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14
June 2010
A recent wave of litigation
exploiting legal technicalities has undermined the democratic
decisions of workers and has ensured the right to take industrial
action remains loosely hanging by a thread.
The recently overturned
injunction, previously granted against Unite in the BA dispute,
was an important victory for workers but should not be regarded
as a cause for celebration. The decision merely reflected
the insignificance of the technicality that BA raised before
the Court.
Furthermore the decision
in the Court of Appeal was by no means unanimously in favour
of the union. However, the overturning of the injunction against
Unite does support the consistent message from trade unions
- that disputes should not be solved by judges in the courts,
but through the process of negotiation.
Trade unionists can be
forgiven for highlighting the moral significance of the decision
in the BA case in a year that has seen an unprecedented number
of legal challenges brought against unions and their members
over these minor technicalities. Lord Justice Judge, one of
three appeal judges in the BA case, highlighted the irony
of an employer blocking industrial action by using a law intended
to protect a workers' right to strike.
The BA injunction granted
on 17 May was the seventh high-profile injunction against
a major transport strike within 6 months and was described
by Unite in the Guardian as "a landmark attack on free trade
unionism and the right to take industrial action".
In another bizarre case
Johnston Press recently won an injunction when the company
argued in the High Court that they did not employ the 550
NUJ members with whom they have an ongoing dispute. Jeremy
Dear, General Secretary of the NUJ said:
"Johnston
Press management's claim that it employs no journalists would
be laughable, did it not have such serious implications for
industrial relations in the UK. Our members…share the frustration
that workers at Network Rail and BA have felt recently, where
overwhelming ballot results in favour of strike action have
been successfully ruled out of order by managements exploiting
the technicalities of the anti-trade union laws."
The increasing exploitation
of technicalities raises the question - 'on what grounds is
it legally possible to take industrial action in Britain?'.
Unite had argued the granting of the BA injunction allowed
employers to seek to prevent walkouts on "even the most trivial
grounds". As we went to press BA have stated their intention
to challenge the appeal court's decision to overturn the injunction.
Brendan Barber, TUC General
Secretary, commented on the BA injunction before it was overturned
and said "the right to take peaceful industrial action goes
far wider than any particular dispute and is a hallmark of
a free society. All fair-minded people should now see...fundamental
freedoms are now being eroded".
Sarah Veale, another senior
officer at the TUC, says that injunctions preventing strike
action did not save companies any inconvenience, because companies
would pay for poor industrial relations in one way or another.
National statistics have
shown a rise in sick day absences that correlate with the
fall of official days lost due to strikes since the 1990s.
This suggests workers are finding other methods of expressing
their grievances. Sarah Veale also said unofficial, "wildcat"
strikes were rising, showing that disgruntled employees could
still vote with their feet if injunctions prevent official
action.
What does the law say?
- The employer only has
to show there is a "serious issue to be tried" when applying
for an injunction: a full hearing does not have to take
place to ensure both sides are able to adequately put forward
their cases.
- Under section 231 of
the Trade Union and Labour Relations (Consolidation) Act
1992 unions must inform members of the ballot result (including
the number or spoiled papers) within a 'reasonably practical'
period of time. What is understood as 'reasonable' is disputed.
- Article 11 of the
European Convention on Human Rights states that "everyone
has the right to freedom of peaceful assembly and to freedom
of association with others, including the right to form
and to join trade unions for the protection of his interests".
Since the Demir case in November 2008, the ECtHR says that
governments have to promote collective bargaining. The right
to strike has also been recognised as an integral part of
Article 11 in more recent decisions.
The rights outlined in the Convention can only be restricted
if it is "necessary within a democratic society, in the
interests of national security or public safety...or for
the protection of the rights and freedoms of others."
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