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STRIKE BALLOTS : BREAKING IN THE TROJAN HORSE S.M.

Bloxham*

Introduction A number of different factors have combined in recent months to ensure that the debate concerning the merits or otherwise of the legislative provisions regulating the activities of trade unions has remained high on both the political and industrial relations agendas. Leaving aside the Coal Dispute itself, during which no attempt was made to activate the statutory provisions of the Trade Union Act 1984, and surprisingly little use was made of the Employment Acts of t980 and 1982, there are at least two specific reasons for this focus of attention. First, there have been hints from Government Ministers that further legislation may be under consideration, prompting speculation that arguments on the right of the political spectrum in favour of effectively removing the freedom to strike in the public industries, may be about to prevail. 1 Secondly, there has been the spectacle of the trade union movement in apparent disarray over its response to the recently enacted statutory provisions for pre-strike ballots and the related issue of state funding of such ballots. 2 The question of whether trade unions which provide for strike ballots under their existing rules should take advantage of state funds under the provisions of the Employment Act 1980 s.1 remains controversial despite the efforts to avoid a major split within the T.U.C. at the 1985 Annual Conference. s It is against such a background that it is proposed to subject the strike ballot provisions of the 1984 Act to closer scrutiny. Although in operation at the the time of writing for little more than 12 months 4 Part II of the 1984 Act has been the object of *

LL.B., University of Lancaster. For further discussion see F. Hayek, "1980s Unemployment and The Unions", I.E.A., t980. 2 It is not proposed to deal directly with the legislative framework for statefunding of ballots under the 1980 Act. However reference will be made to those provisions where appropriate. 3 The A.U.E.W. had applied for and received state-funds of over £1 million, in breach of T.U.C. policy, and faced the threat of expulsion. Other unions were sympathetic to the A.U.E.W. position, in particular the E.E.P.T.U. which had threatened to withdraw from the T.U.C. if that threat materialised. 4 Date of commencement for Part II was 26th September 1984.

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judicial scrutiny in a small number of cases at first instance and on one occasion in the Court of Appeal. 5 Before turning to the case law though it is intended to outline the legislative framework and to identify the policy objectives of the Act; to examine the underlying assumptions upon which the provisions appear to be based, and to assess the efficacy of such provisions in achieving those objectives. In undertaking this task it will be necessary to observe the experience of ballots, as a particular democratic mechanism within trade unions, both prior to and since the commencement of Part I1 of the Act. It is also intended to locate this examination within the wider conceptual framework of theoretical perspectives on both industrial democracy and trade union autonomy. In undertaking this task, it will be demonstrated that certain entrenched assumptions, on both sides of the industrial and political divide, require a fundamental examination if they are to form a sound basis for policies and strategies in the context of industrial conflict.

The Statutory Framework Before proceeding further it would therefore seem appropriate to summarise the legal framework for pre-strike ballots created by the 1984 Act. In the absence of an affirmative ballot, s.10(1)-(2) removes the immunities conferred by s.13 T.U.L.R.A. 1974 (as amended by the 1980 and 1982 Acts) from action in tort for "an act done by a trade union "s Jf that trade union has (a) induced a person to break his contract of employment or to interfere with its performance, or (b) induced a person to break a commercial contract or to interfere with its performance by inducing another person to breach or interfere with the performance of that other person's contract of employment. S.10(3) requires that "an act shall be taken as having been done with the support of a ballot" only if: (a) the ballot applied to the act in question (b) a majority were in favour of such action, and

Austin Rover Group Ltd v. A.U.E.W., 13/11/84(transcript: Association). 6 See Employment Act 1982, s.15 for interpretation of this phrase and the related concepts of "authorisation" and "endorsement". For further discussion see below.

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(c) the first authorisation or endorsement ... and in the case of authorisation, the relevant act itself did not take place either prior to, or more than 4 weeks after, the ballot. The wording of the ballot paper itself is subject to statutory requirements. S.11(4) specifies that the "appropriate question" under S.10(3) must require the voter to say yes or no as to whether he is prepared to take part in a strike, or other industrial action, involving him in a breach of his contract of employment. 7 S.11 also requires that ballots must be secret (but does not require postal ballots) and that all members of the trade union, who it might reasonably be believed will be called upon to take the relevant action, be entitled to, and be granted a reasonable opportunity to vote without interference from or constraint imposed by the trade union. Failure either to hold a ballot, or to act in accordance with the result of the ballot, has the effect therefore of exposing the trade union concerned to potential civil liability. Although there are variable statutory limits to the amount of damages awardable, depending upon the size of the union's membership, the sums involved remain as a definite deterrent. Trade unions with a membership of between 5,000 and 20,000; 25,000-100,000; and in excess of 100,000 may be subjected to fines up to £50,000; £125,000 and £250,000 respectively. 8 Furthermore, non-compliance with the terms of any court order could lead to fines for contempt 9 and ultimately the prospect of sequestration of a union's funds, lo The

Legislative

Objectives

The provisions of Part II of the 1984 Act represent a departure from the tradition of voluntarism which has in general characterised the regulation of British industrial relations since the war. 11 They have been described as "a decisive break from (the) cross-party The Clause was described by Lord McArthy as "the intimidation provision" of the Bill during its second reading in the House of Lords. See H.L. Debates Hansard vo].451 co1.1293. Employment Act 1982, s.16. 9 See A.R.G.v.A.U.E.W. (T.A.S.S.) [1985] I.R.L.R. 162; Express & Star Ltd v. N.G.A. 24/6/85 (transcript: Association) and see below footnotes 49 and 55. lO See Richard Read (Transport) Ltd v. N.U.M. (S. WALES Area) [1985] I.R.L.R. 67. 1t For further analysis of the legal framework see J. Hutton, "Solving the Strike Problem", 13 I.L.J. (1984), 212.

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consensus". 12 They do however fall short of the direct interventionism of the ill-fated emergency provisions of the Industrial Relations Act 1971, which are discussed below. 13 They are perhaps best explained by reference to the Employment Act 1980 which provides for funds to be paid to trade unions by the Certification Officer for expenditure incurred in conducting ballots on, inter allia, industrial action. TM The failure of the trade unions to respond voluntarily to this financial carrot of state-funding for secret ballots has provoked the government into wielding the legislative stick and dismantling the framework of immunities, in order to impose a particular form of democratic decision-making upon them. As the Secretary of State for Employment declared in 1982, "It is now clear that many trade unions have not shown the will to take the necessary action themselves. The government will therefore look more closely at what options are open to them, including legislation to achieve what must be the common goal of making unions more representative and democratic. ''is As indicated above, the recent shift in the position of the T.U.C. may, on one interpretation, be seen as reflecting the effectiveness of that legislation. The 1983 Green Paper "Democracy in Trade Unions ''is was that "closer took" and as such underlined the government concern with democracy. As the opening words state: "Much public concern has been voiced about the need for trade unions to become more democratic and responsive to the wishes of their members". ~7 However it would appear that underlying that formal concern was a desire to harness a particular democratic form as a means of restraining strikes and other industrial action particularly in the public sector industries. A closer scrutiny of the Green Paper itself reveals two specific reasons for concern about the internal democracy of trade unions. First, there is a concern for the interests of the individual member. "A strike can cost an employee dearly. The result may not only be a loss of pay .. it may also mean the loss of his job." Secondly lz

' ibid.

is Industrial Relations Act 1971, ss.138-147. 14 EmploymentAct 1980, s.1. Originally the scheme was confined to postal ballots by the Funds for Trade Union Ballots Regulations 1980 Reg.6 (S.I. 1980 No.1252). Since February 5th 1985 though the 1984 Regulations have been in force and that particular requirement has been withdrawn (S.I. 1984 no. 1654). ~5 Guardian 15/7/82. ~6 Cmnd.8778. 17 Cmnd.8778paragraph 1.

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there is concern for the interests of the community. "Strikes may damage economic performance, reduce living standards and destroy jobs far beyond the ambit of parties to the dispute. ''18 The prescription of strike ballots as a panacea for the twin concerns of individual rights and the economic strategy of the day, is not unproblematic as the Green Paper assumed. First, it regards "The argument of principle for strike ballots" as "simple and unanswerable". 19 As will be argued below, there exist alternative democratic forms which are equally capable of achieving the stated objectives. Furthermore, such a prescription is of questionable merit, in the industrial relations context, raising as it does the issue of union autonomy. Secondly, the Green Paper invokes a vision of "the spectacle of strike decisions being taken by a show of hands at stage managed mass meetings to which outsiders may be admitted and where dissenters may be intimidated". 2° However, the claim that secret ballots necessarily lead to moderate decisions, or that rank and file are invariably manipulated by their tess moderate leadership, is based on assertion only and is not necessarily supported in theory, nor, as will be shown below, in practice. To illustrate the point, it is perhaps instructive to refer to the late Sir Otto Kahn-Freund's distinction between direct and representative democracy as a means of locating the merits or otherwise of secret ballots for any purpose in a wider conceptual framework. "Direct democracy means that the people ... or the workers on the shop floor, are called upon to make decisions on action to be taken ... Representative democracy, however, ... means that 'the people' do not make decisions on the merits of anything, but choose those who are called upon to do so. "2~ Thus secret ballots on the taking of strike action should be distinguished from secret ballots for the election of union officials. Kahn-Freund contends that the "real problem of direct democracy, in labour relations no less than elsewhere ... is how far the decisions ... to decide on a stoppage, are rationally motivated, not ... whether such decisions are reasonable in the light of the needs of the society, of ethical norms, or of legal prescriptions. "22 He further suggests that "Representative democracy .. is an attempt to make a virtue out of necessity and to combine an irrational process of decision-making by 1~ t9 2o 21 22

Cmnd.8778paragraph 56. Cmnd.8778paragraph 57. Cmnd.8778 paragraph 56. O. Kahn-Freund, Labour Relations, O.U.P., 1979, 5. Ibid. at 23.

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the people with a maximum chance of achieving reasonable decisions. ''23 Such a view is in direct conflict with the underlying philosophy of the Act which assumes that the more reasonable, or moderate, decision wilt prevail over the irrational, or extreme, decision under such a form of direct democracy as is represented by secret strike ballots. For Kahn-Freund though "the test for democracy is not who makes the decisions, but who chooses those who make them, and who can be chosen. ''24 Although it is not within the scope of this paper to address the issue of secret ballots for election of union officials, it is certainly arguable that particular reform could well be regarded as preempting the need for strike ballots themselves. However even this suggestion ignores the various factors which already exist within the collective bargaining system to ensure that union leaders and officials are accountable to their membership. 2s What is of relevance to secret ballots in general and strike ballots in particular is the question of whether it is desirable or efficacious to impose such procedures upon trade unions by way of a policy of legal interventionism, particularly in view of the tradition of voiuntarism in such matters. Kahn-Freund outlines the two means by which the law can seek to protect trade union democracy in the following manner. On the one hand "the law can be invited to ensure that union constitutions comply with certain standards of democracy ... i.e. impose on the unions certain constitutional principles formulated by law." On the other hand it can "play a role in guaranteeing to members such democratic rights as the union constitutions give them .. here the law does not impose anything from above but merely provides sanctions for the unions' self-created norms." He suggests that the former "must surely be a matter which the law should severely leave alone" and that "the role of the law must be confined to the more modest task of guaranteeing to the individual member the observance of union constitutions adopted by the unions autonomously... ''26 It is submitted then that the use of the law to impose a particular form of international democracy on voluntary organisations such as trade unions is of questionable merit. Such an approach represents a Ibid. at 24. .... 24 O. Kahn-Freund, Labour and the Law, 2nd ed., Stevens, 1979, 210. 25 R. Fairbrother,All Those in Favour, Pluto Press, 1984, chs.3 and 4; R. Undy and R. Martin, Ballots and Trade Union Democracy, Blackwetl, 1984, ch.5. 26 O. Kahn-Freund, "Trade Unions, the Law and Society", 30 M.L.R. (1970) 241, 263-264. "~

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major departure from the traditions and culture of industrial relations in this country and as such contains the potential for disrupting the cooperation and understanding which, despite popular mythology, exists to a fair degree in most industries between employers and trade unions. Traditionally, trade unions have firmly resisted such attempts as there have been to interfere with their internal affairs, and employers have shown a marked reluctance to resort to legal action, both preferring to regulate their relations within a voluntarist framework rather than one of legal intervention and thus coercion. Ultimately both have to contend with a continuing relationship and in such a context, mutual co-operational is essential. Indeed it is certainly arguable that interference with union autonomy may in fact result in behaviour quite the opposite of that which the legislation seeks to achieve. Despite such arguments, however, there is evidence that the provisions of Part II of the 1984 Act have resulted in a new willingness on the part of employers to use the Courts. 27 The arguments presented in relation to the twin issues of democracy and autonomy would appear to lend support to the contention that inflation-control through wage-restraint is indeed the central concern, at least of the 1984 Act, if not of "post-war industrial relations policies ''28. It is certainly arguable that reform of trade union democracy is a more politically acceptable mechanism than a "wagesfreeze" or other restrictive income policy. Thus, on the assumption that ballots lead to moderation, the requirement of pre-strike ballots as a condition of immunity from liability in tort, provides the appropriate mechanism for effecting wage-restraint. The Voluntary Use of Ballots by Trade Unions

In a recent survey of 55 trade unions it was found that "as part of the procedure for calling industrial action, just over a third of the unions surveyed provide for ballots of members before any industrial action can be taken, while four provide for special delegate conferences to vote on strike action. ''29 Among those 21 unions are the G.MB.A.T.U., which requires a two-thirds majority, the A.U.E.W., whose executive are empowered to call a general strike if there is no z~ See Labour Research Oct. 1958. For further comment see R. Benedictus, 14 I.L.J. (1985), 176, 188-189. 2e P. Davies and M. Freedland (eds.), Kahn Freund's Labour and the Law, Stevens, 3rd ed., 1983, 2-11. 29 (1982) 276 I.R.-R.R. 2.

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time to ballot members, and the N.U.M., which now requires a simple majority of those voting to be in favour of a national strike. Against these, however, the T.G.W.U., the largest union, requires a ballot vote at its delegate conference with a simple majority, so On such evidence it is clear that not all strikes can be regarded as the result of a politically motivated leadership, manipulating its membership by way of an undemocratic constitutional structure. Where trade unions have voluntarily adopted ballot provisions in their own rules the question remains as to whether such ballots have led to greater participation and thus, by the logic of the Green Paper, to greater moderation. Fatchett 31 suggests that the evidence is inconclusive as to the participation issue, although the record of workplace ballots is more impressive than that of postal ballots. In relation to the moderation issue Ewing and Rees 32 cite research which suggests that half of the unions using secret postal ballots are controlled by the left and comment that "the 'militant' Mr. Arthur Scargill was elected N.U.M. President by about 70% of N.U.M. members, while the 'moderate' Mr. David Basnett was appointed to the (then) G.MW.U. leadership". Indeed, a ballot of members of the latter union, which produced an 82% turnout during the Water Workers Dispute of 198283 gave overwhelming support to the option of continuing with strike action. More recently the ballot held by N.A.C.O.D.S. in October 1984 during the Coal Dispute, amply demonstrated the ability of such procedures to produce a high level of participation combined with a massive majority in favour of industrial action. Indeed that particular instance further underlined the legitimising effect of such a ballot and the industrial power thus gained by the trade union. Against that though must be set the rejection of industrial action in a number of ballots held by the N.U.M. during 1982-83 against the recommendations of the leadership. The failure of the N.U.M. to hold a national ballot during the 198485 Coal Dispute itself underlines a number of issues arising from the debate as to the merits or otherwise of a statutory framework for strike ballots. The strike was supported, despite the failure to ballot, by a large majority of the membership for a considerable period of time, and as such indicates the ability of alternative democratic mechanisms to ~u (G.M.W.U~i Rule 31; A.U.E.W. Rule 13(16); N.U.M. Rule 43 (following changes made during the miner's strike in 1984); T.G.W.U. Rule 13. 31 D. Fatchett, "Postal Ballots - some practical considerations", 1982 I.R.J. 13. 32 K. Ewing and W. Rees, "Democracy in Trade Unions II : Secret Ballots", (1983) N.L.J. 259.

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maintain contact between the leadership of a union and its members. Furthmore, the legal framework in operation since September 1984, was not activated. Instead the legal action taken against the N.U.M. was based entirely on common law principles governing the relationship between trade unionists and their unions. ~ As voluntary unincorporated associations, trade unions are, at common law, incapable of either being sued in their own names or being held vicariously liable for the torts of their officials or employees. However, statutory provisions provide that while trade unions are not to be regarded as corporate bodies, they are nevertheless capable of being sued at common law. 34 Thus any action by a member, seeking to restrain his or her trade union from calling for industrial action will invariably be based upon the union's rule book which, in effect, represents the contractual basis of their relationship. Although trade unions are free to draw up their rulebooks in accordance with the doctrine of freedom of contract, the courts have in the past demonstrated a willingness to exert a degree of control over the construction of existing union rulebooks. The need for strict observance of the rules, for instance, was emphasised in Bonsor v. Musicians Union. 3s The ability of the courts to intervene takes on particular significance in the light of the decision in British Actors' Equity A s s o c i a t i o n v. Goring when the House of Lords suggested that any ambiguities (in the rulebook) should be resolved in favour of the rights of the individual member. 3s In the context of a strike ballot, or the failure to hold one, the common law has a particular importance for the individual trade union member. It would seem that, in the absence of a ballot required by the rulebook, a trade union's power to discipline a member who refuses to participate in industrial action called by the trade union is subject to certain limitations. In Esterman v. NALGO, Templeman J. stated that in such circumstances "...a member was entitled to take the view

Clarke v. Chadburn [1984] I.R.L.R. 350; Taylor v. N.U.M. (Derbyshire Area) (No.l) [1985] I.R.L.R. 440; Taylor v. N.U.M. (Yorkshire Area) [1985] I.R.L.R. 445; Thomas v. N.U.M. (S. Wales Area) [1985] 2 All E.R. 1; Taylor v. N.U.M. (Derbyshire Area) (No.2) [1985] I.R.L.R. 65; Taylor v. N.U.M. (Derbyshire Area (No.3) [1985] I.R.L.R. 99. and for further discussion see K. Ewing, 141.L.J. (1985), 160. Trade Union and Labour Relations Act 1974, s.2. 35 [1956] A.C. 104. 36 [1978] I.C.R. 791.

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that this was an order which he might be under a positive duty to disobey. ,,37 This line of thought was recently confirmed during the Coal Dispute in Taylor v. N.U.M. (Derbyshire Area) (No.l), albeit in the context of an action brought by members of the N.U.M. seeking a declaration to the effect that the strike call was not made in accordance with the rulebook and was therefore unlawful. 38 Furthermore, in Taylor v. N.U.M. (Yorkshire Area), Nichols J. granted an interlocutory injunction restraining the trade union from instructing members to take industrial action. Interestingly though in the latter case the argument that the N.UM. should be compelled to hold a ballot was not accepted. 39 However, where the call for industrial action is made in accordance with the rulebook, the view of Shaw L.J. in Porter v. N.U.J. that the power of a trade union "extends to requiring the member to strike, although in doing do he may be in breach of contract with his employer ''4° suggests a different outcome. That decision was subsequently affirmed by the House of Lords. 41 More recently, again during the Coal Dispute, this approach has been followed in Thomas v. N.U.M. (S. Wales Area). 42 In that case, it had been argued that action organised by a trade union, even if in accordance with the rulebook, must be subject to an implied limitation that it be lawful. Rejecting this argument, Scott J. held that although "it must be almost certain that all the secondary picketing has exposed the South Wales branch to liability in tort for, at least, interference with contract," it was not, in itself, ulta vires. 43 ~t would seem clear then, on the basis of these authorities, that observance of the terms of the contractual relationship between a trade union and its members, as contained in the rulebook, provides an adequate test at common law for the regulation of the relationship between trade unions and their members in the context of proposed industrial action. Consequently, it is suggested that the existing common law framework may be better equipped to protect the (perceived) interests of the membership of a union than a statutory framework which provides redress for employers and other parties commercially affected ~' [1974]I.C.RI 525. [1985] I.R.L.R. 440. 39 [1985] I.R.L.R. 445. 4o [1979]I.R.L.R. 404. 41 [1980] I.R.LR. 405 42 [1985]2 All E.R.1. 43 Ibid. at 31.

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by industrial action, but not for the membership itself. However, the ability of the law itself effectively to influence the conduct of industrial relations where the trade union involved refuses to hold a ballot, must be questioned. It is submitted, therefore, that there is no clear-cut evidence that secret ballots, whether postal or otherwise, concerning strike action, union elections or other matters, necessarily lead to either increased participation, or that even where they do, that leads to greater moderation in terms of the action approved of, or the leadership elected by the membership. For the most part the evidence presented has involved ballots which are provided for in union rules, and which have been adopted voluntarily.

Compulsory Strike Ballots It would seem appropriate, before turning to the 1984 Act itself, to observe the limited experience of compulsory strike ballots in this country, and, briefly, under the Taft-Hadley Acts in the United States. The 1971 Act provided for the possibility of compulsory strike ballots in certain circumstances, under what were termed the "national emergency procedures", and it is to those provisions that attention will now be directed. Where an industrial dispute was likely "(a) to be gravely injurious to the national economy, imperil national security, or create a serious risk of public order, or (b) to endanger the lives of a substantial number of persons, or expose a substantial number of persons to serious risk of disease or personal injury, -44 the Secretary of State for Employment could apply to the National Industrial Relations Court (N.I.R.C.) for an order prohibiting industrial action for up to 60 days - the "cooling-off" period. 4s The Secretary of State had also to take the view that a strike had begun, or was about to begin, and that it would be conducive to a settlement if it were deferred. 4s Failure to observe such an order gave rise to potential fines for contempt of court and ultimately sequestration of a trade union's funds, under Schedule 3 of the Act. If, at the end of the "cooling-off" period, no end to the dispute appeared to be in sight, the Secretary of State could apply to the N.I.R.C. for an order imposing a compulsory strike-ballot which, in effect, extended the "cooling-off" period. Such an order was limited to situations where it appeared to the Secretary of ,4 Industrial Relations Act 1971,s.138(2)(c). 45 Industrial Relations Act 1971, s.139. 46 Industrial Relations Act t971, s.138(2)(a)(b).

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State that there were reasons for doubting that the membership of the union supported the onus on the trade union to demonstrate that the Secretary of State had taken a view that "no reasonable Minister could have formed. ''47 The N.I.R.C. was empowered to specify the workers to be ballotted, and to determine the question on which the ballot was to be taken. Although ballots were to be secret, no limitations were imposed on employers or trade unions with regard to their ability to persuade those balloted to vote "for" or "against". 48 In fact, the emergency provisions of the 1971 Act were only used on one occasion, with disastrous results. Following a protracted dispute and a work to rule, in what became known as the British Rail Dispute, in 1972, an order was granted for the imposition of a "coolingoff" period of 14 days. At the end of this period a further order was made imposing a secret ballot before any further action could be taken. The union, A.S.L.E.F., appealed against this decision of the N.I.R.C., and during the course of the appeal, Lord Denning articulated the assumptions now identified as underlying the 1984 provisions. He commented that "so far from infringing any person or property, the object of the ballot is to ensure the freedom of each man to express his own will. It puts a brake, of course, on the instructions of the union leaders. "49 The lack of appreciation of the realities of industrial relations which the comment revealed was demonstrated by the ensuing events. The ballot produced a turnout of over 80%, providing some evidence for the ability of compulsory ballots to produce greater participation although that participation can more realistically be seen as a demonstration of opposition to the imposition of a ballot in the first place. The result of the ballot was a 6-1 majority in favour of further industrial action, thus refuting Lord Denning's claim, and the assumption of a silent moderate majority. Furthermore it has been commented that "not only did it allow the unions to present an overwhelming display of strength without having to take action to prove it, but it effectively precluded any serious compromise of union goals by the leadership at the bargaining table. ''s° It would be unrealistic though to assume that all trade unionists would react in such "~ Secretary of Skate for Employment v. A.S.L.E.F. (No.2) [t972] I.C.R, 19. 48 Industrial Relations Act 1971, ss.141-144. 49 Secretary of State for Employment v.A.S.L.E.F (No.2) [1972] i.C.R. 19 at57. 50 A. Thomson and S. Engleman, The Industrial Relations Act, Martin Robinson, 1975, t16.

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a manner. Indeed, the history and traditions of a particular trade union, or industry, may well provide the major influence. In that respect, A.S.L.E.F. may not have been the most appropriate trade union to have become the test case. The American experience suggests a similar conclusion. As the 1983 Green Paper itself concedes, "during the 35 years the TaftHartley Act has been in force, ballots have been held covering 163 different collective bargaining units. The employer's last offer has been rejected by the workers in 155 cases and accepted only in 8."51 Furthermore, in the Canadian provinces of Alberta and British Columbia, there has been a similar experience which has led to the conclusion that "the only effect of such provisions is to make it more difficult for the union leaders to arrive at a settlement.''52 The 1984 Act, Part II It is against such a background that the impact and implications of recent judicial interpretations of the strike ballot provisions of the 1984 Act should be assessed. One of the first ballots to be held under s.10 concerned the continuation of an overtime ban in furtherance of a dispute about consolidation of annual bonuses, between the G.M.B.A.T.U. and the photographic company Ilford. Following conciliation by A.C.A.S., the company made an improved offer, conditional on it being put to the membership in a secret ballot. The G.M.B.A.T.U., following an off-site meeting at which, under its rules, members had voted overwhelmingly against acceptance, rejected the offer, tlford sought an injunction restraining the overtime ban. The case revealed the potential catch-all nature of sl0, as the court, in granting the injunction, held the overtime ban to be a breach of contract, despite the union's contention that overtime was merely voluntary. More significant, in the present context, is the impact of that ruling. The union's response was to hold a secret ballot. In a 95% turnout, 77% voted in favour of the overtime ban.s3 The dispute, and ensuing court action, demonstrated how the use of the 1984 Act can complicate and amplify the issues involved - the original offer concerning consolidation of an annual bonus was subsumed by the overtime issue. Furthermore it provides evidence of the double-edged nature of this particular legislative sword in that more members of the union voted than at the mass meeting and moreover :" C~nn~L8778paragraph 62. 52 O. Kahn-Freund,supra n.24at 238. 53 Reportedin (1984) 3321.R.-R.R. 13.

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overwhelmingly supported their union, thus conferring legitimacy upon the overtime ban and strengthening the bargaining position of their representatives in future talks. The more recent decision in Metropolitan Borough of Solihull v. N.U.T.54 concerned similar issues, although set against the different background of a national dispute and subjected to the full glare of publicity normally associated with such disputes. The N.U.T. had issued "Action Guidelines" which called upon its members to refuse to perform certain functions, namely providing cover for absent colleagues; supervising pupils during lunch periods; and attending meetings outside school hours. Ballots had been held in 9 of the 91 of the plaintiff's schools, but the requirements of ss.10 and 1t had not been met. Warner J. held that the action raised a serious question as to whether a breach of contract was involved and, applying the American Cyanamid ss test granted an injunction. The N.U.T. decided to comply with this by holding a ballot which resulted in a majority voting in favour of continuing industrial action,ss Both these recent instances, it would seem, give further credence to the argument that the imposition of secret ballots by legislative means may not necessarily lead to more moderate decisions being made by the membership. The assumption that union leaders are out of touch with their membership, must therefore be questioned. It may be, of course, that in seeking injuctions, and thereby interfering with the union's autonomy, employers merely force the membership back into the arms of its leadership by converting an industrial dispute into a test of union solidarity. Whichever interpretation holds true, and it may vary depending upon the particular circumstances of each dispute, the use of the courts to gain injunctions imposing the ballot requirements of the Act upon unions provides no guaranteed method of moderating industrial action. Indeed it may well be that by threatening union autonomy, or by ignoring alternative democratic processes already operated by unions, employers may merely be antagonising the membership of the union, an effect which is unlikely to be conducive to creating or maintaining harmonious industrial relations. The dangers, in industrial relations terms, of seeking injuctions through the courts, were clearly recognised on the one occasion, arising out of the Austin Rover Dispute in 1984, on which the strike ballot provisions of the 1984 Act have come before the Court of ~" [1985]I.R.L.R. 211. 55 American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396. ss (1985) 279 I.R.-L.I.B. 13.

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Appeal.s7 Sir John Donaldson M.R., in persauding Austin Rover not to pursue the injunction, commented that "the company would be digging its own grave" if it did so.s8 The Austin Rover Dispute arose after a pay offer made by the company had been rejected by the Joint Negotiating Committee of the trade unions involved, sg When the J.N.C.'s recommendation of strike action was supported by a majority vote at mass meetings the company sought injunctions against all 8 unions. The reaction of the different unions varied and provides a clear indication of the divisions within the trade union movement over the appropriate response to the strikeballot legislation. Only two were represented in court, the others adhering to T.U.C. policy of non-cooperation. Consequently StuartSmith J. granted injunctions against the other six, but allowed the A.U.E.W. and the E.E.P.T.U. further time to bring fresh evidence of the unofficial nature of the strike. Subsequently the E.E.P.T.U. instructed its members to return to work pending the outcome of a secret ballot and the injunction against it was dropped. However the A.U.E.W. successfully argued that the strike had not been authorised by the union, according to its own rules, and furthermore that the leadership had sufficiently distanced itself from the action of its members, so Legal

Problems

During the ensuing appeal by Austin Rover the Court of Appeal avoided the legal issues raised over the question of whether authorisation or endorsement of the relevant act had occurred. As the Master of the Rolls put it "interesting questions are said to arise concerning the effect of the Trade Union Act 1984 in such a situation. However, what really matters is that the A.U.E.W. members should know their union stands. "sl It is unfortunate that His Lordship did not take the opportunity to answer those "interesting questions" which are of direct relevance to the issue of trade union democracy. Instead, the A.U.E.W. were ~'~ Austin Rover Group Ltd. v. Association).

A.U.E.W.

13/11/84 (transcript:

5s Guardian 14/11/84.

s9 A.U.E.W. (Engineering and Foundry Section); E.E.P.T.U.; T.G.W.U.; G.M.B.A.T.U.; A.U.E.W.; (T.A.S.S.); U.C.A.T.T.;A.P.A.C.: N.S.M,M.. e0 Austin

Association). el

Ibid.

Rover

Group

Ltd.

v.

A.U.E.W.

13/11184 (transcript:

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persuaded to issue a statement which, in effect, operated as a repudiation of the strike, and which instructed its officials to take no action which might suggest authorisation. The statutory definition as to what constitutes official as distinct from unofficial industrial action has since been subjected to judicial scrutiny in Express & Star Ltd. v. N.G.A. 62 The Plaintiffs sought leave to issue a writ of sequestration against the N.G.A. on the grounds of their failure to obey, and breach of, an order of Hodgson J., made some months earlier. That order restrained the N.G.A. from inducing its members to act in breach of their contracts of employment unless the ballot requirements of the 1984 Act were complied with. Officials of the N.G.A. had since breached the order. The court, however, declined to impose the penalty of sequestration, deciding instead to impose a fine of £15,000 0tl the N.G.A. In deciding whether the N.G.A. was responsible for the acts of its officials, Skinner J. identified three questions for determination. First, was the N.G.A. vicariously liable at common law for the acts of its officials? This involved interpretation of the N.G.A. rulebook, and was answered in the affirmative. Second, were the officials "responsible officials" within the terms of the 1982 Act? This provides that "The act in question.., shall be taken to have been done by the union if, but only if, it was authorised or endorsed by a responsible person. ''63 The categories of responsible persons are further defined as (a) the principal executive; (b) any other person so empowered by the various rules; (c) the president or general secretary; (d) any other employed official; (e) any committee to whom an employed official reports. 64 In the latter two instances the persons in question must also be so empowered by the rules. 8s On the basis of his previous finding Skinner J. concluded that it followed that the officials were "employed officials" and thus the union would be liable unless a third question was also answered in the affirmative. The third question was whether those acts were repudiated by the N.G.A. The 1982 Act provides that "an act shall not be taken to have been authorised or endorsed ... if the act has been repudiated by the principal executive committee or by the president or general secretary. ''6s In answering this final question in the negative, Skinner J. held that "a repudiation involves an open disavowal and disowning ~z s3 s4 ss 6s

FinancialTimes 25/6/85 (transcript: Association). EmploymentAct 1982, s.15(2). EmploymentAct 1982, s.15(3). EmploymentAct 1982, s.15(4)(a). EmploymentAct 1982, s.15(4)(b)

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of the acts of the official concerned which must, at the very least, be communicated to the victims of the tort in question." Furthermore, it must be made "as soon as practicable after (the) acts have come to his knowledge. ''sT It would seem therefore that the potential is great for trade union officials to find themselves in situations where they expose their trade union to potential civil liability. In such circumstances it will not be sufficient for the leadership to remain silent. Instead, in the absence of a ballot, prompt and public distancing of the trade union from the industrial action, will be required. 68 One interesting consequence of the "repudiation" provision is that a president or general secretary of a trade union will be compelled to publicly repudiate the actions of union officials, despite the fact that they may be acting in accordance with the wishes of the members, in order to protect the union from potential civil liability. Thus by an indirect route, the combined effect of the 1982 and 1984 Acts, effectively compels the holding of a ballot, by means of the threat to the trade union's funds. The capacity of the legislation to drive a wedge between the leadership and membership was also demonstrated during the Austin Rover dispute. Following the A.U.E.W.'s statement of repudiation, many of the A.U.E.W. members continued their strike in defiance of the union's stance, thus highlighting the irony of the situation in that the union, in order to retain its immunities, was compelled to dictate to, rather than respond to the wishes of, its members. Indeed the extent to which the union leadership and officials were in fact divorced from the membership is reflected by the comment of one of the officials that "one effect is that the stewards and the militants are running the show, not the officials. '~9 However, in the face of the confusion and divisions over tactics between the different unions 70 and the intense media ~/ Express & Star Ltd. v. N.G.A. 14/8/85 (Transcript: Association). 68 As was the case during the 1985 Post Office dispute where the U.C.W. publicly distanced itself from the indusrial action of its membership. SeeThe Times 2/4/85. 69 Guardian 16/1 1/84. 7o Although T.U.C. policy was one of non-co-operation with the legislation, the issue remains controversial within the trade union movement (see footnote 3). The E.E.P.T.U., in the face of legal action by Austin Rover, promptly held a ballot; the A.U.E.W. adopted a strategy of repudiation, claiming the strike to be unofficial; the T.G.W.U. opted for more open defiance, declaring its support for the strike; the remaining unions involved chose to do and say little or nothing, although T.A.S.S. publicly refused to comply with the court order and was subsequently fined (see footnote 9).

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campaign orchestrated by the company, 71 the workforce voted at mass meetings a week later to return to work. The latter point also illustrates the discrepancy of the strike ballot provisions in that a particular democratic mechanism is required in order to validate decisions to take industrial action but is not deemed necessary to validate a decision to return to work. On the issue of autonomy the recent case of Shipping Co. Uniform Inc. v. International Transport Workers Federation (Uniform Star) 72 is also of interest. In granting an injunction restraining the I.T.F. from blacking the plaintiff's vessel, the Uniform Star, the court held that such an action constituted unlawful "secondary action" under the 1980 Act and that such conduct was also unlawful, in the absence of a ballot, under the 1984 Act. The question appears to have been avoided as to when, if ever, compliance with the ballot requirements of s.10 of the 1984 Act could have made lawful, industrial action which would otherwise have been unlawful under s.17 of the 1980 Act. It must be assumed though that the legal position is clear. The ballot requirements of the 1984 Act are but a condition of the T.U.L.R.A. 1974 immunities. A tortious act not itself covered by the immunities must therefore remain subject to potential civil liabilities regardless of the existence of a ballot. Nevertheless the legitimacy conferred upon such action, if supported by a secret ballot, would make the court's task of ensuring that justice be seen to be done, that much more difficult. 73 The comments of Staughton J. in the Uniform Star concerning the effects of the 1984 Act on a trade union's internal constitution, however, are of greater immediate concern. The I.T.F. had argued that s.10 required a union to ballot its individual members. As a federation of trade unions, the I.T.F.'s rules prevented compliance with the Act, because its members were not individuals but trade unions. It followed therefore that the Act could not apply to the I.T.F. This was rejected by Staughton J. who held that Parliament could not be supposed to have ~1 See Glasgow University Media Group, Really Bad News, 1982, ch.2, for further research on the role of the media in forming and shaping voter behaviour. 72 [1985] I.R.L.R. 71 at 76. 73 Recentstatements by the General Secrerary of the E.E.P.T.U. (Guardian 20/8.85) suggesting that members of his union working in the power industry be balloted over industrial action in support of G.C.H.Q. trade unionists, point to a potential situation of this kind. Set against the political background of the G.C.H.Q. issue, litigation on this point would provide a stern test of the credibility of the 1984 Act.

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intended to exempt the federated unions. "If they cannot and do not hold a ballot, then the action is taken without the support of a ballot and is unlawful, the remedy is for their rules to be amended. ''74 The implications of such a ruling for the T.U.C. itself have yet to be deliberated upon. It would seem though that as a federation of trade unions, the T.U.C. would equally be unable to comply with the ballot provisions of the Act, at least in the absence of major internal constitutional changes.

Conclusion Thus the 1984 Act, although formally avoiding the trap of compulsory ballots as under the 1971 Act, would appear, with the aid of judicial interpretation, to have the potential to undermine indirectly the autonomy of trade unions. In so far as the legislation is designed to allow employers to activate the legal mechanisms, the government has avoided a strategy of direct intervention. Nevertheless the appearance of this direct approach wears somewhat thin in the context of industrial disputes in the public sector, where the government is in effect the employer. It was this aspect of the provisions of Part I of the Act to which Lord Wedderburn drew attention during the 2nd Reading of the Bill in the House of Lords, arguing that they would be in breach of the International Labour Organisation Convention No.87, ratified by the United Kingdom. 7s Article 3 states that workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. Although Lord Wedderburn's argument concerned the provisions for an election of trade union officials, it would now seem that following the Uniform Shipping case, it is equally applicable to the strike-ballot provisions of Part II of the Act. Indeed Article 8 goes on to state that "the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this convention." Whether or not such an interpretation is sustainable in the courts may not be material, for the crucial point must be whether the membership of a trade union accept it or not. For, as Flanders has pointed out, "nothing seems more able to produce such a united front of resistance in a trade union movement, normally subject to all kinds of ,4 [1985] I.R.L.R. 71 at 76. 75 H.L Deb. vo1.451, co1.1338.

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rivalries and divisions, than an affront to its tradition of voluntarism. "78 The parallel provisions of Part III of the Act, requiring ballots on the continuation of trade unions' political funds, may provide a salutory warning to employers considering injunctions seeking to compel strike ballots. The reaction, thus far, of union members to such direct intervention has been to vote overwhelmingly in favour of retention of such funds. An affirmative strike ballot, demonstrating as it would that the wishes of the members were being responded to by the leadership, would now confer legitimacy on any subsequent industrial action. It would indeed be ironic if, in returning trade unions to their members by means of "ballot-box democracy", the legislation came to provide a vehicle for strengthening the bargaining power of trade union negotiators. It may well be that this particular prescription for the twin concerns of wage restraint and trade union democracy will serve merely to demonstrate the inherent contradictions of the so-called "unified policy", represented by the 1984 Act. The weakness would seem to spring from the underlying assumptions as to the nature of the relationship between the leadership and the membership of a trade union. Ultimately though the role of the law in such matters must be placed in perspective. The failure of the N.UM. to ballot at all during the 1984 Coal Dispute provides evidence of the inability of legal regulation to effectively shape behaviour. 77 In both the Ilford Dispute and during the Teaching Dispute in Solihull, the unions' calls for industrial action were supported in ballots, thus demonstrating that the conduct of industrial relations depends upon more than mere legal restrictions. During the "manning" dispute between British Rail and the N.U.R. in 1985, the union leadership in attempting to strengthen its negotiating position opted for a ballot but was subsequently, although narrowly, rebuffed. 78 Whether that result reflected a leadership out of touch with its members or a membership fearful for their jobs is an arguable point. Certainly the latter explanation is not easily dismissed. Social power "is sometimes supported and sometimes restrained, and sometimes even created by the law, but the law is not the principal t~ A. Flanders, "The Tradition of Voluntarism", t2 B.J.I.R. (1974), 352. 77 While this failure certainly contributed towards undermining wider public support, within the union itself the divisions between the various regions are better explained by reference to the pit-closure programme and, in the case of the Nottinghamshire Area N.U.M., to the history of the union. 78 Guardian 25/8/85.

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source of social power. "79 The dismantling of the immunities and the exposure of trade unions to civil liability may, by subjecting the conduct of industrial relations to the forces of the market, have reduced aspirations and achieved some degree of wage restraint in a climate of economic recession, but whether this will continue in a climate of economic recovery remains to be seen.

/Y O. Kahn-Freund, supra n.24 at 3.