Niall McSorley of Tughans solicitors looks at strikes and other industrial action in some detail.

Introduction
The current economic climate, in which redundancies, pay cuts, and withdrawal of benefits are common, has created an appetite for industrial action. In Northern Ireland, this was evident in the sit in and picketing by workers of Visteon in April 2009 following the closure of plants. Strike action by cabin crew of British Airways as a result of proposed cost cutting exercises has just ended. However, the dispute is ongoing. Certainly, trade unions such as Unite have shown a greater willingness to resort to industrial action in negotiations, in order to broker a deal.

What is industrial action?
Industrial action involves the refusal of a group of employees to do anything whether in breach of their contract or not, to use as a bargaining tool (Faust & Others v Power Packing Casemakers Limited [1983] IRLR 117). Such action includes;

* Strike action;
* Action short of strike action e.g. ban on overtime/call-outs, work to rule measures.

In relation to strike action, there is no right to strike as such. In fact, strike action, and other industrial action could be regarded as a breach of the implied duty in an employee’s contract of employment not to operate with the intention and reason of frustrating an employer’s business (Secretary of State v Aslef [1972] ICR 19).

In the event that a strike is ‘illegal’ or not properly convened, it is possible to discipline employees and/or sue trade unions for the industrial tort of inducing or procuring that employee’s breach their contracts of employment by encouraging or organising ‘illegal’ strike action.

No Industrial Action Clauses
Employers could limit or restrict industrial action by insisting on a “no industrial action” clause in any collective agreement. However, for such a clause to be enforceable as between:

* The employer and the trade union it must be in writing, in a collective agreement between the trade union and the employer, and it must specifically state that this clause is enforceable (Article 26, Industrial Relations (Northern Ireland) Order 1992).
* The employer and employees, the following conditions must be met;
* The trade union must be independent;
* The collective agreement must contain a “no industrial action” clause in writing;
* The agreement must be accessible in the workplace;
* The agreement must state that its terms are to be incorporated into employees’ contracts of employment, and must be expressly incorporated by the contracts of employment.

If such a clause exists, and the conditions above are met, an employer can take injunctive proceedings to prevent industrial action, can discipline employees who participate in such action, and can sue the relevant trade union for inducing/procuring a breach of contract, or similar industrial tort, where a union is seen to have authorised such action.

Trade Union Liability
In assessing a trade union’s liability Courts will look at:
* Whether the action taken by the Union in inducing/procuring a breach of contract was proportionate, that is was it taken for an overriding reason of public interest (i.e. protection of workers’ rights) and, were the measures deployed suitable and no more than necessary (International Transport Workers’ Federation and another v Viking Line ABP and another C438/05(ECJ)).
* Whether the Union has Union immunity, in that the action was taken;
* In contemplation of a trade dispute;
* Was not taken for a prohibited purpose such as to protest at the dismissal of workers who participated in unofficial industrial action;
* Was not unlawful picketing; and
* Was taken with the support of a properly-organised ballot of union members.

Industrial Action/Strike Ballots
In relation to organising a ballot, in advance of proposed industrial action, employers should examine the balloting process to ensure it is in line with industrial requirements, such as;
* Notification – The employer must be notified in writing of the ballot at least 7 days before, and ballot papers must be provided to the employer at least 3 days before.
* The ballot must be a secret postal ballot.
* The ballot papers must set out the method of voting, and where there are in excess of 50 union members entitled to vote, the address to which papers must be returned, the date by which the papers must be returned and a unique reference number must appear on the papers.
* The proposed action i.e. strike action must be phrased in a particular way on the forms, and certain other information must be included.

Action by Employers
In the event that strike action/other industrial action is not properly organised, the employer can take injunctive proceedings against employees and unions, and possible action for damages. However, employers should be cautious that action taken does not further damage industrial unions, as seen in April 2009, where the NCP dismissed 28 traffic wardens who participated in unauthorised strike action protesting at sick pay arrangements and rota changes. This resulted in ad hoc industrial action by other employees. Eventually in August 2009 the dismissed traffic wardens were offered re-instatement or substantial redundancy packages.

The important thing to remember is that the points above and the requirements apply equally to other industrial action, for example, ‘work to rule’ policies wherein employees perform duties exactly in accordance with contracts of employment, with the aim of hampering their employers, and/or bans on overtime/call outs. All such industrial action must be properly convened and permissible, so as not to be actionable against the union who authorised the industrial action, and the employees who participate in it.

In addition, employers must balance the importance of maintaining good employee relations with the commercial need to maintain a viable business. Unfortunately, this is not an easy balance to strike. Accordingly, we recommend that legal advice is sought if any of the issues outlined in this paper affect or may affect your business.