In this months Employment @11 webianr we were delighted to welcome Mark McAllister of the Labour Relations Agency to discuss strikes, rising costs, and union-busting.

Mark: Yeah, you would be forgiven to think you were transported back into the 1970s. There is an incredible amount of industrial action going on throughout the UK at the minute, and especially in Northern Ireland. In my 23 years or so working with the Labour Relations Agency, I've never seen it as busy. It really does harken back the days of the '70s and '80s.

And there've been lots of legal developments since that in regard to the law and trade unions. And we're in position now where the law in Northern Ireland does differ significantly from that in GB and is potentially going to differ even further with regard to those developments that we're going to talk about in a second.

Christine: So what is the current law on strikes in Northern Ireland? Can you give us a wee synopsis?

Mark: Sure. In Northern Ireland, the collective labour laws it's referred to and the law that covers trade unions and strikes is found in around six pieces of legislation. From a practitioner's perspective, the most important piece of legislation that you need to be aware of will be the Industrial Relations (Northern Ireland) Order 1992, the Trade Union and Labour Relations Order 1995, the Employment Rights Order 1996, the Employment Relations (Northern Ireland) Order 1999, the Employment (Northern Ireland) Order 2003 and the Employment Relations (Northern Ireland) Order 2004. So it's a bit of a patchwork quilt, Christine, of that.

From a practitioner's point of view, here's an easy cheat. Go to the Labour Relations Agency's website and pump in "Industrial Relations Order 1992". And then you go to the actual legislative link and go to the explanatory notes, which is the cheat. And you will find, for example, the definition in the legislation of a trade dispute.

The important thing to remember about the law on industrial action is it's referred to sometimes as the golden formula or the golden triangle. The three component parts: There has to be a trade dispute as legally defined in the 1992 order, there has to be a properly conducted ballot, and there has to be proper notice.

So practitioners should have a sound working knowledge of the basis of the legislation, which is really about the '92 order and the 1995 order, the Trade Union and Labour Relations Order.

Then get a copy of the Department for Employment and Learning as was, DEL, which is now the Department of the Economy. They have their statutory code of practice on notice and ballots, and really that's your guiding framework for it.

So you must have the three component parts in place because there is no right to strike. The legislation is designed to provide immunities through the trade union and a right to be protected from unlawful, unfair dismissal in the context of striking, but there is no right to strike as such. So that's where you'll find in Northern Ireland the core legal basis for industrial action.

It is a complicated area, but it's what we call hurdle-based. So you have to jump the hurdles in order to ensure that you've got the indemnity and you've got the procedural correctness with regard to the notice and the ballot.

It's different in GB. In GB, in 2014, a piece of legislation was passed called The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act. Rolls off the tongue very, very gently.

And it was really about union housekeeping, about their membership lists, and giving lists then to the certification officer and having registered audits. It actually did the trade unions a bit of a favour because it got their housekeeping in order with regard to ballots in GB.

And then two years later, The Trade Union Act of 2016 came into effect. And that effectively was a game changer with regard to thresholds for turnout. So, under that act, there's an increased ballot threshold. You need a 50% turnout requirement.

Christine: And that's not the case here?

Mark: That's not the case here. The Trade Union Act 2016, there are only small technical parts that related to Northern Ireland, but the core component parts in terms of the increased ballot threshold, which is the main part of the act, doesn't apply in Northern Ireland.

And that is a big, big difference because it theoretically is easier for a trade union to take industrial election in Northern Ireland compared to GB.

Christine: So they just have to get a majority of who's there on the day voting?

Mark: Yes.

Christine: To push through? Wow.

Mark: That's it. The other complication in GB is that if it's an important public service, there is a second hurdle attached to it. So not only is it 50% of the members have to have voted, but at least 40% of those entitled to vote must have voted in favour of the action as well. And this is interesting given the context that we're currently in. That covers health, education, fire, transport, border security, and, rather bizarrely, the decommissioning of nuclear installations.

Christine: I would like to see them getting in an agency worker to cover for that. Do you know what I mean?

Mark: Absolutely. Yes, indeed.

Christine: So Grant Shapps is proposing, and it's taken another step this week towards happening in GB, that they'll lift the ban on agency workers being allowed to fill in for strikers.

When I first read it, I thought this is fairly draconian and quite dramatic. But then when you think about some of the people that are out on strike, you can't really get in an untrained agency worker to drive a train. You can't get them in to do air traffic control. So is the proposal as far-reaching as it appears?

Mark: It is, because fundamentally it applies not simply to the six areas. It's across the board of change.

This is a proposal that even the Thatcher Administration wasn't prepared to go down, primarily because it completely neuters the effect of industrial action, and that would've caused even more industrial turmoil. If Thatcher had have proposed that on the cusp of the miners strike, every other trade union in the UK would've been out on industrial action saying, "This is completely unacceptable".

So in the last couple of weeks, in the last week, you've already had the head of the Recruitment & Employment Confederation saying this is not going to work, because effectively you will have employment agencies and employment businesses . . . They're liable under the legislation. That's the important part. They are liable and it's a criminal offence if they provide this agency cover for workers who are out on industrial action.

And there are some arguments that employers may be liable for aiding and abetting in this context. They have already said, "We want no part of this. We don't want to have a reputation of essentially providing strike breakers". So, at a moral level, there's an issue.

And right over to the other side, there are now question marks hanging over whether or not it's an infringement of the ILO, the International Labour Organization's Convention 87. There's a question mark whether it fundamentally undermines aspects of the trading agreement under the Brexit proposals that's known as the TCA, the Trade and Cooperation Agreement, because effectively you're providing an uneven playing field.

If you have the UK as a country that effectively says, "Well, look, we have completely neutered our law on industrial action because we can provide agency cover to do this", that provides an unfair advantage.

And this is real anorak stuff, Christine. Theoretically, that could be a breach of Article 387 of the Trade and Cooperation Agreement, the ILO agreement, etc. So it is not straightforward by any means.

And in Northern Ireland because we have devolved employment law, it's Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations of Northern Ireland 2005, but that's not being proposed to be changed because it's GB.

So we've had the ban on agency workers covering for striking workers in Northern Ireland from around 1981. It existed a wee bit earlier in GB. But there's no proposal anyway that we've heard of to extend it to Northern Ireland. So if it does come into effect, which I'm doubtful about to be honest, I don't see it being extended to Northern Ireland.

Christine: I was reading an article this morning that said that David Cameron's government actually made noises about it back in 2015.

Mark: They did

Christine: And the likes of Amnesty International and stuff weighed in and said, "This is a fundamental breach of people's rights".

Mark: Absolutely. You're into the realms of Article 11 of the Human Rights Act legislation. And you can see the battle that's going on with regard to the Bill of Rights across the water at the minute. So there is definitely an underpinning argument around human rights and Article 11.

But even more interestingly, the proposals with regard to agency workers actually came around in 2014 when a shaggy-haired blonde London mayor had a real ding-dong battle with the former, who's now deceased, head of the RMT, Mick Lynch's predecessor, who was Bob Crow. Sixteen proposals from the Lord Mayor of London back in 2014, and around eight of them made it into The Trade Union Act 2016 that you currently see now.

 So the history of what you're seeing unfolding now in the last two weeks began with Boris Johnson and Bob Crow of the RMT back in 2014.

Christine: They're playing the long game.

Mark: It's been a long time coming, and it's a very, very significant area of law. The cynic in me says I don't see it happening without a massive resistance from the trade union movement. And the trade unions do not need any more reasons to get annoyed about things.

One of the interesting things that I saw in the media this morning with regard to the ballot thresholds, for example, was The Communication Workers Union for the EE mobile phone network fell eight votes short of the 50% ballot threshold. So they can't go out on industrial action in EE for the CWU union. However, 9,000 call centre workers for BT and 30,000 Openreach workers have through the CWU reached their threshold and they're now going to engage in industrial action. So it's across the piece.

Christine: Yeah. And I was chatting to Seamus about. Basically, the time is ripe for unions to be recruiting. There's Coca-Cola bottling over in Wolverhampton. They had a bit of a trade dispute going on, and Unite the Union have got involved in that and they're saying, "Do you want us to represent you? Do you want our union in your workplace?" So I think that's going to start becoming more and more prevalent, isn't it? And even smaller businesses might feel that

Mark: I think so. Mick Lynch has turned into a social media superstar, and he has dispatched politicians and journalists alike with consummate ease. People are looking around saying, "This guy is not a raving lunatic Trotskyite. He's actually he's making sense. And yeah, let's join a union".

Christine: He's an influencer now.

Mark: He is.

Christine: So, Mark, here in Northern Ireland the NASUWT began action short of strike in May. What does that actually mean? And what are the legal implications of being short of the strike?

Mark: Yeah, this is a very common form of industrial action. It's more common than strikes. Action short of strike could be anything from a go-slow to a work-to-rule. And they're very particular to the industry that the industrial action is happening in.

So in the context of teaching, for example, there are around 16 aspects of the action short of strike, which don't relate directly to teaching but can do with attending parent-teacher meetings or engaging with the education training inspector, etc.

And the NASUWT have made it very, very clear what aspects they're doing. They're performing their primary contractual duty, which is obviously the teaching of children, but their action short of strike involves around 16 areas.

And that provides a complication for an employer because it was announced, I saw on the media, that the employer was not going to accept this partial performance. And partial performance, as it says on the tin, is where you're doing a fair amount of your contract but not all of it.

Now, there is no legal obligation on an employer to accept partial performance, but if they make it clear to the trade union that they don't accept partial performance, then something has to happen.

If the employer continues to facilitate the working-to-rule or whatever it happens to be, then de facto they are accepting partial performance. So the difficulty from the employer's perspective is then what's the next move. And the next move could either be a lockout where the employer says, "Unless you're prepared to do all of your contract, we're not accepting this", and a lockout, which is really draconian, or there could be a reduction in wages to reflect the amount of noncompliance with their contract.

And herein lies the difficulty. The quantification of partial performance in terms of making a deduction, a fractional deduction, from the wage is incredibly difficult in a service type industry or in teaching.

So, for example, how do you quantify in any shape or form where someone isn't doing paperwork or someone isn't engaging in a meeting? Can you get to a situation where you can say, "We're now deducting 1/260th of your pay"? That's a fraction in case law. That fraction exists.

Christine: My goodness.

Mark: Yeah, 1/260th because you didn't attend this meeting, etc. So the practicalities of quantifying the non-performance parts of the contract are incredibly difficult. But more important than that, it makes a bad industrial relation scenario worse.

The difficulty we have now is . . . There was an announcement with regard to, "This may result". And whether that's followed through or not is really what will dictate the next course of play, because if the employer, as I say, effectively facilitates the on-going of the partial performance, then they have de facto accepted it. If they engage in trying to quantify the loss to the employer and the employer makes deductions from wages, that simply inflames. And so the question then is, "Does it go from action short of strike to full-out strike action?"

Christine: Is there a similar thing . . . So if an employee's contract has changed, I can say I'm working under protest. Can an employer flip that and say, "Well, I'm allowing you to work under protest"? Would that save them from that, or is that not possible?

Mark: I think the difficulty with working under protest is that what's written in paper and what happens in practice over a period of time can be two different things. Working under protest sounds really, really good, but the reality is there's a fair body of case law out there to say that you've exceeded to the changes or whatever it happens to be by virtue of by working that long.

 So working under protest sounds really good. It's not all it's cracked up to be, Christine.

Christine: Fair enough. So it sounds like actions short of strike is almost worse than someone just not turning up and picketing. It sounds much more complicated from the employee's perspective.

Mark: Yeah. I think it's very individual to different organisations, and trade unions obviously know what works well in terms of putting industrial pressure on the employer to get their demands met. So sometimes action short of strike is much more harmful than all-out walkout, because an all-out walkout for one day is probably more symbolic than it is effective  . . . Unless you're in the context of the rail industry, like the RMT, where you see that that has.

So, again, trade unions are clever enough to use their leverage and their muscle for where it'll have greatest . . . Because remember, industrial action is primarily about getting one side to concede a point around pay or on terms and conditions. And they're very, very individual. Obviously, when you see the RMT, when you drill down into the detail, it's not simply about pay, but it's about guarantees about compulsory redundancies and modernisation and then varied comments of the rail system.

So whilst it would be easy to say all of the disputes that we're currently seeing are about pay . . . Yes, they are, but scratch beneath the surface, there's more to them.

Christine: Yeah. That's brilliant, Mark. So, to sum up, do you think we're in for a winter of discontent? Do you think this is going to keep escalating? What do you reckon?

Mark: Christine, you're in a summer of discontent. The only thing that's going to change is the seasons.

Christine: So, by Christmas, we're all up the creek then? Is that what you're saying?

Mark: Well, the difficulty is your inflation rate is at 9.1%. It's going to go to double figures, probably about 11%, and you have a winter coming in and oil bills and fuel bills are going through the roof. It just is the perfect economic storm. And the summer of discontent that we're in . . . As I said, it's busier now than I've ever seen it now, July 2022. It's only going to get worse.