Friday, 23 October 2009

On my facebook page I've had a lot of questions about why we don't have an online ballot and what is the definition of industrial action?

The Law on Industrial Action


The law relating to industrial action is to be found in:

· Trade Union and Labour Relations (Consolidation) Act 1992;
· Trade Union Reform and Employment Rights Act 1993;
· Employment Relations Act 1999.

There is also an advisory code of practice on picketing.

The law covers:

· the definition of industrial action;
· strikes;
· ballots on industrial action.

Industrial Action Defined

In legal terms, 'industrial action' means:

· strikes;
· lockouts;
· overtime bans (including voluntary bans);
· go slows;
· working to rule;
· refusing to cross a picket line;
· refusing to work with non-members.

Strikes and the Law

British employment law has no tradition of a positive right to strike, and industrial action is a breach of the employment contract. The tradition, instead, is that of 'immunities'; that is, immunity from legal action so long as certain conditions are met. Since 1979, these conditions have become more rigid and complex.

The law gives trade unions immunity for actions "in contemplation or furtherance of a trade dispute". A 'trade dispute' is a dispute between workers and an employer in the UK, which is "wholly or mainly" about:

· terms and conditions of employment;
· recruitment, suspension or dismissal;
· work allocation;
· discipline;
· facilities for union officials;
· the negotiating machinery.

There is no immunity for disputes which:

· are 'political';
· have not yet started;
· are over union membership;
· are protests over dismissal following unofficial action;
· constitute 'secondary action'.

To be lawful, therefore, industrial action must be a trade dispute. It must also be 'official', and it must comply with the requirements relating to ballots (see below).

Official and Unofficial Industrial Action

To maintain immunity, industrial action must be 'official'. This means that:

· the employee(s) taking action must belong to a trade union, and;
· the union (usually the executive committee) must authorise or endorse the action.

Action which does not meet these requirements is unofficial and, therefore, unlawful. Workers can be lawfully dismissed for taking part in unofficial action.

Unions are legally responsible for all industrial action, unless they have 'repudiated' it.

If there is unofficial action and the union wishes to make it official, the action must be repudiated before a ballot is held.
Industrial Action Ballots

In any case where industrial action may be necessary, a ballot must be held. In addition, the ballot must comply with a series of requirements.

First, the employer must be given notice of:

· the intention to hold a ballot;
· the date of the ballot;
· basic details of those to be balloted (i.e. the workplace or job title – not the names);
· a sample copy of the ballot paper.

Following the ballot, the employer must be given:

· notice of the outcome of the ballot;
· seven days’ notice of any action, along with details of those involved (but not their names), and when the action will start.

All industrial action ballots must be secret, postal ballots. Only those workers who are involved in the dispute may be balloted. They must be given at least seven days to return the ballot paper, and this must be numbered and must comply with the prescribed wording, which includes a statutory warning to the effect that industrial action is a breach of the employment contract. An independent scrutineer must oversee the ballot.

To proceed to industrial action following a ballot, there must be a simple majority in favour of action. The union must inform the members and the employer of the result, and give notice of the commencement of any action (see above).

The result of an industrial action ballot only lasts for four weeks; that is, any action must start within four weeks to be lawful. However, if the employer and the union agree to this, the result may be suspended to enable negotiations to re-start.


If workers are acting "in contemplation or furtherance of a trade dispute", it is lawful for them to picket "at or near" their own place of work. However, this right is qualified by a number of requirements.
Picketing must only be for the purpose of:

· peacefully getting or communicating information, and/or
· peacefully persuading others not to work.

There is no immunity for pickets who trespass, or who commit criminal offences such as obstruction, or breach of the peace.

There is no legal limit on the number of pickets. However, the Department of Trade and Industry Code of Practice on Picketing, which has advisory status only, suggests a maximum of six.

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