Ballot & Protections

Ballot

There is a requirement for a prior ballot to approve an industrial action. The requirements are complex and somewhat technical. At least seven days’ prior notice of the ballot must be given to the employer. The ballot paper must be furnished to it.

The must be an independent scrutineer (with n exception for certain smaller ballots) who fulfils certain functions with a view to ensuring the fairness and integrity of the ballot.

The ballot must be of the union members who are intended to take in the industrial action immediately or ultimately if the dispute escalates. There must be separate ballots for each workplace save in defined circumstances where an aggregate ballot is permitted. This may be permitted where at least one member is affected by the dispute in each workplace or all members are employed by a particular employer with whom they are in dispute

The ballot must seek a “yes” or “no” answer in respect of strike or other industrial action. There must be distinct approval of a strike so that there may be separate ballots approving the strike or other industrial action. The ballot must also contain prescribed wording which refers to the implications of the strike in terms of dismissal and the conditional protection in respect of reinstatement.

Each person entitled to vote must be given the opportunity to do so freely. The vote will usually be postal. The ballot must be counted and published. The scrutineer must confirm whether the ballot was lawful and freely conducted.

Industrial action pursuant to the ballot must be called by the person designated on the ballot paper within four weeks (in most cases) At least seven days’ notice must be given to the employer of the proposed action. The employer must be allowed to identify although not necessarily personally, the workers and the groups to be balloted in the initial notice and in the ultimate notice of strike action.

In some cases, the categories of employee workplaces and an explanation of the calculation of the numbers involved must be furnished. The information must be as accurate as is reasonably practicable in light of the information available to the union at that time.

Ballot NI

In order to enjoy the statutory immunity, a union must hold a properly conducted a secret ballot. The legislation prescribed requirements in relation to a secret ballot. Where there are more than 50 members entitled to vote, that union must appoint a qualified person as a scrutineer of the ballot. Terms of appointment must include the production of a report on the conduct of the ballot. This must be produced as soon as reasonably practicable after the ballot, and in any event within four weeks.

The union must provide a copy of the scrutineer’s report to any union member who is entitled to vote, the employer, or any employer who requests one within six months. It must be supplied as soon as reasonably practicable, free of charge or on payment of a reasonable fee.

The union must take reasonable steps to ensure that an employer whom it is reasonable for the union to believe will be an employer of any of the members who are entitled to vote, receives information prior to the commencement of the ballot including written notice at least seven days in advance, stating that the union intends to hold a ballot; specifying the opening date of the ballot; providing a list of categories of employees to which the affected employees belong; figures, numbers for each category; numbers of employees at each workplace, and total affected employees together with details of how it is computed.

In some cases, it is sufficient to give information that will enable the employer to deduce the total number of employees affected, categories to which they belong; numbers concerned and workplaces at which they are employed.

The affected employees are those whom the union reasonably believes are entitled to vote in the ballot.

The commencement of action must be within four weeks of the date of the ballot. This may be extended to eight weeks by agreement. The trigger date is the inducement of strike action.

It is possible to vote for a strike action or action short of a strike, in which event it is enough that either is commenced within the period above.

All members who, it is reasonable to believe at the time of the ballot, will be called on to take part in the strike/industrial action must be given the opportunity to vote. No other parties may be included. Persons who are denied entitlement to vote may not take part in the action as this may invalidate the ballot.

Where there are separate workplaces involved, a separate ballot is required for each workplace unless the below conditions are satisfied: the union may not organize industrial action at a workplace where the majority have not voted ‘yes’ in response to the required questions. The required conditions for a single ballot for more than one workplace are that each of the workplaces has at least one member of the union affected by the dispute or entitlement to vote in the single ballot is given and limited to all the union’s members who, according to the union’s reasonable belief, are employed in a particular occupation or occupations by one or a number of employers with whom the union is in dispute; or entitlement to vote in the single ballot is given, and limited to all the union’s members who are employed by a particular employer or any of a number of employers with whom the union is in dispute.

A union may hold more than one ballot on the dispute at a single workplace.

The voting paper must state the name of the independent scrutineer; the name and address to which the ballot is to be returned; be marked with consecutive numbers; clearly ask voters if they are prepared to take part in industrial action which consists of a strike, or industrial action short of a strike including overtime bans; specify the persons or class of persons whom the union believes intends to have authority to make the first call for industrial action in the event of a ‘yes’.

The voting must be conducted without interference or constraint from the union or its members, officials, or employees or others. So far as reasonably practicable every member entitled to vote must be able to vote in secret; must be sent a voting paper to his home address or other specified address and be given the opportunity to vote by post at no direct cost to himself.

The vote must be capable of a “Yes” “No” response. Separate questions must be put in respect of each type of question where there is no decision as to the type of action.

A statement must be set out in the voting paper, setting out that participation in lawful industrial action may be a breach of contract. The circumstances in which the dismissal is deemed unfair must be set out without comment.

The voting paper must specify persons who are to have authority to call for the industrial action, the subject of the ballot. There must be a majority support for the proposal.

The union must announce the vote decision as reasonably practicable after the holding of the ballot.

It must take steps to inform those entitled to vote and their employers, of the votes cast; members for and against the proposal and spoiled votes. They must be notified to each workplace involved.

Protection from Dismissal

There is protection in respect of termination of employment/dismissal in consequence of official industrial action. An employee who has taken part in official industrial action which has been lawfully authorised by the union is deemed unfairly dismissed

• if the dismissal takes place within the period of 12 weeks (the protected period)
• if the employee ceased to take part in the industrial action during the 12-week period and is later dismissed for taking part in the action during that 12-week period; or
• if the dismissal takes place after the protected period and the employee continues to participate in the action and the employer has not taken such procedural steps as would have been reasonable the purpose of resolving the dispute

In other cases, there is no claim to unfair dismissal unless the employer has dismissed and re-engaged persons selectively, with respect to those who took part in the dispute.

Protection NI

The general principle is that, subject to exceptions, a person may be dismissed while taking part in industrial action, and it without constituting an unfair dismissal. Where an employee who takes part in protected industrial action will be unfairly dismissed if dismissed for this reason unless the action lasts for more than eight weeks and the employer has taken such procedural steps as are reasonable to resolve the dispute.

Eight weeks is now 12 weeks. Days when the employer prevents the striking employees from returning to work are disregarded in calculating the period.

Protected industrial action is action when an employee is induced to take the relevant actions complying with the legal requirements regarding industrial action set out above. The action is no longer protected if it is repudiated by the Union, ceases to be protected the following working day.

The Tribunal in considering a claim for an unfair trade dismissal decides whether the employer has taken such procedural steps as are reasonable to resolve the dispute.

It will not consider the merits of the dispute but will have regard to whether the employer and union have complied with procedures in their collective or other agreement. It will consider whether after industrial action commenced, they had offered or agreed to start negotiations or reasonably refuse a request to make use of configuration services or reasonably refuse the request to make use of mediation services in relation to procedures to be used in the dispute.

There may be a claim of unfair dismissal on the merits if an employer discriminates between persons taking part in any industrial action other There may be a claim of unfair dismissal on the merits, if an employer discriminates between persons taking part in any industrial action other than an unofficial industrial action by dismissing some of those taking part in the action but not others or offering re-engagement to employee dismissed while taking part in industrial action within three months of dismissal, but not to all those dismissed.