action should fail.
Industrial action ballots
- A trade union should not lose its protection from taking
industrial action where it accidentally fails to comply with balloting rules
but the mistake would have no material impact on the outcome of the ballot.
- The current bar on industrial action where there has been
a prior call should be removed.
Industrial action injunctions
- The law on interim injunctions should be revised to provide
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. A similar
requirement in relation to interim injunctions to restrain media publication
is found in s12(3) of the Human Rights Act 1998.
Trade disputes and supportive action
- The definition of a trade dispute should be amended to include
disputes concerning a future employer and future terms and conditions of
employment, in the context of a transfer of part of a business.
- The definition of a trade dispute should be amended to include
disputes between workers and their employer and any associated employer.
- Supportive action should be permitted against a company to
which work or production has been transferred in connection with a trade
dispute.
- Supportive action should be permitted where a union reasonably
believes that an intervention by a principal supplier or customer has caused
or substantially contributed to the proposal or decision which is the subject
of a primary trade dispute.
In this second category of supportive
action the primary trade dispute which would be about a proposal or decision
of the employer, which has been rejected by workers, for example to:
- make a detrimental change to
terms and conditions of employment;
- discipline,
- dismiss workers,
- make workers redundant; or
- to hire replacement labour to
do the work which would otherwise have been undertaken by workers who
are taking industrial action or who it is anticipated will be taking
industrial action
- A union would
be required to hold a ballot and give notice before taking any form of
supportive action.
- In addition, the
remaining bar on industrial action by prison officers should be removed
by the repeal of section 127 of the Criminal Justice and Public Order Act
1994.
Non-replacement of those taking lawful industrial
action
- In addition to employment agencies being barred from supplying
agency workers to carry out work being carried out by an individual taking
lawful industrial action, a correlative duty should be placed on employers
to inform any agency that industrial action is taking place. It should
also be unlawful for employers to hire agency workers to carry out work normally
done by workers involved in lawful industrial action.
Background discussion
a) Protection for those taking part in official
industrial action
It has been long-established TUC policy that the law should
be revised to provide effective protection from dismissal for striking workers. The
ILO, UN and Council of Europe’s supervisory agencies have repeatedly
found that UK law is in breach of international human rights standards by failing
to provide effective dismissal protection for individual strikers. They
have consistently recommended that the contract of employment should be suspended
during the course of industrial action.
The TUC supports the suspension of the contract of employment
during industrial action. However it is recognised that implementing
this proposal would entail wide-ranging and highly complex changes to existing
legislation, including the rewriting of legislation on statutory immunities
from tortious liability. It is therefore proposed that, as an initial
step, the law should be amended to provide that any dismissal, in anticipation
of industrial action, during or after official industrial action should be
void and ineffective, unless the employer can demonstrate that the dismissal
was unrelated to the industrial action. This provision should apply
regardless of the length of the industrial action. It would have a similar
effect to the suspension of the contract of employment, meaning that in most
cases employers would not be able to sack employees while they were taking
lawful industrial action. When employees return to work at the end of
industrial action, the employer would be under an on-going contractual duty
to provide them with work or to pay them. It would also be important
for legislation to provide that it would be automatically unfair for an employer
to dismiss an employee when he or she returns to work after industrial action,
including redundancy. This would seriously deter employers from hiring
replacement labour and making employees redundant when they return to work
after industrial action. This would seriously deter employers seeking to lay
off the strikers.
There is also a need to strengthen the remedies available
in industrial action dismissal cases. Interim relief should be available
and employees who are unfairly dismissed for taking part in lawful industrial
action should be have the right to be automatically reinstated if they request
it.
It is also proposed that workers who take part in industrial
action should be protected from suffering detriment or from being sued for
damage incurred as a result of taking action. This proposal would ensure
that workers who do not legally qualify as employees are protected for taking
part in industrial action. In 2004 the Government extended rights for
trade union members and activities to all non-employee workers. The Bill
will extend this approach to cover protection for taking official industrial
action. It would also assist in ensuring that employers only make appropriate
deductions from wages for work which is not done due to industrial action.
Proposals:
- Dismissals in anticipation of, during or after lawful industrial
action should be void and ineffective, unless the employer can show that the
reason for the dismissal was not connected to the industrial action.
- It should also be automatically unfair for an employer to
dismiss an employee once he or she returns to work following lawful industrial
action. This will act as a powerful disincentive to employers from
employing replacement staff and making strikers redundant.
- Interim relief should be available in all unfair dismissal
claims relating to lawful industrial action and employees who have been unfairly
dismissed should be entitled to automatic reinstatement if they request it.
- All workers should be protected from suffering detriment
or for being sued for damage as a result of their taking part in industrial
action, other than appropriate deductions from wages for work not done due
to industrial action.
b) Industrial action notices
The duties on trade unions to provide employers with notice
of ballots and industrial action place onerous, costly and excessively complicated
duties on unions. They impose a significant burden on unions to keep
meticulous records of their members’ addresses, jobs, and workplaces
and often expose unions to applications for injunctions by employers to prevent
industrial action taking place, even where a clear majority have voted in a
ballot to support of the action. The Employment Relations Act 2004 repealed
the requirement on unions to supply notices to enable to the employer ‘to
make plans’, thereby removing the statutory rationale for the notices. The
2004 Act also modified the nature of information which must be provided to
employers; nevertheless the obligations on trade unions remain onerous, expensive
and highly complex.
It is therefore proposed that a trade union should
only be obliged to give a minimum of 7 days notice to the employer of the proposed
commencement of industrial action. The decision on whether to hold an
industrial action ballot or the timing of such a ballot is a matter of internal
union democracy and should not involve the employer. As a result the
current duty for unions to give notice before balloting members should be removed.
The nature of the information which must be included
in the notice should be substantially simplified. Trade unions should
only be required to provide information relating to the category of workers
being called to take action; the nature of the industrial action, i.e. whether
it will be a strike or action short of a strike; and when action will commence
and whether it will be continuous or discontinuous.
A trade union should also not lose its immunity for
taking industrial action where it accidentally includes an insignificant amount
of inaccurate information in a notice to the employer. Section 24 of the Employment
Relations Act 2004 provides that a union will not lose its protection from
taking industrial action where it accidentally fails to ballot an insignificant
number of those it intends to induce to take industrial action. A similar
provision should be introduced relating to industrial action notices.
In addition employers should be under a duty to co-operate,
when requested by the union, by supplying relevant information needed to enable
the union to comply with notice and balloting requirements. This duty
is similar to current duties in the statutory recognition scheme, where the
employer is obliged to supply the CAC or a QIP with the names and home addresses
of workers. Where the employers refuse to supply the necessary information,
a subsequent application for an interim injunction to prevent industrial action
should fail.
Proposals:
- A trade union should only be obliged to give a minimum of
7 days notice to the employer of the proposed commencement of industrial
action.
- The nature of the information which must be included in the
notice should be substantially simplified. Unions should be required
only to inform the employer of the category of workers, of the nature of
industrial action, and when action will commence.
- A trade union should also not lose its immunity for taking
industrial action where it accidentally includes an insignificant amount
of inaccurate information in a notice to the employer.
- An employer should be under a duty to co-operate when requested
by the union by supplying relevant information needed to enable the union
to comply with notice and balloting requirements. Where the employer
refuses to supply the necessary information, a subsequent application for
an interim injunction to prevent industrial action should fail.
c) Industrial action ballots
The rules on balloting should be revised to provide
that a union does not lose its protection from taking industrial action where
the union accidentally fails to comply with balloting rules but the mistake
would have no material impact on the outcome of the ballot, for example, where
the union accidentally fails to ballot a small proportion of those it intends
to induce to take industrial action, but where their votes would not have materially
affected the outcome of the ballot. In electoral law, other than in cases of
fraud, the outcome of an election cannot be challenged or overturned where
a local authority has conducted an election substantially in accordance with
the law and an act or omission did not affect the result. The TUC takes
the view that the same standards as are applied to public offices should be
applied to industrial action ballots so that the views of the majority of workers
voting in support of industrial action cannot be frustrated by an employer
by raising a technical error which would have no practical impact on the result
of the ballot.
In addition, the current bar on industrial action
where there has been a prior call should be removed. As the Midlands Mainline case
highlighted, a union cannot rectify a prior unofficial call to take industrial
action by repudiating the call and then seeking to conduct a proper ballot. This
can limit the ability of unions to seek to resolve an on-going trade dispute
and to ensure that their members’ democratic wishes are given effect.
Proposals:
- A trade union should not lose its protection from taking
industrial action where it accidentally fails to comply with balloting rules
but the mistake would have no material impact on the outcome of the ballot.
- The current bar on industrial action where there has been
a prior call should be removed.
d) Industrial action injunctions
Currently, the law permits employers to gain an injunction
against industrial action where they can demonstrate that there is a serious
issue to be tried.
Proposal:
- The law on interim injunctions should be revised to provide
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. A similar
requirement in relation to interim injunctions to restrain media publication
is found in s12(3) of the Human Rights Act 1998.
e) Trade disputes and supportive action
The other main restrictions on the freedom to take industrial
action in the UK relates to the narrow definition of a trade dispute and the
comprehensive prohibition on all forms of supportive action. The extent
of these restrictions is virtually unprecedented in the EU. The ILO,
UN, and the Council of Europe’s Committee of Independent Experts on the
European Social Charter have repeatedly found that these restrictions are in
breach of international human rights standards.
In 1982 the definition of a ‘trade dispute’ was
narrowed to provide that in order to qualify as a 'trade dispute', the dispute
must be between workers and ‘their employer’ and must relate wholly
or mainly to one or more of the matters listed in TULRCA, s 244. This
narrower definition has caused difficulties in a number of cases where unions
have sought to take industrial action against privatisation or the restructuring
or contracting out of workforces as demonstrated in University College Hospital
NHS Trust v UNISON [1999] ICR 204 which related to the building of a new
hospital under PFI. The hospital was to be built and run by a
consortium to which some Trust employees would be transferred. UNISON
sought an agreement from the Trust that for a period of 30 years the staff
transferred to the consortium (and all future staff) would be employed under
terms and conditions which were equivalent to those employees who were not
transferred. When negotiations failed to yield an agreement, industrial action
was organised by the union and a ballot was held. But in this case
the action was restrained by an injunction on the ground that there was no
trade dispute, a decision which was upheld by the Court of Appeal.
Concern has also been expressed that as the definition
of a trade dispute also now refers only to disputes between workers and their
employer, unions are prevented from organising lawful industrial action where
groups of workers are employed by associated employers. Consequently, groups
of employees who work in the same workplace, with the same employer and the
same management structure are prevented from taking supportive action because
they are technically employed by different legal entities. As a result,
it makes 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 as was demonstrated in Dimbleby & Sons
Ltd v NUJ [1984] 1 WLR 427.
In recent years, the UK labour market has changed in nature,
with the outsourcing and restructuring becoming widespread. Industrial
action law has, however, failed to keep abreast of these changes and is in
need of modernisation. While the TUC policy supports the reinstatement
of the wider formulation of a trade dispute 'connected with' one or more of
the listed items, for the purposes of the Bill, more limited amendments should
be introduced. It is proposed that the definition of a trade dispute should
be amended to include disputes, in the context of a TUPE transfer, concerning
a future employer and future terms and conditions of employment. It is
also proposed that the definition of a trade dispute should be amended to include
disputes between workers and their employer and any associated employer.
Finally it is argued that the current comprehensive ban
on all forms of supportive action needs to be revised and that the law should
allow limited supportive action, following a ballot, in specific circumstances.
It is proposed that supportive action should be permitted
in two limited circumstances. Firstly, supportive action should be permitted
against a company to which work or production has been transferred during industrial
action, with a view to breaking a strike. In such cases, supportive
action could be taken by the employees of the employer to whom the work or
production has been contracted out. This proposal is similar to provisions
in the USA where an exception is made to the general prohibition on supportive
or solidarity action where work has been transferred to another employer.
Secondly, a union should be able to organise supportive
action in cases like Gate Gourmet where the union has a reasonable belief
that at least part of the fault for the dispute with an employer lies with
a principal supplier/customer. The right to take supportive action, under
this second category, should apply where the union has already had to organise
industrial action against the first employer to defend its members from cuts
in pay or other terms and conditions, or because the employer has threatened
to discipline or sack staff, or to hire staff to replace workers who are considering
taking industrial action. One of the reasons why the employer is threatening
such action could be because the dominant supplier or customer is seeking to
squeeze the budget for a contract or asking the employer to cut costs.
In all cases of supportive action unions would be
required to comply with statutory notice and balloting requirements.
In addition,
the remaining bar on industrial action by prison officers should be removed
by the repeal of section 127 of the Criminal Justice and Public Order Act
1994.
Proposals:
- The definition of a trade dispute should be amended to include
disputes concerning a future employer and future terms and conditions of
employment, in the context of a TUPE transfer.
- The definition of a trade dispute should be amended to include
disputes between workers and their employer and any associated employer.
- Supportive action should be permitted against a company to
which work or production has been transferred in connection with a trade
dispute.
- Supportive action should be permitted where a union reasonably
believes that an intervention by a principal supplier or customer has caused
or substantially contributed to the proposal or decision which is the subject
of a primary trade dispute.
- In this second category of
supportive action the primary trade dispute which would be about a proposal
or decision of the employer, which has been rejected by workers, for
example to:
- make a detrimental change to
terms and conditions of employment;
- discipline,
- dismiss workers,
- make workers redundant; or
- to hire replacement labour to
do the work which would otherwise have been undertaken by workers who
are taking industrial action or who it is anticipated will be taking
industrial action
- A union would
be required to hold a ballot and give notice before taking any form of
supportive action.
- In addition, the
remaining bar on industrial action by prison officers should be removed
by the repeal of section 127 of the Criminal Justice and Public Order Act
1994.
f) Non-replacement of those taking lawful industrial
action
The Conduct of Employment Agencies and Employment Businesses
Regulations currently bars employment agencies from supplying agency workers
to carry out duties normally performed by a worker undertaking lawful industrial
action or lawful strike action or to replace a worker who has been assigned
to do the work normally performed by a worker undertaking lawful industrial
action or lawful strike action. However this duty does not apply if
the agency does not know or has no reasonable ground for knowing that the first
worker is taking industrial action. It is proposed that that the Regulations
should be extended to impose an equivalent duty on the potential hirer of agency
workers to inform the agency of the industrial action and to make it unlawful
for the employer to hire agency workers to carry out work normally done by
workers involved. In lawful industrial action.
Proposal:
- In addition to employment agencies being barred from supplying
agency workers to carry out work being carried out by an individual taking
lawful industrial action, a correlative duty should be placed on employers
to inform any agency that industrial action is taking place. It should
also be unlawful for employers to hire agency workers to carry out work normally
done by workers involved in lawful industrial action.
Briefing document (4,100 words) issued 8 Mar 2006 |
