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9780199269655

The Law of Industrial Action and Trade Union Recognition

by ; ; ;
  • ISBN13:

    9780199269655

  • ISBN10:

    0199269653

  • Format: Hardcover
  • Copyright: 2004-05-06
  • Publisher: Oxford University Press
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List Price: $266.66

Summary

This is a completely rewritten new edition of the classic text, The Modern Law of Strikes , by a team of expert practitioners. It provides a unique and authoritative guide to trade union recognition and the issues involved with present-day industrial action. Industrial action has become more frequent in recent years, and this book sets out the law and procedures which employment practitioners need to be aware of. It includes full coverage of trade union recognition, social security, employment protection rights, deductions from pay, and the impact of the Human Rights Act 1998 on strikes and picketing. Relevant forms and precedents are also included.

Author Biography


John Bowers is a leading figure in employment law, specializing in both individual and collective employment law, discrimination and pensions law, and judicial review. He is the author of a number of successful employment law books, including the sixth edition of Bowers on Employment Law. He practises from Littleton Chambers and is also a Recorder on the Midland Circuit. Michael Duggan is a barrister at Littleton Chambers, specializing in employment law. He has extensive experience of trade union work involving labour disputes. David Reade is a barrister at Littleton Chambers, practising across the spectrum of contentious and non contentious employment law.

Table of Contents

Table of Cases xxvii
Tables of Legislation xli
1. Introduction
1(8)
A. The Last Twenty Years
B. The Change in Temperature
C. Complexity
D. What the Parties Want From the Law
E. The Changing Nature of Strike Activity
F. Recognition
2. Industrial Action and the Individual Contract of Employment
9(6)
A. The Basic Principles
B. The Strike as a Fundamental Breach of Contract
Where no strike notice is given
Where strike notice is given
C. Alternative Legal Analyses
Suspension of contract
The union terminating on behalf of its members
Termination of existing terms with offer of new terms
D. Strike-free Agreements
3. Liability for Strikes: The Economic Torts
15(54)
A. Introduction
B. The Classic Fact Situations
Direct action
Indirect action
C. Direct Inducement of Breach of Contract
D. Direct Procurement of Breach of Contract
E. Indirect Procurement of Breach of Contract
The common fact situation
The constituent elements
F. Interference with Contract
G. Interference with Business
H. Interference with Trade or Business
Knowledge of business or contract
Unlawful means
Intent to harm the claimant
Loss to the claimant
Justification and statutory immunity
I. Intimidation
History
Threats
The person threatened
Immunity
J. Duress
K. Conspiracy
Combination
Intentionally causing loss
The predominant purpose to injure rather than further a legitimate interest
L. Suing a Trade Union
Historical development
Union branches
Vicarious liability
M. Intra-union Actions
Introduction
When is strike action official: ultra vires activities
Support by one union for another in dispute
Indemnifying pickets
Statutory action
4. The Trade Dispute Immunity
69(32)
A. History
Person
The protected torts
B. Meaning of Dispute
C. Contemplation or Furtherance of a Dispute
D. Parties to the Dispute
Introduction
Definition of worker
The identity of the employer
Employers' associations and trade unions
Disputes between employers
E. Trade Dispute
Definition
Related wholly or mainly
F. Legitimate Trade Disputes
Terms and conditions of employment (s 244(1)(a))
Termination of employment (s 244(1)(b))
Allocation of work (s 244(1)(c))
G. Unprotected Disputes
Personal disputes
Political disputes
Overseas disputes
Union recruitment strikes
Employer/employer dispute
H. The Scope of the Immunity
Not actionable
The relief restrained
The torts not covered
I. Secondary Action
Background
The principle
5. Ballots
101(22)
A. Background
B. Scope of the Ballot Provisions
C. When is a Ballot Needed?
D. Duration of the Ballot
E. Retrospective Ballots
F. The Right to Vote
The support of the ballot
G. Conduct of the Ballot
The question
H. Protection of the Voter
Voting at home
Overseas members
Industrial action at different workplaces
Independent scrutiny
Notice of the ballot
I. Counting the Votes
A majority vote
First authorization of strike
The call
J. Ballots and Injunctions
6. Industrial Action less than a Strike
123(10)
A. Background
B. The Work-to-Rule and Go-Slow
C. Overtime Ban
D. Ban on Particular Duties
E. Disruptive Meetings
F. Sit-in
G. Lock-out
7. Consumer Actions
133(4)
A. The Falconer Case
B. TULR(C)A 1992, s 235A
8. Picketing, Criminal Offences and Statutory Restrictions
137(50)
A. Introduction
Historical development
The Human Rights Act 1998
Definition of picketing
B. Civil Liability
Lumley v Gye and other economic torts
Public nuisance
Private nuisance
Trespass to the highway
Intimidation
Harassment
C. The Right to Picket and the Statutory Immunity
The scope of the immunity
Is there a right to picket?
D. The Code of Practice on Picketing
E. Criminal Law
TULR(C)A 1992, criminal offences (s 241)
Obstruction of the highway
Obstructing a police constable in the execution of his duty
Public nuisance
The Public Order Act 1986
The role of the police in strikes
F. Statutory Restrictions on Specific Industrial Action
Particular statutory prohibitions
Endangering life
Emergency provisions
Proposals on strikes in essential services
9. Industrial Action and Unfair Dismissal
187(22)
A. The General Nature of TULR(C)A 1992, s 238
The history
The basic questions for official action
B. Strike, Lock-out or other Industrial Action
What is a strike?
What is a lock-out?
What is the other industrial action?
Can an employer provoke industrial action and then dismiss those who participate in it?
C. Is the Employee a 'Relevant Employee'?
Was the dismissed employee participating in the action?
Relevant employee in relation to lock-out
D. The Importance of Date of Dismissal
E. Re-engagement
Time of re-engagement
Suitable terms of re-engagement
F. Discriminatory Selection
Unofficial action
'Protected' industrial action
G. Participation in Industrial Action and Contributory Fault
H. Applications to the Employment Tribunal
Examples
10. Employment Protection Rights and Social Security Claims 209(12)
A. Continuity of Employment
B. Guarantee Pay
C. Redundancy
D. Employment Agencies
E. Social Security
F. Jobseeker's Allowance
The disqualification
Trade dispute
Claimant's place of employment
Stoppage of work
Loss of employment due to stoppage
Length of disqualification
Withdrawal of labour
The disqualification exceptions
G. Income Support, Jobseeker's Allowance and Families
11. Injunctions 221(26)
A. Introduction
B. Granting Interim Injunctions: General Principles
C. Section 221 of TULR(C)A 1992
D. Factors in the Discretion
Exceptional cases
Maximum damages
No tangible loss to employees
Damages as an adequate remedy
The public interest in the freedom of the press
'Clean hands'
Consideration of defence
Delay
The risk of further industrial action
E. Undertaking in Lieu of Injunction
F. Quia Timet Injunctions
G. Mandatory Injunctions
H. Application for an Interim Injunction
The division
Without notice applications
Out of hours applications
The witness statement
Particulars of claim
Cross-examination
Undertaking in damages
Costs
I. Injunctions Against Persons Unknown and Groups
J. The Role of the Court of Appeal in Injunction Cases
K. Form of Injunction
L. Declarations
12. Restraining Sit-ins 247(2)
13. Committal for Contempt 249(20)
A. Introduction
B. Procedure: Personal Service
Service on individuals
Service on trade unions
Dispensing with personal service
Serving notice of a new hearing date
C. Contents of the Notice of Motion
D. Without Notice Applications
E. Can the Court Commit for Contempt of its Own Accord?
F. Standard of Proof
G. Evidence
H. Manner of Committing Contempt
Interference with administration of justice
Committal of third parties
I. Responsibility of Union for Members and Officials
J. Punishment
K. Receiver
L. Sequestration
Effects of sequestration
Application for order
Discretionary remedy
Third parties
Branch funds
Duties of sequestrators
14. Damages for Industrial Action 269(4)
A. The Measure of Damages in Contract
The maximum award
B. Property Immune from Enforcement
C. Practice in Damages Claims
Privilege
15. Deduction of Pay for Industrial Action 273(6)
A. Contractual Claims
B. Judicial Review
16. International Standards 279(4)
A. European Convention on Human Rights
B. International Labour Standards
17. Sample Forms and Precedents 283(18)
A. Claim Form to Restrain Strike Action by the Claimant's Own Employees
B. Claim to Restrain Occupation by Employees
C. Claim for Possession Against Unlawful Trespassers
D. Particulars of Claim: Secondary Action
E. Particulars of Claim: To Restrain Meeting in Working Time
E Order Restraining Unlawful Picketing
G. Order Restraining Trespass on the Employer's Premises
H. Order for Substituted Service of Injunction on Trade Union
I. Penal Notice to be Inserted on Injunction Order
J. Motion to Commit for Contempt and Sequestration in Respect of Breach of Order Made in Form D
K. Letter to Persons Occupying Employer's Premises
L. Draft Dismissal Letter
18. Trade Union Recognition: The Application 301(18)
A. Introduction
B. Recognition
C. Voluntary Recognition
The CAC
D. Statutory Recognition
Initiation of the statutory scheme
The small employer exemption
The meaning of 'worker'
When the condition must be fulfilled
The employer
Union or unions
19. Trade Union Recognition: The Bargaining Unit 319(32)
A. The Bargaining Unit
B. The Employer's Response to the Request for Recognition
C. The Union's Application to the CAC
The form of the application to the CAC
D. The CAC Procedural Response to an Application
Conditions for a valid application
An admissible application
E. The Decision on Admissibility
F. The Appropriate Bargaining Unit
G. Does the Application Remain Valid?
H. The Problem of Different Union Applications
20. Balloting 351(10)
A. Should a Ballot be Held?
B. The Form of the Ballot
C. The Conduct of the Ballot
D. Access for the Ballot
21. The Consequences of Recognition 361(8)
A. Declaration of Recognition or Non-recognition
B. Bargaining Procedures
Enforcement
The method not carried out
C. Bargaining Methods for Voluntary Agreements
D. Semi-voluntary Agreements
Disputes
The regulation of semi-voluntary agreements
A method of bargaining
22. Changes Affecting the Bargaining Unit 369(14)
A. Introduction
The application of TUPE
B. The Scope of Part III
The bargaining unit is no longer appropriate
The employer's belief that the bargaining unit has ceased to exist
C. The Union's Application
D. The Consequences of the CAC's Deciding upon a New Bargaining Unit
E. Residual Workers
Example
23. De-recognition 383(12)
A. Introduction
B. Small Employer Exemption
C. Employer's Request to End Arrangements
D. The Workers' Application to End the Arrangement
E. The De-recognition Ballot
F. De-recognition where the Original Recognition was Automatic
G. De-recognition of the Non-Independent Union
H. Loss of Independence
I. Appeal
24. Victimization 395(4)
Index 399

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