Trade Unions and Industrial Conflict

Katarzyna Gromek Broc

Introduction

The purpose of this session will be to provide an overview of the role of trade unions and industrial
conflict in employment law. The first part of the class will seek to consider the role of the modern
trade union in industrial relations and its interface with members. There is therefore a need to
reflect on the modern approach to industrial relations and the rights given by employment law and
the impact that this has had on trade union activities.

The second part of the class will endeavour to consider the role of trade unions not only in modern,
westernised, employment relations, but also the broader role of trade unions in the protection of
workers around the world, particularly on the activities of multinational corporations (MNCs). This
role is perhaps important, as trade unions are arguably an important catalyst to the development of
stronger individual protection from law. Furthermore, trade unions may have some interesting
contributions to make in transnational regulation, which may be a method for workers to enjoy
greater protection.

The final part of the class will look at industrial conflict, with a consideration of the basic framework
in place to allow for strike action to take place and the protections enjoyed by workers. Evidently,
the need for a democratic mandate before strike action has caused considerable problems, as has
the concept of ‘picketing’. Furthermore, there are challenges posed in terms of whether individuals
who are union members have a right not to strike.

The Trade Union:

‘The only power is collective power’ – Kahn Freund

 The battle or interplay of collective powers?

 The method of collective bargaining?
 An important method for the delivery and protection of the right to strike?
 A system for workers to come together and influence political policy?

An important question is whether or not trade unions always have the same role. It is arguable the
role of trade unions is often historically contingent and their primary purpose may depend on a
number of different factors. Ewing has suggested that there are a number of functions that might be
fulfilled by trade unions:

 Service
  Workplace representation
 Regulatory
 Government
 Public Administration

The Right of Freedom of Association:

Article 11 of the European Convention on Human Rights and Fundamental Freedoms (1950).

Article 22 of the International Covenant on Civil and Political Rights (1966).

ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948).

ILO Core Labour Standards from the ILO Declaration on Fundamental Principles and Rights at Work
(1998).

Trade Unions and their Members – The UK Example:

UK law has regulated the relationship of trade unions with their members and with employers in a
number of ways for some years. It is sometimes difficult to determine how the relationship is
constituted, and the UK example is just one of many different ways of doing things. One particular
issue to note is that ‘closed shops’ are no longer legal in the UK by virtue of s. 137 of the Trade Union
and Labour Relations (Consolidation) Act 1992.

A – The Relationship as Contract:

Bonsor v. Musicians’ Union [1956] AC 104.

Trade Union and Labour Relations (Consolidation) Act 1992 s. 10(1)(a) – does this make a difference?

Trade Union and Labour Relations (Consolidation) Act 1992 s. 27 – terms in rulebook.

NUM (Yorkshire Area) v. Millward [1995] IRLR 411.

B – Statutory Intervention:

Statute has intervened relatively recently to give members some statutory rights against their unions
and to regulate the way in which trade unions interact with their members.

Trade Union Recognition and Employment Rights Act 1993, which amended the Trade Union and
Labour Relations (Consolidation) Act 1992. These protections were inserted into s. 174 TULRCA
1992. This created a position whereby members could only be excluded or expelled by a trade union
on specific grounds:

 A member does not meet membership criteria.

 A member does not work in the geographic area covered by the union.
 In the case of ‘house unions’, the worker no longer works for the relevant employer.
 Exclusion or expulsion of the individual worker due to individual conduct where this is not
covered by the protections under ‘excluded conduct’ and ‘protected conduct’.
The protection offered by this provision is very broad. This is allied with the provisions of ss. 64 – 65
of the TULRCA 1992, which provide that members of trade unions must not be unjustifiably
disciplined. Section 65 provides what might constitute ‘unjustifiable discipline’ and they are, inter
alia:

 Failure to observe a strike.

 Failure to breach a term of the contract of employment.
 Working with those who are not union members.
 Working for employers who do not recognise the relevant union.

Note that the union might also discipline or expel or exclude an individual if they undertake certain
political activities or are a member of a political party that might be incompatible with trade union
membership.

C – Control of Trade Union Ballots and Elections:

It is important to note that legislation in the UK has sought to place significant controls on the
exercise of the trade union’s power to engage in ballots and elect its representatives. This is to be
found in Chapter IV of the TULRCA 1992. We will not discuss this in detail, but I will flag up key
points.

D – The Growth of Individual Rights:

The growth of individual rights has arguably impacted greatly on trade unions, both modifying their
functions and arguably reducing the need for trade union membership. Consider the following:

Unfair dismissal and the Employment Rights Act 1996.

The right to wages under the Employment Rights Act 1996.

The National Minimum Wage Act 1998.

Rights to maternity/paternity leave etc. under European Directives and the relevant legislation.

The Future Role of Trade Unions in Western Economies?

It is arguable that the trade union will find itself playing a reduced role in many parts of the
developed world and that their traditional role in collective bargaining and the organisation of
industrial action is significantly diminished. Amongst others, this seems to be for the following
reasons:

(i) The collapse of unionised industries.

(ii) The increase in individual employment rights.
(iii) Labour market trends, including fewer ‘jobs for life’.
(iv) The increasing focus of trade union activities on the public sector.
(v) Strategies of multinational corporations in recognising and dealing with trade unions.
Trade Unions and Multinational Corporations:

It is relevant to dwell briefly on the interface between trade unions and multinational corporations
(MNCs). The reason why we look at this is that it is clear that MNCs have a vital role in providing FDI
in many developing economies, so it is important to consider the ways in which trade unions can
have an impact on the activities of MNCs, not least because this could be an important catalyst for
the development of trade union rights elsewhere in developing countries’ economies.

The Role of Trade Unions:

The role of trade unions is much as described above, though perhaps with some stronger focus on
the traditional ‘core’ activities of collective bargaining and potential industrial conflict. Trade unions
have perhaps also been valuable in contributing to certain regulatory functions in relation to MNCs
which operate in developing countries.

The Legislative Framework:

It is evident that the laws of ‘host’ countries will be the predominant factor which shapes the
interface between trade unions and subsidiaries of multinationals that are present and active in a
particular state. The willingness and ability of these states to adhere to the ILO guidelines that we
discussed earlier in the class and to abide by the Core Labour Standards is likely to determine the
extent to which trade union activity is significant. In addition to these, there are certain codes,
addressed either to ‘host’ states or to MNCs themselves which seek to set down some core
principles for behaviour. These are:

ILO (2001) Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy
Geneva: ILO.

OECD (2000) The OECD Guidelines for Multinational Enterprises Paris: OECD.

The Role of Trade Unions in Other Regulatory Processes:

Trade unions might clearly have a role beyond the bargaining and industrial conflict process. In
particular, trade unions can be part of the regulatory process which impacts on MNCs. Think not only
of formal ‘state’ regulation, but also in relation to self-regulatory codes and ‘civil’ regulation. It is
clear that trade unions could have a role in all aspects of some regulatory processes:

 Using political power to have a role in the setting of standards.

 Using the people working for the MNCs to monitor these standards.
 Enforcing the standards through a variety of mechanisms, some ‘formal’, others via the use
of publicity etc.
Industrial Conflict:

The role of trade unions in industrial conflict is well known. Even today, we see that industrial
conflict and strike action can still occur in Western economies. The right to strike and the various
practical consequences of this will vary depending on the circumstances of each individual legal
system. However, there are clear obligations in international law which protect the right to strike,
along with some material which arises as a result of direct implication. Consider:

Article 22 of the International Covenant on Civil and Political Rights (1966).

ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948).

International Covenant on Economic, Social and Cultural Rights (1966), Art. 8(d).

Activities in Industrial Conflict:

 Strikes
 Action Short of a Strike (ASOS)
 Picketing

Note that the precise impacts of these will depend on the exact system of employment law that is in
place. We will consider the response of UK law to these, which is partly bound up with the fact that
the employment relationship in the UK is contractual in its nature.

The Strike:

The strike is a fundamental withdrawal of labour. In English law, such a strike is considered to be a
clear breach of contract by the employee, leading to likely discipline or dismissal for misconduct
unless the statutory protections are invoked:

Simmons v. Hoover Ltd. [1977] ICR 61.

Sehmi v. Gate Gourmet London Ltd. [2009] IRLR 807.

Action Short of a Strike (ASOS):

The difficulty with action short of a strike is that it is not a complete withdrawal of labour, but simply
action which might in some way disrupt the employer’s business. Think of the following as major
examples:

(i) ‘Work to Rule’.

(ii) ‘Go slow’.
(iii) Overtime or additional working bans.
(iv) Refusal to do certain duties.

In English law, much turns on the contractual position as to the employer’s ability to respond
effectively. The following cases give a flavour:

Secretary of State for Employment v. ASLEF (No. 2) [1979] 2 All ER 949.

Ticehurst v. British Telecommunications Plc. [1992] IRLR 219.

Burgess v. Stevedoring Services Ltd. [2002] UKPC 39, [2002] IRLR 810.

Sim v. Rotherham Metropolitan Borough Council [1986] IRLR 391.

Picketing:

Picketing is the process of demonstrating, usually outside of the employer’s premises, with the
objective of encouraging other workers to back the strike and also to raise public awareness of the
dispute with the employer. In many ways, picketing is just a form of protest.

In many countries, including the UK, there might be various forms of civil and potentially criminal
liability for those who engage in picketing and their trade unions.

In the UK, statutory immunity from civil liability and the protection of picketing is provided by ss. 219
-220 TULRCA 1992.

One particular issue is that some legal systems (the UK included) restrict the property which might
be picketed in a very limited way. Furthermore, in the UK, secondary action is now prohibited.

Means of Protection:

The law will seek to offer protection to those who are taking industrial action in some circumstances,
as a support for a ‘negative right to strike’ in the UK, or as part of a stronger ‘right to strike’ in some
other jurisdictions.

In the UK, s. 219 (as amended) of TULRCA 1992 provides what is known as the ‘golden formula’,
which protects individuals and unions from civil action should a strike take place. As you will see, this
creates a degree of uncertainty for trade unions and workers. The statute only protects those who
have a ‘dispute’ with the employer, and that must be a ‘trade dispute’.

BBC v. Hearn [1977] IRLR 273.

TULRCA 1992 s. 244(1) – between ‘workers and their employer’.

TULRCA 1992 s. 244(1) – list of ‘trade disputes’.

TULRCA 1992, ss. 288 and 238A and protection of the individual worker in unfair dismissal law.

Ballots and Notification:

Note that unions are under a duty to carry out a ballot before industrial action can take place (and
this has attracted considerable litigation) and that the employer must be notified of the intention to
take strike action. We will not consider these issues in any detail.
What Might We Learn?

Trade unions might fulfil a number of different functions in industrial relations, beyond those in
relation to industrial conflict and collective bargaining. It is possible to demonstrate that the
changing structure of labour markets, particularly in developed countries, is leading to a diminution
in the number of trade union members and thus the strength of the movement.

In the developing world, the trade union movement perhaps has more to add, not least in the sense
that industrial conflict and collective bargaining might have a relatively higher level of importance.
Trade unions might also prove to be a vibrant part of civil society, assisting in ‘civil regulation’.

Finally, we briefly considered the nature of industrial action, drawing some inspiration from the
basics of UK law to demonstrate the need for a regulatory regime before strike action is taken and in
order to facilitate the right to strike. Without this, employers, employees and trade unions are all
impacted negatively.

Readings:

On Trade Unions and Industrial Conflict in UK Law:

D.G. Blanchflower ‘International Patterns of Union Membership’ (2007) 28 British Journal of

Industrial Relations 1.

K.D. Ewing ‘The Function of Trade Unions’ (2005) 34 Industrial Law Journal 1.

Lord Wedderburn ‘Labour Law 2008: 40 Years On’ (2007) 36 Industrial Law Journal 397.

S. Deakin and G. Morris (2009) Labour Law – 5th Edition Oxford: Hart Publishing, chapters 8 – 11
(selectively!).

J. Bowers QC et al. (2011) The Law of Industrial Action and Trade Union Recognition – 2nd ed. Oxford:
OUP

On Broader Issues in International Law and in Relation to MNCs:

P. Muchlinski (2007) Multinational Enterprises and the Law – 2nd ed. Oxford: OUP, chapter 12.

OECD (2000) Policy Brief: International Trade and Core Labour Standards Paris: OECD.

Singh, A. and Zammit, A. ‘Labour Standards and the 'Race to the Bottom': Rethinking Globalization and
Workers' Rights from Developmental and Solidaristic Perspectives’ (2004) 20 Oxford Review of Economic
Policy 85.

Mayne, R. ‘Regulating TNCs: the Role of Voluntary and Governmental Approaches’ in Picciotto, S. and
Mayne, R. (eds.) (1999) Regulating International Business: Beyond Liberalization London: Macmillan.

Kearney, N. ‘Corporate Codes of Conduct: the Privatised Application of Labour Standards’ in Picciotto, S.
and Mayne, R. (eds.) (1999) Regulating International Business: Beyond Liberalization London: Macmillan.
ILO (2002) A Guide to the Tripartite Declaration of Principles Concerning Multinational Enterprises and
Social Policy Geneva: ILO.

Alston, P. (ed.) (2004) Non-State Actors and Human Rights Oxford: OUP – You are likely to find the
contributions to part III of this book helpful.

Alston, P. ‘Core Labour Standards and the Transformation of the International Labour Rights Regime’
(2004) 15 European Journal of International Law 457.

Alston, P. ‘Facing up to the Complexities of the ILO’s Core Labour Standards Agenda’ (2005) European
Journal of International Law 467.