Collective Labour Law

by Morris, Gillian S.; Archer, Timothy J.

• ISBN13: 9781841131771
• ISBN10: 1841131776
• Format: Paperback
• Copyright: 2000-09-14
• Publisher: Hart Publishing

Summary

This book, which appeals to specialist labor law practitioners as well as those with no prior knowledge of the subject, comprehensively covers the current transformation of collective labor law, statutory and common law, and the use of colledctive 'workforce agreements' to determine the scope of workers' rights. It also discusses the Employment Relations Act 1999, including a procedure for compulsory recognition of trade unions; additional protection for employees dismissed while taking part in industrial action; changes to industrial action notices and ballots; and a new right for all workers to be accompanied in disciplinary grievance proceedings. Relevant international provisions are also highlighted, together with the jurisprudence ot the European Court of Human Rigfhts and other international bodies.

Author Biography

Gillian S. Morris is Professor of Law at Brunel University.

Table of Contents

Table of Cases	xv
Table of Legislation	xliii
Table of Statutes	lxxiii
Table of Codes of Practice	lxxxi
Table of EU Secondary Legislation	lxxxiii
Table of Treaties	lxxxv
Abbreviations	lxxxix
Collective Labour Law and Human Rights	1	(42)
Introduction	1	(4)
The European Convention on Human Rights and Fundamental Freedoms	5	(21)
Overview and procedure	5	(5)
The ECHR and collective labour law	10	(7)
The application of the ECHR in the sphere of employment	17	(6)
Rights guaranteed by the ECHR and contract	23	(3)
Collective Labour Law and the Human Rights Act 1998	26	(10)
General principles	26	(1)
Interpretation of legislation	27	(3)
Direct or collateral challenge against public authorities	30	(4)
Implications for actions between private parties	34	(2)
Other International Standards Relevant to Collective Labour Law	36	(7)
International Labour Organisation Conventions	36	(3)
The European Social Charter	39	(2)
The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights	41	(2)
The Legal Regulation of Trade Unions	43	(84)
Introduction	43	(4)
The Role of the Certification Officer	47	(3)
The Definition and Legal Classification of Trade Unions	50	(15)
Sources and general principles	50	(1)
The definition of a trade union	51	(2)
Listed trade unions	53	(1)
Independent trade unions	54	(4)
The legal status of trade unions	58	(1)
Returns and accounts	59	(6)
Common Law Regulation	65	(17)
Sources and general principles	65	(2)
The judicial approach towards the contract of membership	67	(6)
Trade union membership and discipline	73	(3)
The right to control trade union government	76	(1)
Remedies for a breach or threatened breach of the contract of membership	77	(4)
Trade union liability in negligence	81	(1)
Statutory Rights of Trade Union Members	82	(16)
Sources and general principles	82	(2)
Rights relating to trade union membership and discipline	84	(1)
The right not to be excluded or expelled from a trade union	84	(4)
The right not to be unjustifiabley disciplined	88	(5)
The right to resign	93	(1)
Rights not to be discriminated against in relation to trade union membership and the benefits of membership	94	(1)
Miscellaneous rights	95	(1)
Rights relating to the trade union's register of names and addresses	95	(2)
The right to inspect the trade union's accounting records	97	(1)
Trade Union Elections: The Statutory Requirements	98	(18)
Sources and general principles	98	(1)
The application and consequences of the duty to conduct election	99	(4)
The selection of candidates and election addresses	103	(3)
Independent scrutiny of elections	106	(3)
The balloting constituency for elections	109	(1)
The conduct of the election	110	(4)
Remedies for breach of statutory requirements	114	(2)
Political Activities	116	(11)
Sources and general principles	116	(1)
Establishing and retaining a political fund	117	(2)
The definition of `political objects'	119	(2)
Assets and liabilities of the political fund	121	(1)
The right of exemption from contribution	122	(1)
Remedies for breach of the political fund provisions	123	(1)
Expiry of a political fund	124	(3)
Trade Unions and Employers	127	(56)
Introduction	127	(3)
The Right to Organise	130	(30)
Sources and general principles	130	(2)
Protection against dismissal on grounds of trade union membership and activities	132	(1)
Entitlement and procedure	132	(3)
The scope of protection	135	(10)
Remedies	145	(1)
Protection against subjection to a detriment short of dismissal on grounds of trade union membership and activities	146	(1)
Entitlement and the scope of protection	146	(6)
Remedies	152	(2)
Refusal of access to employment	154	(1)
The scope of protection	154	(2)
Entitlement, procedure and remedies	156	(2)
Constraints on the compilation or disclosure of information relating to trade union membership	158	(2)
The Right not to Join a Trade Union: the Closed Shop	160	(4)
Sources and general principles	160	(1)
Protection against dismissal on grounds of non-membership	161	(1)
Protection against subjection to a detriment short of dismissal to compel trade union membership	162	(1)
Refusal of access to employment	163	(1)
Contract Compliance	164	(4)
Sources and general principles	164	(1)
The Trade Union and Labour Relations (Consolidation) Act 1992	165	(1)
The Local Government Act 1988	166	(2)
Rights of Individual Trade Union Members	168	(15)
Deduction of union subscriptions at source (the `check-off')	168	(2)
Rights of trade unionists to time off work	170	(1)
Sources and general principles	170	(1)
Trade union officials: rights to paid time off	171	(6)
Remedies if paid time off is refused	177	(1)
Time off for trade union activities	178	(5)
Trade Union Recognition and Collective Bargaining	183	(116)
Introduction	183	(4)
Recognition of Trade Unions	187	(65)
Sources and general principles	187	(2)
The definition of recognition	189	(2)
The statutory recognition procedure: overview and general principles	191	(3)
The role and operation of the CAC	194	(4)
The statutory recognition procedure: the procedure analysed	198	(1)
Structure and definitions	199	(1)
The request to the employer for recognition: conditions of validity	200	(3)
The implications of the employer's response to the request	203	(1)
Applying to the CAC: conditions of admissibility, and the implications if the CAC accepts an application	204	(8)
Determining the appropriate bargaining unit	212	(2)
The criteria and procedures for determining recognition	214	(9)
Access to workers and campaigning during recognition ballots	223	(6)
The consequences of recognition	229	(5)
The effect of voluntary recognition pursuant to a request under the statutory procedure	234	(1)
Overview and definitions	234	(2)
Restrictions on termination	236	(2)
Provisions relating to the `method' of collective bargaining	238	(1)
Changes affecting the bargaining unit	239	(1)
Overview and definitions	239	(3)
Either party belives the bargaining unit is no longer appropriate	242	(3)
Employer believes unit has ceased to exist	245	(2)
Position where the CAC decides the new bargaining unit	247	(4)
Residual workers	251	(1)
Derecognition of Trade Unions	252	(18)
Sources and general principles	252	(3)
The statutory derecognition procedure: overview and general principles	255	(1)
Derecognition at the request of employers or workers: general	256	(1)
Definitions	256	(1)
Employer employs fewer workers	256	(4)
Employer's request to end arrangements	260	(3)
Workers' application to end arrangements	263	(1)
Derecognition where no ballot was held prior to recognition	264	(2)
Derecognition where the recognised union is not independent	266	(1)
Workers' application to end bargaining arrangements	267	(3)
Effect of loss of certificate of independence by a recognised union	270	(1)
Protection Against Dismissal or Other Detriment for Acts Relating to the Recognition Procedure	270	(7)
Overview	270	(1)
Protection against detriment	271	(4)
Protection against dismissal of employees	275	(2)
The Human Rights Act 1998 and Recognition	277	(3)
Collective Bargaining and Collective Agreements	280	(15)
Sources and general principles	280	(1)
The duty to disclose information	281	(6)
Collective agreements	287	(1)
The function of collective agreements	287	(1)
The legal status of collective agreements	288	(3)
Collective agreements: protection against detriment and dismissal	291	(2)
Collective agreements and workforce agreements: working time and parental leave	293	(2)
The Effect of a Transfer of the Undertaking on Recognition and Collective Agreements	295	(4)
Effect on recognition	295	(1)
Effect on collective agreements	296	(3)
Statutory Rights of Collective Representation and Consultation other than Collective Bargaining	299	(90)
Introduction	299	(4)
The Duty to Consult on Redundancies	303	(30)
Sources and general principles	303	(2)
Proposed dismissals covered by the duty to consult	305	(1)
The meaning of `redundant'	305	(1)
Groups covered by the duty	306	(1)
A minimum of 20 employees at one establishment	307	(3)
When consultation must begin	310	(3)
The persons who must be consulted	313	(7)
The rights of appropriate representatives	320	(3)
What is meant by `consultation'?	323	(2)
Remedies	325	(6)
Notification to the Department of Trade and Industry	331	(2)
The Duty to Consult on a Transfer of the Undertaking	333	(10)
Sources and general principles	333	(2)
The persons who must be informed and consulted and their rights	335	(1)
The duties to inform and to consult: scope and timing	336	(4)
Remedies	340	(3)
Health and Safety	343	(5)
Sources and general principles	343	(5)
Occupational Pensions	348	(2)
Training	350	(1)
European Works Councils	351	(38)
Sources and general principles	351	(3)
Bodies concerned with the enforcement of the Regulations	354	(1)
The meaning of `employees' representatives'	355	(1)
The application of the Regulations	356	(1)
Community-scale undertakings or Community-scale groups of undertakings	356	(2)
The location of central management	358	(2)
Minimum number of employees	360	(1)
Establishing the number of employees	361	(1)
The obligation to negotiate an agreement for a European Works Council (EWC) or Information and Consultation Procedure (ICP)	362	(2)
The establishment of a Special Negotiating Body (SNB)	364	(1)
The composition of an SNB	364	(1)
Arrangements for a ballot	365	(2)
The role of the independent ballot supervisor	367	(3)
Position where a consultative committee exists	370	(2)
European Works Councils (EWCs) and Information and Consultation Procedures (ICP)	372	(1)
The roles of management and the SNB and the options available to them	372	(1)
Content and scope of an EWC agreement	373	(1)
The `statutory model' (or `Subsidiary Requirements')	374	(4)
Failure to establish an EWC or ICP or comply with an agreement or the statutory model	378	(1)
Confidential information	379	(3)
Rights of individuals in relation to EWCs and ICPs	382	(1)
Rights to time off	382	(1)
Protection against dismissal and other detriment	383	(1)
Situations where the Regulations do not apply wholly or in part	384	(2)
Transitional provisions	386	(3)
Industrial Action	389	(182)
Introduction	389	(6)
Liability for Industrial Action	395	(23)
Liability in tort	395	(1)
Sources and general principles	395	(1)
Inducing breach of contract or interfering with performance of a contract by unlawful means	396	(5)
Liability for inducement to breach, or interference with, other legal rights	401	(2)
Interference with trade or business by unlawful means	403	(4)
Conspiracy to injure (or `simple' conspiracy)	407	(1)
Conspiracy to commit an unlawful act or use unlawful means	408	(1)
The statutory right of action	409	(1)
When is a trade union liable in tort?	410	(1)
Sources and general principles	410	(2)
Determining liability under statute	412	(4)
Liability at common law	416	(2)
The Scope of Statutory Immunity	418	(17)
Sources and general principles	418	(1)
Torts which are granted immunity	419	(1)
In contemplation or furtherance of a trade dispute	420	(1)
The definition of a trade dispute	420	(7)
`In contemplation or furtherance' of a trade dispute	427	(3)
Exclusions from protection of the statutory immunities	430	(1)
Action relating to union membership and to recognition and collective consultation	430	(2)
Action in response to dismissal of participants in unofficial industrial action	432	(1)
Secondary industrial action	432	(3)
Industrial Action Ballots and Notice to Employers	435	(32)
Sources and general principles	435	(2)
When must a ballot be held?	437	(1)
Independent scrutiny of ballots	438	(2)
The balloting constituency	440	(5)
The content of the voting paper	445	(5)
The conduct of the ballot	450	(3)
The independent scrutineer's report	453	(1)
Information and notice to employers	454	(7)
Call by a specified person	461	(2)
The expiry date on the ballot mandate	463	(3)
The Code of Practice on Industrial Action Ballots and Notice to Employers	466	(1)
Civil Law Remedies	467	(23)
Injunctions	467	(1)
Sources and general principles	467	(1)
Applications for interim injunctions: the courts' approach	468	(11)
The forms and scope of interim injunctions	479	(2)
Contempt of court	481	(5)
Damages	486	(1)
Sources and general principles	486	(1)
Limits on damages against a trade union	487	(2)
Restitution	489	(1)
Sources and general principles	489	(1)
Picketing	490	(20)
Civil liability	490	(1)
Sources and general principles	490	(2)
The torts in outline	492	(4)
The Protection from Harassment Act 1997	496	(1)
The scope of statutory immunity	497	(5)
Criminal liability	502	(1)
Sources and general principles	502	(1)
The Trade Union and Labour Relations (Consolidation) Act 1992, s. 241	503	(1)
Highways Act 1980, s. 137	504	(1)
Obstructing a constable in the execution of his duty: the concept of a breach of the peace	505	(2)
The Public Order Act 1986 and the Protection from Harassment Act 1997	507	(1)
Picketing and the Human Rights Act 1998	508	(2)
Industrial Action and Contractual Rights	510	(17)
Sources and general principles	510	(2)
The effect on the individual contract	512	(1)
Strikes	512	(3)
Industrial action short of a strike	515	(2)
The effect of a `no strike' agreement	517	(2)
Employer responses to industrial action in breach of contract	519	(1)
Dismissal	519	(1)
Damages	520	(1)
Withholding pay	521	(5)
Lock-outs	526	(1)
Industrial Action and Statutory Rights	527	(29)
Sources and general principles	527	(4)
Unfair dismissal	531	(1)
Where industrial action is not `unofficial'	531	(12)
`Protected' industrial action	543	(5)
Other automatically unfair reasons for dismissal	548	(1)
Where industrial action is `unofficial'	549	(4)
Redundancy payments	553	(2)
Guarantee payments	555	(1)
Continuity of employment	555	(1)
The Rights of Trade Union Members	556	(15)
Sources and general principles	556	(1)
Common law rights	557	(6)
Statutory rights	563	(1)
The right to a ballot	563	(1)
The right not to be unjustifiably disciplined	564	(3)
Prohibition on indemnities for unlawful conduct	567	(2)
Remedy against trustees for unlawful use of property	569	(2)
Appendix 1---definitions	571	(10)
Appendix 2---time limits for Employment Tribunal claims	581	(2)
Appendix 3---list of Employment Tribunals	583	(4)
Appendix 4---list of offices of Advisory, Conciliation and Arbitration Service in England and Wales	587	(4)
Appendix 5---list of other relevant offices	591	(2)
Appendix 6---recognition agreement	593	(4)
Bibliography	597	(14)
Index	611