Industrial Action NI

There are statutory immunities in respect of industrial action provided the industrial action complies with certain conditions. In the absence of statutory immunities, employees, trade unions, and trade union officials may be subject to bringing a civil action in calling strikes and for actions taken in the course of a strike to discourse or dissuade the employer from taking a particular course.

Where a trade union or individual calls or threatens industrial actions, a number of tests apply to the availability of statutory immunity.

There must be a trade dispute, and the action done is in contemplation of furtherance of that dispute. A trade union must first hold a properly conducted secret ballot. The required period of notice of official industrial action must be given to employers after the ballot.

The action must not be secondary action unless it calls for such action in the course of peaceful picketing at the picketer’s own place of work.

The action must not be intended to promote a closed shop or prevent employers from using non-union firms as suppliers. The action must not be in support of an employee dismissal on taking on official industrial action. Picketing must be lawful.

If the immunities do not apply, there is a risk that strikers, unions, and their representatives may be subject to civil action for damages. These may be taken by the employer, persons who are picketed, or others who have suffered loss and damage.

The trade union may be responsible for the acts of its members in inducing or threatening to induce a breach of the contract of employment or a third-party contract. The union will be liable for acts done or authorised by its senior executive and other authorised persons.

If the action is repudiated or not accepted by the union’s Executive Committee; General Secretary or President, the union will not generally be liable as it will not have been authorised. In practice, the union may need to give notice that it repudiates the action. There is no question of it being liable as having authorised it, arises.

Where the immunity is not available, the courts may grant a pretrial injunction to a civil action. This may in effect determine the position, if for example, it includes picketing etc., this would   constitute contempt of court. This may be subject to fines, sequestration of the union’s assets or imprisonment for contempt of court.

The immunities only apply to the civil wrongs specified in the legislation. Strikers and organisers may be liable for other civil wrongs if they step outside the boundaries of the immunity. It does not immunise them from criminal offenses.

The immunity only applies to a person acting in contemplation or furtherance of a trade dispute. A trade dispute is a dispute between workers and their own employer. It must be wholly or mainly about employment-related matters such as pay and conditions, discipline, negotiations, trade union machinery.

It does not cover disputes between groups of workers and trade unions, where there is no employer involved. It does not cover disputes between employees and a third-party employer. It does not cover disputes about other matters that are not employment-related.

In order to be immune from proceedings by an employer, party to a contract for employment or services which will be broken or interfered with or by individuals deprived of goods or services by reason of industrial action, the call for industrial action must be covered by adequate notice of official industrial action. The union will have to take reasonable steps to inform the employer which the union believes whose employees have been, or will be, or continue to take part in industrial action receives written notice.

The notice must reach the employer after the union has taken steps to notify the employer of the result of a ballot, but no less than seven days before the date specified in the notice. It must specify whether the union intends to take industrial action which is “continuous” or “discontinuous”; the date on which employees are to be called on to commence the action or the dates on which they will be called in the case of discontinuous action.

The notice must give a list of the categories and workplaces of the employees that the union is going to ballot, numbers in each category, numbers at each workplace, numbers of affected employees; with an explanation how they are calculated.

If the union changes its intentions, for example, in relation to the commencement date, a further notice must be given concerning the variation.

Where continuous industrial actions are suspended, for example, for the purpose of negotiations, the union must generally give further notice to resume the action except where the union agrees with the employer that the action will cease to be authorised from a date specified but may be authorised and endorsed again on another date specified in the agreement that they cease to authorise or endorse the action with effect from the specified date; and subsequently re-authorise or endorse it from the action date or on or after the originally specified date or such later date as may be agreed. The industrial action must be of the same type.

Secondary action is unlawful. It is unlawful to call it, threaten to call for it, or organise it. The statutory immunities are not available.

In this context, secondary action is action by employees of an employer who is not party to the dispute.

Where more than one employer is in dispute with his employees, the dispute between each is treated as separate in this context. Industrial action which is primary action in the sense that it is in contemplation or furtherance of a dispute between employees and their own employer is not regarded as secondary simply because it has an effect on another dispute between other employees and a different employer.

Calls on workers to breach or interfere with the performance of a contract are not calls to take secondary action if made in the course of attendance for the purpose of peaceful picketing as the law allows.

The immunity is not available for industrial action to establish or maintain a closed shop practice. It is not available where an employer employs, has employed, or proposes to employ or might employ a person who is not a member of a union, or a particular union, or of one of a number of particular unions. It does not avail to pressurise an employer discriminating against a person on the grounds of non-membership of a union, or of a particular union, or a number of unions.

There is no immunity in non-union firms where the purpose is to exert pressure on an employer to persuade him to impose union-only labor or recognition requirements on contractors or where it is taken by employees of one employer and interferes with the supply of goods and services by a second employer, or can reasonably be expected to have that effect, where the reason, or one of the reasons, is that the supplier of the goods or services does not recognise, negotiate, consult with trade unions or trade union officials.

There is no immunity for calling for, or threatening to call or organization of industrial action where the reasons, or one of the reasons, is the fact or belief the employer has dismissed any employee in circumstances where the employee has no right to complain of unfair dismissal because of taking unofficial industrial action.

This includes a position in relation to a former employee. An employee is regarded as taking unofficial industrial action if, at the time of dismissal, the calling for, or organizing industrial action was not the act of the union either because it was done by a person or when the union was not responsible or because although the union was responsible, the actions were repudiated by the union.

Picketing involves persuading people not to go to work, or not to deliver or collect goods. It may constitute inducement to breach of contract either for the supply of goods or employment. It may constitute an interference with the employer in fulfilling commercial contracts.

Inducement is only protected by immunities where the picketing is at or near the pickets’ own place of work; and the purpose of the picket is to use peacefully to obtain or communicate information and peacefully to persuade a person to work or not to work.

A trade union official may accompany a member of his union whom he represents, if that member is picketing at his own place of work. A person who does not normally work at one particular place, or for whom it is impracticable to picket at his actual place of work, may picket at the premises of the employer from which he works or from which the work is administered.

A person who is no longer employed may picket at his former place of work in contemplation or furtherance of a trade dispute, provided that the termination of his employment gave rise to or is connected with the dispute to which picketing relates.

That is a statutory Code of Practice on picketing published by the Department. It gives practical guidance on the law. It generally recommends that pickets do not exceed six in number at any entrance to the place of employment.