Trade union Green Papei moves closer to reality
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THE GREEN PAPER provides no answers — it asks questions about industrial relations and the role of the law, and analyses the arguments for and against making legal changes, writes DOUGLAS AINLEY. • It outlines the history and development of the immunities, and shows that the existence. and function of trades unions requires some legal protection.
Currently, individuals who organise industrial action enjoy immunity in Tort from civil conspiracy; inducing others to break employment contracts; and interfering with another person's. trade, business or employment provided such action is done "in contemplation or furtherance of a trade dispute."
Paradoxically, employees who go on strike are liable to dismissal for breaking their employment contracts. But trade unions enjoy total immunity for the unlawful acts of their members or officials, regardless of whether or not such acts are done "in contemplation or furtherance of a trade dispute."
The 1980 Act restricted immunities relating to picketing, coercive union recruitment, and secondary action affecting commercial contracts. The Green Paper looks to possible future action. • Changes within the present framework are first considered.
• The total protection for union funds is without parallel abroad and the case for limiting this immunity is discussed, But were union funds at risk for unlawful industrial action, further issues must be resolved. When should unions become vicariously liable for their members and officials' actions?
Given the present lack of union control over their members — 90 per cent of strikes are unofficial — would unions be encouraged to exert greater discipline over members?
Moreover, would employers want to sue unions for damages, or prefer to seek injunctions to end unlawful action swiftly? The uncertainties here would make it likely that courts would rarely find unions liable for their members' acts.
• Possible changes to the immunities for secondary industrial action are then examined,
though the Green Paper refuses to consider reducing the protection given to employers by the 1980 Act. The simplest solution would be no immunity for any seco.naary action — though perhaps this would tilt the balance too far towards employers. Should there be immunity only for specific types of secondary action, for example, against employers.providing material support to the employer in dispute; or only for inducing breaches of employment and not commercial contracts; or only for interfering with the commercial contracts of the employer in dispute?
• The 1980 Act tightened the law on picketing. Further changes revolve around whether all secondary picketing should be outlawed; whether the police should become responsible for getting pickets' names and addresses; or whether an offence be created for the "act of picketing." Major problems as to police "neutrality" might arise here.
• Since immunity for strike organisers depends on the existence of a "trade dispute," its definition is important, and proposals for restricting the definition are considered.
Changes canvassed include outlawing "political" strikes or limiting immunity to strikes whose predominant purpose is a genuine industrial matter. Clearly, problems of definition would arise and involve judges in deciding the motives of strikers. Alterations to who may be a legitimate "party" to a trade dispute are suggested since, now, trades unions may be "parties" to a trade dispute with an employer although his employees are not involved.
Similarly, pure "workerworker" disputes (for example, demarcation) are within the definition, and the case for limiting "trade disputes" only to disputes between the employer and his workers or their trade union is analysed.
• The Green Paper recognises the advantages achieved in other countries • by having legally enforceable collective agreements. Should we follow suit and remove immunities for industrial action in breach of such agreements?
The Green Paper acknowledges the difficulties — British collective bargaining is informal, and both sides of industry seem to prefer this.
• Secret ballots are favoured by the Green Paper. The question is how to extend their use effectively — by encouragement (the method of the 1980 Act) or by compulsion?
The closed shop is acknowledged as a fact of industrial life, but suggestions cover the making of all Closed Shop agreements void in law; making periodic reviews of Closed Shops a legal obligation; and giving individuals new rights against the "unreasonable" operation of closed shops.
The Government has reserve powers to handle national emer
gencies — if these are caused industrial action, but should have special powers to decIE certain strikes "unlawful" or impose statutory cooling-( periods, followed by strike b lots?
Real problems exist over c fining an "emergency" and ON what sanctions to impose "illegal" strikers.
Similarly, the concept of n tricting the right to strike workers in essential industri begs the question — defi "essential."
The most radical propo: examined by the Green Paper whether the system of legal i munities should be replaced a new system of positive righ This is linked to the wider iss of a Bill of Rights generally, L key questions arise:
• Would there be a right strike, or given the present i munities, a right to organisE strike? Would employees still liable for breaking employrm contracts? Would a right not strike. be implied?
• Would employers and e ployers' associations have ec valent lock-out rights?
• What obligations need be imposed on others to prey: interference with the right strike?
• How would the wider i munities for trades unions E their funds be translated int( new system?
• Limits to and definition the right to strike would necessary relating to picketir secondary action; politic strikes; strikes in breach contract, special groups essential workers; and industr action short of a strike.
• To enforce and adminis such positive rights, will separate system of labour la with its own courts, be nee, sary?
A new system could be dm to industrial reality and mic lessen union suspicion of cour But complex legislation wot, be needed and some unc tainties and scope for judicial terpretation would always exiE The Green Paper's aim is improve industrial relations a your views — before June '1981 — will be welcomed.