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(1) The 1992 Act is amended as follows.
(2) Before section 226 (but after the cross-heading immediately preceding that section) insert
"225A Ballots on industrial action
(1) The rules referred to in section 3(2)(a) shall contain provisions requiring a ballot to be held (save in exceptional or emergency situations) of members which the trade union reasonably identifies as those likely to be invited by it to take industrial action and those rules shall be approved by the Certification Officer as reasonable, and such approval shall not be unreasonably withheld.
(2) No person or body other than a member of the union concerned may bring legal action which relies to any degree on an allegation that the balloting obligations of the union have not been met.".
(3) Omit sections 226 to 234A.'.
New clause 17 Industrial action: deduction from wages
When a worker has taken part in official industrial action, the employer may not make a deduction from the worker's wages in respect of that action which exceeds the amount which the worker would have earned if he had not taken part in that action.'.
Amendment No. 10, in page 18, line 38, leave out Clauses 21 to 23.
Amendment No. 11, in page 48, line 47 [Schedule 2], leave out from beginning to end of line 3 on page 49 and insert
- Sections 219 and 220.Sections 222 to 235A.Sections 240 to 246.'.
- Sections 226 to 234A.'.
This group represents an attempt to place in British law the right to strike. New clause 11 looks at the right to strike, new clause 12 is on secondary action and picketing, new clause 13 is on balloting, new clause 17 reiterates new clause 11 on deduction from wages, and new clause 9 relates to issues about injunctions.
The basis of the discussion leads on from the Second Reading debate, to which many Members contributed. As Members are aware, the right to strike does not exist in British law. The only protections that strikers have are as a result of breaches of individual contracts of employment by industrial action, which is based on a legal immunity built up over time. That is in complete contradiction to the international agreements signed by successive Governments the International Labour Organisation conventions, the Council of Europe social charter, and the international covenant on economic, social and cultural rights.
This is an attempt to address in some way the extension of the immunities allowed to people who take industrial action. It does not strike at the heart of the Government's failure to abide by international conventions, which would require the right to strike to be legislated for in this country. In most European countries, lawful strike does not break the contract of employment but merely suspends it, so it is unlawful to sack a worker on lawful strike, and the courts will prevent it. Were that the law here, there would be no need for the complex unfair dismissal rules to protect strikers that we have debated at length over the last 15 to 20 years. New clause 11 attempts to arrive at a clarification of the right to strike.
In the last debate in 1999, there was an attempt to extend immunities with the eight-week rule. The Friction Dynamics dispute demonstrated that that protection was inadequate. This Bill yet again applies further conditions to ameliorate the eight-week rule and enhance the protections, but in my view will also prove inadequate. In the Friction Dynamics case, it was demonstrated that many of the protections outlined in this Bill were already taken into account by the appeal tribunal. What we really need is an amendment to delete
section 238A and provide that, when a worker is engaged in industrial action called by a trade union lawfully, of course pursuant to section 219, such industrial action shall not in any circumstances be held to constitute a breach of the contract of employment, but instead shall suspend the obligations under the contract of both the employee and the employer during the currency of the industrial action.Since the industrial action breaches the contract of employment, the worker is not entitled to be paid for time while taking industrial action. That would obviously equally apply if the contract were suspended during the action. Nowadays, however, employers often deduct wages on an unfair daily basis when the sum deducted is more than the worker would have earned had she or he performed all her or his duties that day. The new clause provides for a worker taking industrial action not to be penalised by losing more than the sum that would have been earned had he or she not taken such action. That, indeed, is the purport of new clauses 11 and 17.
At present, the immunity allowed to a worker taking strike action protects that worker from specific torts in common law. One protection that it does not give is the ability to take action very specifically unrelated to the worker's direct employment. Industrial action is protected against that limited range of torts only if it is in contemplation of furtherance of a dispute that is wholly or mainly related to the terms and conditions of employment, or to other matters specified in the legislation such as job losses, disciplinary issues and trade union recognition or derecognition. If, according to a court, the union's predominant motive falls outside such statutory trade dispute issues, the immunity will be lost.
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New clause 12 would extend the immunities. Sections 219 and 244 of the 1992 Act would be deleted, and it would be provided that
- "A trade union has the right, and it shall be lawful, to call for or to encourage workers to take industrial action as a means of resolving any dispute . . . to any workers' interests at work including . . . economic and social matters which affect the worker or the trade union or on which the trade union has a policy."
Under current UK law, a trade dispute must be between employees and their own employer. If the relevant dispute is between another employer and his employees, it is unlawful for a union to call for sympathetic or so-called secondary action. My proposals support the ILO and the Council of Europe, which have condemned that blanket ban. The new clause would enable secondary action to take place, and workers taking such action would be protected from unfair dismissal.
The Government have written into British law a guaranteed ability to assemble peacefully, under the Human Rights Act 1998. New clause 12 would enable pickets to assemble peacefully to attempt to persuade
people not to cross a picket line. The Bill does not deal with that problem. Section 222 of the 1992 Act should be amended to give workers the right to assemble peacefully under the Human Rights Act, and to picket any place of work.New clause 13 deals with ballots. Even when industrial action falls within the narrow statutory definition of a trade dispute, a trade union will lose immunity if it fails to comply with the highly complex procedures requiring a fully postal strike ballot and so forth, which we have discussed in the context of a series of employment and trade union-related measures over the last six years. Pre-ballot and pre-strike notices in due form must be sent to the employer in a dispute, in accordance with the strict timetable set out. The employer will therefore be able to injunct the union if the procedures are not adhered to.
The Bill goes some way towards overcoming a number of problems of detail relating to balloting procedures, but it should be for workers and their unions to decide how best to ascertain collective views. Workplace ballots might be more suitable in some circumstances, but in emergencies a ballot might have to come after action had taken place. That is demonstrated by industrial action in my constituency at British Airways and elsewhere. My new clauses would place the onus on the certification officer to clarify and verify the procedures set out in the union's rules to ensure that they allowed for democratic participation by members in decisions on industrial action, but would not allow employers themselves to intervene to injunct individual unions or prevent action. It would be up to individual trade unionists to injunct or take up the issue with their unions.
A range of restrictions already exist to impede fair deliberation about industrial action. A further problem in current industrial action law is the use of interlocutory injunctions. That emergency procedure does not require the claimant to prove the alleged facts either beyond all reasonable doubt or on the balance of probabilities. It is sufficient for the employer to assert facts that, as long as they appear credible, will be accepted by the court, notwithstanding that the union has evidence to the contrary. The employer need not even demonstrate that its case is stronger than the union's; it is enough to show a serious issue to be tried. If credible facts are asserted and an arguable case under law is demonstrated, the court will more or less automatically grant an injunction if the balance of convenience favours it. In practice, the court will almost invariably grant the injunction to stop the industrial action, unless the union shows that the employer's legal argument is unsustainable, because the balance of convenience invariably tilts in the employer's favour.
The Council of Europe's economic and social rights committee has condemned that lack of balance between employer and trade union, as has the International Labour Organisation's committee of experts. The Bill does not deal with that matter, but new clause 9 would ensure that
- "No injunction or interdict shall be granted to restrain exercise of the right to strike by a trade union or any workers"
Much has been said about the need for balance between employer and worker. These new clauses and amendments would endorse the legal right to strike,
which the Government have accepted in one international treaty after another, and balance the legal strengths of employer and worker in the discussions and deliberations leading up to industrial action.
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