In this article, Judy Hamilton, Solicitor in the Employment Team at McCartan, Turkington Breen Solicitors, discusses the complex issue of unions balloting their members to take industrial action.

Recently there has been a spate of public sector workers calling for strike action due to working conditions including pay.  Nurses, hospital and university staff have all recently voted for strike action in the coming months. This article will look at what steps a union has to take to ensure that industrial action, including strike action, is legal.  It will also explore when unions can call a vote of their members for non-industrial action.

Trade Union v Employer

A trade union that is recognised by an employer for collective bargaining purposes has the highest level of recognition for the purposes of negotiation and it means that decisions relating to certain rights cannot be taken by the employer alone. Where a trade union is recognised the unions and employers will agree on what terms and conditions are covered, eg pay, holiday and working hours.  The trade union and employer will enter into a recognition agreement which will set out the procedures for negotiations between management and unions; the issues to be negotiated and categories of employees covered. The scope of collective bargaining will vary from one workplace to another, but it is in both parties’ interests to have a clear and comprehensive recognition agreement.

Is a Strike legal?

Industrial Action is the last resort for employees whenever a dispute in the workplace cannot be resolved through negotiation.  Industrial action, at common law, is generally unlawful. However, statute has provided immunity provisions if the action is done in contemplation or furtherance of a trade dispute (Article 97 of The Trade Union and Labour Relations (NI) Order 1995 (TULRO 1995)).

To ensure a strike is legal unions need to ensure the correct procedure is followed. This is a complex statutory balloting and notification procedure set out in Part V111 of The Trade Union and Labour Relations (NI) Order 1995.

In summary, the following action must be taken:-

1. The trade union must ballot all members that it intends to call upon to take action and must not ballot any other members. (Article 108 of TULRO 1995).
   
   
2.  A secret postal ballot must be held asking members if they are prepared to take part in a strike or action short of a strike and the majority of members must agree.
   
   
3. Notice should be given to employers at least 7 days in advance that a ballot is taking place. The notice must contain the date of the opening day of the ballot and list the categories and numbers of employees concerned and their workplace.
   
   
4. The results of the ballot should be made known to the employer as soon as reasonably practicable.
   
   
5. A ballot ceases to be effective 4 weeks from the date of the ballot or longer if both the union and employer agree therefore industrial action must be taken within 4 weeks of the ballot.

Consequences if in breach of the legislation

Failure to follow the correct procedure can result in legal action being taken by the employer for an injunction preventing the strike. Identifying shortcomings within the unions ballot can provide a useful bargaining tool for employers when negotiating with unions as they can attempt to stop the action in Court.

In London Underground v National Union of Railwaymen [1989] IRLR 341 the employer obtained an injunction against the union as they had included items on the ballot paper that were not the subject of a trade dispute.

In Thomas Cook Airlines Ltd v British Airline Pilots Association [2017] EWHC 2253 (QB) the employer sought an injunction on the basis that the union had failed to comply with the legislation and had not set out the “period or periods within which the industrial action…is expected to take place”. The union’s voting paper proposed industrial action “on dates to be announced over the period from 8 September 2017 to 18 February 2018”. The court dismissed the application and held that it was only necessary for a trade union to specify the period within which action was expected to take place, taking into account the dynamic nature of industrial action and the desirability for both sides of allowing flexibility.

Royal Mail recently won an injunction preventing a mass postal strike as workers had been seen to be casting their ballots at work rather than in secret at home.  Given the timing of the strike during a General Election the Judge held that “there is a relevant wider public interest that is material to my conclusion that an injunction should be granted”. This decision is being appealed.

Balloting for non-strike action

Sometimes trade unions ballot their members about ending industrial action after it has begun, or about offers made by the employer to end the dispute in question. Those ballots are not a statutory requirement and are for trade unions to decide whether to arrange or not, in-line with their rules. Subject to trade union rules, trade unions can, for example, ballot their members in a class action to ensure the majority of the members agree to terms of settlement.

Furthermore, trade unions sometimes hold 'consultative' or ' indicative' ballots asking members whether they might be prepared to take industrial action about a particular issue. Trade unions are free to hold these ballots in-line with their rules. However, the trade union will need to hold a further legal ballot if they wish to proceed with any industrial action. It was recently reported that a union representing many NI school principals, The National Association of Head Teachers (NAHT) had held an indicative ballot where members voted overwhelmingly to proceed to a vote on industrial action. In September 2019 the union had served notice on employers that it was going to formally ballot its members for possible strike action.

For the first time in its 103-year history the Royal College of Nursing held a consultative ballot asking its members whether they might be prepared to take industrial action up to and including strike action regarding pay and low staffing issues in NI in November 2018. A year later, the Royal College of Nursing have held a legal ballot and its members have voted to strike.

Conclusion

Trade unions and employers must work together to reach agreement. Unions can ballot their members on any issue provided it is within the Recognition Agreement with the employer and their own union rules. Given the logistical challenges facing unions to ballot their members it is likely that unions will only do so when they consider it to be of the upmost importance to their members.