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Network rail questioned the conduct of the RMT ballot.

The grounds were that the procedure was conducted through 5 ballots of different groups of workers, and it was not clear whether 1 key group, the signalmen had actually voted in a majority for the . A. make a critical analysis of the balloting provisions with which RMT must comply. B. What remedies would network rail have had against RMT if the ballot had been found to be invalid, but the industrial action had gone ahead?

Executive Summary

This report will deal with the trade dispute between RMT and Network Rail concerning the proposed revisions to the existing pension schemes. The right to collectively withdraw labour as the ultimate choice available to a trade union in a dispute with an employer has long been recognised in international law. In the United Kingdom, the trade union as a quasi-corporate body will be protected from tort liability in such a situation, providing it is acting "in furtherance of a trade dispute" and is complying with statutory balloting provisions before the commencement of such industrial action. The common law directs, however, that such protection does not extend to the individual employment contracts of trade union members participating in these lawful trade union activities. Employers may terminate these contracts upon complete or even partial withdrawal of labour. Prior to ERA 1999, employees so dismissed, were prevented from submitting an application to an employment tribunal for unfair dismissal unless they could show that other employees in the same position had not also been dismissed. This report will consider the implications of Trade Union law on the dispute between Network Rail and the RMT in relation to pensions. It will consider the legality of the proposed strike (as it did not go ahead) and consider whether or not it was legal. It will be concluded that if it can be shown that 1 key group of workers had not actually voted in a majority for the strike then the ballot will not be protected action and Network rail will have various remedies available to them.

The Legal Issues

Certain forms and types of industrial action make the employees who participate in them immune from any action against them by their employer. Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92) establishes the "immunities". It says that the act done "in contemplation or furtherance of a trade dispute" is not actionable in the courts just because it makes someone breach a contract of employment or that it interferes with a contract of employment.

The first test is to establish whether or not there is a "trade dispute". This is defined in s 244 TULR(C)A 92 as a dispute that relates "wholly or mainly to" one of the following: terms and conditions; recruitment, suspension or dismissal; work allocation; discipline; facilities for union officials; or the machinery of negotiation.

A dispute about future terms and conditions will not be covered. The Court of Appeal in University College Hospital, London v Unison [1999] IRLR 31 held that employees calling for industrial action to get guarantees about the terms and conditions of future workers were not protected by s 244. Therefore it can be seen that the dispute between the employees and Network Rail was a trade dispute and appears to be granted statutory immunity, thus striking employees should not be dismissed.

As discussed above where the industrial action is in furtherance of a "trade dispute", unions and members do not run the risk of civil legal action provided that the action is authorised by the union and a ballot conforming to the requirements has approved it.

The ballot does not have to define every single issue of the dispute but there must be a dispute in existence. The High Court held in London Underground v NUR [1989] IRLR 341 that London Underground rail workers union NUR in including in its strike ballot matters which were not yet the subject of an industrial dispute had lost its protection.

A strike is "official" where the employee is a member of a trade union and the union has authorised or endorsed the action in question; or the employee is not a member of a trade union but there are among those taking part in the industrial action members of a trade union, which has authorised or endorsed the action and the decision was taken by:

-a person empowered by the rules to, authorise or endorse acts of the kind in question;

-the principal executive committee or the president or general secretary; or

- any other committee of the union or any other official of the union (whether employed or not).

It would appear that all of these requirements have been fulfilled as RMT are the union empowered to endorse such actions and therefore the strike is a official strike. The next issue that falls to be considered is whether or not the ballot was conducted correctly and the legal requirements of a ballot are listed below.

Sections 226-235 TULR(C)A 92: a ballot has to comply with all of the following requirements otherwise the immunities will be removed and the employees can be dismissed:

-must fulfil all of the notice requirements to employers that are contained in the statute;

-must be a secret postal ballot (ss 227-230 TULR(C)A 92);

- The legislation states that all members whom it is reasonable for the union to believe at the time of the ballot will be called upon to take part in the industrial action should be entitled to vote and not others. However, if there is an accidental failure to comply with this requirement which is on a scale which is unlikely to affect the ballot result, the failure can be disregarded but this must be an accidental and not done on purpose.

-ballot to be returned within 7/14 days depending on whether returned by first class post or second class post;

- if ballot of more than 50 workers then an independent scrutineer must be appointed

-the form should specify who is authorised to call the action (s 229);

-voters to be asked whether they support the strike or action short of a strike;

-members should be able to indicate by "yes/no" their views on the proposed action (s 226);

-forms should tell employees of their rights not to be unfairly dismissed;

-forms to contain statement warning of potential "breach of contract of employment" regardless of actual breach so that employees are aware of the risk ( s 229);

-only those likely to be called out to be balloted (s 227);

- separate ballots for separate work places, unless dispute concerns only common terms ( s 228);

- where there are separate work places a separate majority must be obtained in each workplace

- as soon as possible after vote, members should be informed of the number of votes cast

- industrial action to be commenced within four weeks of last day of voting (RJB Mining v NUM [1995] IRLR 556). This period can be extended (s 234).

It is important that these rules are complied with. Although in the case of RJB Mining v NUM [1997] IRLR 621 the High Court indicated that a union is not expected to achieve 100% perfection but should have in place the structures which enable it properly to ballot all the relevant workers.

The legislation states that if there is an accidental failure to comply with the requirement relating to those that are entitled to be included in the ballot which is on a scale which is unlikely to affect the ballot result, the failure can be disregarded. It is unlikely however that if a procedural irregularity was found that the signalmen could be considered to be on a scale unlikely to affect the result therefore if it is shown that such an irregularity occurred then Network Rail are likely to have a cause of action against the RMT.

Furthermore if no separate majority was obtained for the signalman was obtained than this will be a procedural irregularity. The only defence to this on behalf of RMT would be if they indicated that they reasonably believe that the members accorded entitlement to vote have the same workplace (TUCLRA s228(2), so even if a court subsequently decides that the union was incorrect in its conclusion the ballot would remain valid provided that the belief of the RMT was reasonable.

It is not clear from the limited information that has been provided whether or not there was procedural irregularity, however as it is assumed that the strike involved more than 50 employees there should have been an independent scrutineer involved in the process, and he should therefore investigate the situation. Depending on his findings, there may or may not be cause for Network Rail to seek a remedy either as against the employee's or the RMT. Therefore next will be considered the remedies available to Network Rail should they wish to pursue this matter further.

Network Rails remedies against RMT if the Ballot is Non -Compliant

The starting point for Network Rail would be the common law contractual relationship between them and RMT. The common law does not recognise a right to strike. The fundamental obligation under the contract of employment is for the employee to provide his labour. To refuse to do so is in short a repudiation of the contract and an employer can then consider applying for an injunction, withhold wages, treat the contract as terminated and dismiss the employee, lock out the employee or rely on the criminal law against the employee (if applicable).

Injunctions are the most popular legal remedy sought by employers. It may be granted where (American Cyanamid Co v Ethicon Ltd [1975] AC 396)

- The first of these requirements is that there is an allegation of unlawful action;

- The second requirement is that there is a serious issue that is to be tried;

- Thirdly, the employer must allege a harm greater than that which the employees would suffer by having to call off the action; and

- where the employer alleges that damages awarded at subsequent full trial would not adequately compensate for the harm suffered and therefore not a suitable remedy.

Injunctions can be taken out against one or more named individuals, although failure to name an individual properly can result in the injunction failing.

If an injunction is served on a striking group, those receiving it will have to decide whether they wish to comply or face the risk of being in contempt of court. They may take some comfort from s 236 TULR(C)A 92 which says that no court can compel an individual employee to do any work or to attend work.

An employee who is dismissed while taking part in unofficial industrial action will have no protection against the dismissal. Section 237 TULR(C)A 92 states that:

"An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action."

An employer can in essence select those employees he considers to be organisers of the strike or general troublemakers in order to get rid of them.

Employers can try to deduct pay as the right to be paid is dependant upon the employee being ready and willing to work. Employees are not therefore entitled to be paid for any period during which they are on strike. Consequently, statutory protection against deduction of wages contained in Part II of the Employment Rights Act 1996 (ERA) does not apply (see s 14(5) ERA 1996).

Employers who anticipate a dispute may lock out their workers. Section 235(4) ERA 1996 defines a lockout to include closures or suspensions by the employer with a view to forcing workers to accept specific terms or conditions. The issue of what constitutes a lock out is important given that if the employer prevents workers from carrying out their contractual obligations and subsequently dismisses them that may lead to potential unfair dismissal claims against the employer or a claim that the employer is in breach of his contractual obligations to his employees.

In deciding whether a lockout has occurred a tribunal will have wide discretion and will look at a number of factors, including the definition in s 235(4) ERA 96, the contractual position and the employer's intentions. If the evidence shows that the employer's intention is to keep the business and the jobs open, and the close down is to force changes on the workforce, then it is likely that the situation will be characterised as a lockout (Webb and Others v Sandaw Products Ltd and Hall Foundries Ltd (EAT/477/79). There are a few instances where the criminal law can be used against workers taking industrial action. This offences are more relevant in relation to picketing and therefore do not need to be considered here.

Conclusion

In conclusion it is suggested first and foremost that Network Rail call upon the independent scruitener whose responsibility it is to oversee the balloting procedure and consider his findings in some detail. If he does not consider that there was any procedural irregularity then Network Rail will have no remedies available to them. If however there has then they can seek certain contractual remedies and in addition an injunction or even criminal sanctions. The only defence that would be available to the RMT would be if they could demonstrate that they reasonably believe that the members accorded entitlement to vote have the same workplace (TUCLRA s228(2), so even if a court subsequently decides that the union was incorrect in its conclusion the ballot would remain valid provided that the belief of the RMT was reasonable.

Bibliography

Legislation

Employment Relations Act 1999

Trade Union and Labour Relations (Consolidation) Act 1992

Cases

American Cyanamid Co v Ethicon Ltd [1975] AC 396

London Underground v NUR [1989] IRLR 341

RJB Mining v NUM [1995] IRLR 556 University College Hospital, London v Unison [1999] IRLR 31

Webb and Others v Sandaw Products Ltd and Hall Foundries Ltd (EAT/477/79)

Books

Ben- Israel R, (1988) International Labour Standards : The Case of Freedom to Strike Kluwer, Deventer

Ben-Israel R, (1994) Strikes and Lock-outs in Industrialised Market Economics, Kluwer Deventer-Boston

Bowers J, (2002) Bowers on Employment Law, Sixth Edition, Oxford University Press

Bowers J, Duggan M & Reade D, (2004) The Law of Industrial Action and Trade Union Recognition

Craven M, (1998) The International Covenant on Economic, Social and Cultural Rights, Clarendon Press, Oxford

Deakin S & Morris G, (2003) Labour Law, Third Edition, Lexis Nexis Butterworths

Ewing K & Sibley T, (2000) International Trade Union Rights for The New Millennium

Ewing K(ed) (2001), Human Rights At Work

Hendy J, (2001) Union Rights and Wrongs: The Reform of Britain's Anti-Union Laws

Honeyball S & Bowers J, (2004) Textbook on Labour Law, Eighth Edition, Oxford University Press

Kahn -Freund O & Hepple B (1972) Laws Against Strikes, Fabian Research Series 302, London

Novitz T, (2004) International and European Protection of the Right To Strike, Oxford University Press, Oxford

Smith I, Thomas G & Mead D, (2003) Industrial Law, Eighth Edition, Lexis Nexis Butterworths


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