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To strike or not to strike?

8th February 2001
Page 32
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Page 32, 8th February 2001 — To strike or not to strike?
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Which of the following most accurately describes the problem?

Any striking employee is almost certainly in breach of his contract of employment. The trade union which organises a strike ballot might be said to be encouraging employees to break their contracts of employment. Can you suggest to someone that they break a contract and get away with it? Usually not...

For example: You have a contract with Big Producers Ltd to haul their goods at a fixed price for two years. You are very happy with the deal—it gives you secure work and a healthy profit. Along comes Badaz Trucking which says to Big Producers: "Never mind that other lot—give us all your work now and we will do it 25% cheaper." Big Producer takes the bait.

"Surely, they can't get away with that!" you cry to your lawyer, throwing fistfuls of money on to his desk. "Indeed, they cannot," he retorts, throwing your money back to you "They have induced a breach of contract! They have conspired! They have interfered with your contract relationships..." and so on, and on.

Big Producer is liable for breach of contract, and Baclaz Trucking is liable for these economic wrongs (called economic "torts" in legal jargon) which they have inflicted on you.

So why aren't trade unions liable for economic torts?

Back in the i9th century they were. The courts applied standard (and maybe not so standard) economic laws. This hindered the progress of trade unions; although in the long run the creation of martyrs might have advanced their cause.

At the beginning of the 20th century, trade unions finally won immunity. The broad theme of the past ioo years has been that a trade union is immune from liability for economic torts where it is acting in furtherance or contemplation of a trade dispute. That is now an entrenched principle.

Even the union-busting Thatcher government accepted that principle, although it did move the goalposts. So now the trade union can lose its immunity if, for example:

• It does not hold a proper ballot; • It takes unlawful secondary action; • It pickets unlawfully. For example:

Suppose the United Haulage Workers Union is in dispute with the Global Energy oil company. They peacefully and reasonably picket Global Energy fuel depots hoping to persuade employees not to work; hoping to persuade other hauliers not to distribute Global Energy's fuel; and hoping to persuade suppliers not to cross their picket line.

They are committing economic torts— but as long as they comply with the rules on balloting, picketing and so on, they are immune from action. People suffer financial losses, contracts are interfered with, but the union is immune—unless the strike is deemed to be politically motivated.

If for example, the United Haulage Workers Union picket of Global Energy's depot was part of a protest against government tax policy, the union would lose its immunity.

A union can only strike with immunity in pursuit of a trade dispute with an employer; it can also picket that employer's premises as a place of work.

Hauliers do not enjoy this immunity— and even if hauliers were trade unions, they could not be immune if they picketed Global Energy to protest about government fiscal policy. This would leave them open to civil action from Global Energy to recoup its losses.

During the fuel protests, accusations were made that some picketing hauliers had intimidated tanker drivers. This was hotly denied.

To the layman, "intimidation" implies threats of violence. It does not have this meaning to a lawyer. Legally, a "threat" is something which puts pressure on the person addressed to take a particular course, something by means of which that person is "improperly coerced". It must be more than "idle abuse". It must be something to be taken seriously.

It could be some form of "harassment"—perhaps taking a photograph of a tanker driver, with nothing said. The act itself might be ambiguous but sufficient to convey "imprOper coercion".

When it comes to accusations of unlawful interference with a company's economic interests there is no need to prove that existing contracts have been broken or interfered with. If some unlawful means is used to deter someone from entering into a contract, that might be sufficient for the person suffering the loss to claim damages.

So, assuming you have taken some form of direct action against a company and cannot claim immunity, you face civil action. This might take a number of forms.

First, an injured party might get an injunction to stop the action. Injunctions are more likely to be granted where damages are unlikely to be an adequate remedy (maybe the defendant does not have enough money, or would be difficult to trace for trial). If an injunction is granted against you, break it at your peril because you will be in contempt and could

easily find yourself behind bars.

Second the injured party could sue for damages. This is not an "either/or" situation: the inured party can sue after an injunction has been granted. Suppose there were too hauliers in the picket outside the Global Energy depot, and the depot suffers a loss of Aim. Now let's assume that only two hauliers can be identified with enough money to be worth suing. They will not be sued for t% of the rim—they could each be ordered to pay f500,000 because in tort the injured party can choose which one of several defendants it sues. This is called "joint and several" liability So much for pickets. Next we'll look at what happens if you take to the streets.


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