University of Venice – Ca’ Foscari Pierre de Gioia-Carabellese Lecturer in Business Law...

University of Venice – Ca’ Foscari

Pierre de Gioia-Carabellese

Lecturer in Business Law

Heriot-Watt University

(Professore universitario di business law)

Solicitor & Notary Public - Avvocato

Contents

Concept of Trade Unions Employers’ Associations

Law and Employment Relations

Law affects employment relations in a number of areas: The relationship between the employer and

the employee The relationship between the employer and

a trade union The organisation of a trade union The consequences of industrial action for

the union and any striking employees

Collective Labour Law History

Legal policy has changed Combination Act (18th century)

Unions unlawful because in restraint of trade Trade Union Act 1871

Union’s purposes should not be deemed unlawful

Freedom of association has not been seen as a fundamental right in Britain as in continental Europe

Recent History

Successive governments supported voluntary collective bargaining as a way of minimising disputes

Public services embraced collective bargaining at a much rate than the private sector

Industrial Relations Act 1971 A right to join a union (and a right not to join a union) Trade unions have the right to seek compulsory recognition

for collective bargaining Recognised unions had the right to information from

employers in relation to collective bargaining and the right to be consulted in certain areas

1979/1997

Ms Thatcher’s Conservative government moved quickly to reverse this policy

Repealed the recognition proceduresStrict controls placed on the internal workings of unions

themselvesOutlawed the closed shops

1997-2010

Election of a Labour Government in 1997Emphasis on partnership with the

unionsUK committed to adopt the Social

Chapter which includes the Works Council Directive

Employment Rights Act 1999

Extended the protection of union members against discrimination

Re-introduced a procedure for compulsory recognition

New measures in accordance with European requirements establishing a EU-wide framework of minimum standards of consultation

Protection for striking employees has also been introduced

Current Legislation – Employers’ Associations

Sect. 122 TULRCA 1992 An employers’ association is an organisation which:

Either consists wholly or mainly of employers or individual proprietors, and whose principal purposes include the regulation of relations between employers and workers or trade unions; or

Consists wholly or mainly of constituent or affiliated organisations with those purposes or representatives of such constituents or affiliated organisations, whose principal objects include the regulation of relations between employers and workers or between the constituent or affiliated organisations

Current Legislation – Employers’ Associations

An employers’ association may be incorporated: Either under the Companies Act 2006; or As an incorporated organisation

Current Legislation – Trade Unions

Sect. 1 – TULRCA 1992 An organisation (whether permanent or temporary) which

either: Consists wholly or mainly of workers of one or more descriptions

and whose principal purposes include the regulation of relations between workers and employers or employers’ association; or

Consists wholly or mainly of:• Constituent or affiliated organisations which have those

purposes; or• Representatives of such constituent or affiliated organisations,

and in either case whose principal purposes include the regulation of relations between workers and employers or workers’ and employers’ associations, or include the regulation of relations between the constituent or affiliated organisations.

Current Legislation – Trade Unions

Main characteristics of a trade unions An organisation consisting wholly or mainly of workers on

one or more descriptions and whose principal purposes include the regulation of relations between workers of that description and employers or employers association

Cannot be solely political No minimum size for effectiveness May well other purposes No requirement for registration to exist However, Certification Officer has a list of unions In nay case, the union must be listed if it wants to be

independent

Trade Unions’ Nature

Section 10 – TULRCA 1992 It is not a body corporate; However, capable:

Of making contracts Suing and being sued in its own name; Capable of being prosecuted for any offences

committed in its name

Trade Unions’ Nature

Section 12 – TULRCA 1992 Properties of a trade union must be held by its

trustee Any judgement, order or award shall be enforced

against the property held by the trustees

Trade Unions’ Liability

Section 20 – TULRCA 1992 Liability of a trade union for an action in tort

Particularly if: An act induces another person to break a contract or

interferes or induces another person to interfere with its performance; or

An act consists in threatening that a contract (whether one to which the union is a party or not) will be broken or its performance interfered with, or that the union will induce another person to break a contract or interfere with its performance


Section 20 – TULRCA 1992 Liability of a trade union also in respect of an

agreement or combination by two or more persons to do or to procure the doing of an act which, if it were done without any such agreement or combination, would be actionable in tort on such a ground.


Section 22 – TULRCA 1992 General limit on the damages awarded against trade

unions in actions in tort General rule For any proceeding in tort (delict) the amount that

may be awarded against the union by way of damages is limited


Section 22 – TULRCA 1992 Maximum award of damages

Less than 5,000 members: £ 10,000 5,000 members or more but less than 25,000: £

50,000 25,000 members or more but less than 100,0000:

£ 125,000 100,000 more: £ 250,000


Section 22 – TULRCA 1992 (cntd) This does not apply to:

Proceedings for personal injury as a result of negligence, nuisance or breach of duty

Proceedings for breach of duty in connection with the ownership, occupation, possession, control or use of property

Proceedings brought by virtue of Part I of the Consumer Protection Act 1987

Recognition of a Trade Union

An employer may elect to recognise a union May be forced to recognise an independent

union (if 21 or more workers are employed) in relation to pay, hours and holidays

Procedure introduced in 1999 Recognition means that “the recognition of

the union by an employer or two or more associated employers, to any extent, for the purposes of collective bargaining”

Consequence of the Recognition of a Trade Union

It is evidence of the fact that the organisation is a trade union

Entitlement to tax relief on income tax and corporation tax

Simplified procedure for vesting union property in newly appointed trustees

“Stepping stone” for the trade union to be recognised as “independent trade union”

Concept of Independence

Certification of independence essential for access to certain statutory rights (protection of members against discrimination; time-off; consultation and information)

Independence refers to independence from the employer rather than from the state

It will be crucial to establish that a union could survive without employer backing

The certificate of independence is given by the certification officer

Concept of Independence (cntd)

Sect. 6 TULRCA 1992 Any trade union which is on the list may apply to

the certification officer for a certificate of independence

A union is independent if: It is not under the domination or control of an employer or

groups of employers or an employers’ association; and It is not liable to interference by an employer or any such group

or association arising out of the provision of financial or material support or by any other means whatsoever tending

towards such control

Advantages of Certification

A member is entitled not to suffer a detriment (Sect. 146)(1) or to be dismissed (Sect. 152(1) on grounds of trade union membership or activities, or making use of trade union services (Sect. 152);

An independent union may negotiate a dismissal procedure agreement which will replace individual statutory rights (Sect. 110 ERA);

An independent trade union may negotiate away the right of employees to strike (Sect. 180);

Advantages of Certification (cntd)

An independent trade union may negotiate a collective agreement modifying or derogating from rights contained in the Working Time Regulations, the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002;

An official or member of an independent trade union can act as an independent adviser for the purpose of compromised agreements (Sect. 303(3A) ERA);

An independent trade union will be able to receive money from the Secretary of State under the trade union modernisation scheme.

Concept of Independence (cntd)

• Only a trade union aggrieved by a decision not to grant a certificate is entitled to appeal

• General and Municipal Workers Union v Certification Office [1977] 1 All ER 771 – Trade union objected to a decision of the

Certification Officer to grant a certificate to another organisation

– Held that the trade union was not entitled to appeal that decision

Staff Association

Trade Unions formed exclusively within a firm and made up by workers of that firm only

Issues: these association may be “weak”, because theoretically less independent

Under the threat of the master From a legal point of view, sometimes they may have

problems in getting the certificate of independence

Staff Associations (cntd)

Blue Circle Staff Association v Certification Officer [1977] 2 All ER 145 In 1971 top management of the company formed a staff

association for salaried staff of the same company Later on changes were made to the constitution of the

company EAT held that the certification officer was right in his refusal

to grant a certificate Association not yet free from the domination of the

company which created it


Association of HSD (Hartfield) Employees v Certification officer [1978] ICR 21 Association formed with the active encouragement of the employer Both employees and employer were against the nationalisation of

the sector The nationalisation was eventually achieved The head of the industry, on visiting the premises, was welcomed

by a heavy protest The request of the certificate of independence was refused by the

certification officer The EAT held that this was wrong; With the heavy protest they had demonstrated to be independent.


The fact that an association is based on the premises of the employer in itself is not prejudicial to the certificate of independence

Also the fact that the employer puts at disposal of the union facilities


Squibb UK Staff Association v Certification Officer [1978] ICR 115

Certificate of independence refused because of fears of vulnerability of the staff union

This staff union utilised extensive facilities put at disposal by the employer (rooms for meetings, free use of telephones, conference rooms of the employer)

Certification officer refused to give the approval (assumption that, without this support, the staff union would not have been able to work at all)


Squibb UK Staff Association v Certification Officer (cntd)

EAT reversed this decisionCourt of Appeal confirmed itThe test of liability to interference by the

employer, which would be fatal to the association’s independence, meant vulnerability

There was the likelihood of interference

Privileges of a Recognised Trade Union

Where an employer recognises a union, the employer must disclose to the union on request information, for the purposes of collective bargaining, about matters and in relation to workers for whom the union is recognised.

Privileges of a Recognised Trade Union: Redundancy

Redundancy (Sect. 188 ERA 1996) Where an employer is proposing to dismiss as

redundant 20 or more employees at one establishment, he has got an obligation to consult with appropriate representatives of affected employees


When? When he redundancies are “proposed”

and “in good time” If employees to be made redundant are 100

plus within 90 days, consultation should take place at least 90 days before the first dismissal;

Otherwise (not within 90 days), within 30 days of first dismissal


Who need be consulted? Recognised independent unions Representatives of the trade unions The employer must undertake consultation with a

view to reaching an agreement

Privileges of a Recognised Trade Union: Transfer of Undertaking

Transfer of Undertaking Transferor and transferee employer Obligation to inform and consult appropriate

representatives of affected employees Obligation to consult arises only where the

employer envisages that it will be taking measures in relation to affected employees

Privileges of a Recognised Trade Union: Rights of Union Members

• Individuals are protected against discrimination on account of their membership/non-membership of a trade union

• Refusal of Employment on grounds of union membership (non union activities) or non-membership is unlawful

Privileges of a Recognised Trade Union: Rights of Union Members

An employee also has the right not to be subjected to any detriment as an individual for the purposes of preventing or deterring him from joining a union or refusing to join one or from taking part in union activities

Associated Newspapers Ltd v Wilson Associated Ports v Palmer 1995 IRLR 258

Dismissal is unlawful if the main reason is that the employee was or proposed to become a member of an independent trade union, or

Had taken in or proposed to take part in the activities of an independent trade union at an appropriate time

Privileges of a Recognised Independent: Trade Union Rights

to Time-off Work

Members of recognised, independent trade union are allowed reasonable time off during their working hours to take part in activities of that union

Union officials are allowed reasonable time-off to carry out their functions

Such time-off is unpaid What is reasonable and what constitutes “union

activities” is for the employment tribunal

Control of the Internal Union Affairs

The internal running of trade unions is heavily regulated covering matters such as exclusions and expulsions from membership; disciplining; the conduct of ballots for elections of officials and the collections and accounting for union funds and subscriptions

Disciplinary Action

Power must be specified in the rules of the TU Spring v Amalgamated Stevedores and Dockers’

Society [1956] 2 All ER 221 Spring member of the union against Bidlington

Agreement (prohibition to poach members among TUC affiliated unions)

The Union expelled Spring However held that it was void because rules of

that TU did not contain any power to expulsion

Disciplinary Action (cntd)

Sometimes this power can be implied McVitae v Unison [1996] ILRL 33

Claimant was member of an Officers’ Association (NALGO)

Different complaints for sexism and intimidation made against him

Disciplinary proceedings started against him However, NALGO amalgamated with other two

unions to form Unison


McVitae v Unison Union decided to reinstate disciplinary action

against McVitae McVitae objected that the conducted related to a

time preceding the amalgamation Held that in this case the disciplinary power was

implied


Other authorities Lee v Showmen’s Guild [1952] 2 QB 329

Lee expelled from the guild because he had allegedly violated competition rules

Held that the guild had misinterpreted the rules of the guild

The court entitled to replace the decision with its own interpretation


Other authorities Evans v National Union of Printing, Bookbinding and

Paperworkers [1938] 4 All ER 51 According to the internal rules a member acting

against the interests of the union might be expelled

The claimant was absent from work on different cases

This was contrary to an arrangement between the union and the employers


Other authorities (cntd) Evans v National Union of Printing, Bookbinding and

Paperworkers [1938] 4 All ER 51 (cntd) He was expelled Expulsion was valid

Conduct of Union Affairs (cntd)

Membership of a TU means the conferment and/or enjoyment of certain rights

If these rights are not pursued properly by the TU, there is a breach of contract


• For instance legal advice• Right conferred on a member but activated with

lateness by the TU• Therefore, member entitled to sue for damages• However, reasonableness


Buckley v National Union of General and Municipal Workers [1967] 3 All ER 767

No breach of contract arises if the member fails to show that his action has a reasonable prospect of success

Friend v Institution of Professional Managers and Specialists

The Union can fulfil the duty to use ordinary care and skill by handing over a potential claim to a firm or competent solicitors

Conclusions

Trade Unions and the way they are organised Trade unions Recognised trade unions Certified independent unions

Independence relevant for the purposes of some privileges

Recognition relevant for the purposes of collective bargaining/redundancy

Bibliography

N. Selwyn, Selwyn’s Law of Employment (16th edn Oxford University Press, Oxford 2010) Chapter 22 (the Law Relating to Trade Unions)

S Deakin & G Morris, Labour Law (5th edn Hart Publishing, Oxford Portland 2009) Chapter 7, Chapter 8, Chapter 9, Chapter 10

P de Gioia-Carabellese, University Lectures, Employment Law and Law of HR Management, Heriot-Watt University, Academic year 2011/2012

University of Venice – Ca’ Foscari Pierre de Gioia-Carabellese Lecturer in Business Law...

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