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Organising unofficial action

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This is written to complement the article I wrote last week on the successful unofficial strike by postal workers in Portsmouth. Since that article was written there was also similar action taken by postal workers in Bridgwater. The aim of that article was to show how unofficial action can both get round the failure of union leaderships to support effective action to further or defend the interests of their members and exploit loopholes in the anti union laws. This article is more of a legal briefing in that the law is explained in greater detail. However, I have also sought to draw out the practicalities involved in organising and participating in unofficial strike action. The relevant law is to be found in sections 20, 237 and 238 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Unofficial action deemed official by the law

Section 20 is the key section in terms of unions being legally liable for acts of stewards and other workplace reps who are elected or appointed in accordance with the union’s rules. To avoid liability the union will need properly to repudiate any act which is authorised or endorsed by one or more of such reps. It makes no difference that the rep has acted contrary to the union rulebook or any express instructions issued to that rep by the union leadership or paid officials. Therefore, if a union rep successfully persuades members to walk out the union is liable for this until it repudiates. In law this action does not become unofficial action until the union properly repudiates what the rep has done. Elected reps can be disciplined and indeed dismissed for organising unofficial action, although the rep will retain the right to claim unfair dismissal providing s/he has at least two years completed employment. (This employment requirement is not necessary where a rep is dismissed for trade union activities in which case the dismissal is automatically unfair. However, there is some hostile case law on this which excludes organising unofficial action as a trade union activity.) Union reps have to determine for themselves if they are at risk of victimisation before being up front about organising unofficial action.

It should be noted that all the above applies where a union rep is a member of strike committee, and this is the case even if the committee is an unofficial one in that it is not set up within the union’s rules. Moreover, a union is bound by the acts of such a committee even if the relevant union rep(s) opposed the organisation of unofficial action or were not present at the time the decision to organise the action was made. In short, the fact that at least one workplace rep is a member of the committee is sufficient to mean that the union is deemed to authorise the action and therefore must repudiate in order to avoid legal liability.

Reducing the risk of victimisation

This legal position is useful where there are a number of union militants who can form a strike committee but elected reps need to do what they can to avoid victimisation where they know or suspect the employer is out to get them. Such reps could absent themselves from the committee at the time the decision to call the action is made, and so make it as difficult as possible for the employer to prove the rep was involved in organising the action.

Industrial action is unofficial from the outset and none of the above applies where the strike committee is unofficial and no workplace reps are members of it. However, such action is rendered temporarily official, in the sense that the union will need to repudiate it, if the action is endorsed by one or more elected reps. This would be the case if one or more of the reps participates in the action. This seems to me to be another way in which union reps at risk of victimisation can take steps to reduce that risk. It can be argued that the rep is a participant in but not an organiser of the unofficial action, and therefore not in a different position to that of any of the other workers who take the action.

Action deemed official and unfair dismissal

The practical significance of the action being deemed authorised or endorsed by the union under s.20 TULRCA is that initially it is s.238 that applies to the action in terms of unfair dismissal law. The effect of this section is that an employer can dismiss all the workers who take the action, though the dismissals must take effect whilst the action is taking place not after it has come to an end. Where the employer carries out such dismissals then unfair dismissal rights are excluded and there is nothing in law that the strikers can do about the dismissals. However, if the employer fails to dismiss all the workers taking the action then the dismissals become selective and ordinary unfair dismissal rights apply, though remember these rights are only possessed by employees with at least two years completed employment.

Again union militants on the ground need to assess whether there is a real risk that the employer will be happy to dismiss all members of the workforce who take unofficial action. It is also important to take into account, particularly where all the workers are young, that most or all of them may not have the two years completed employment necessary to claim unfair dismissal. Also unfair dismissal rights are only possessed by employees and this does not include all workers. For example, workers who are employed on a casual basis, where contractually there is no obligation on the employer to offer work and no obligation on the part of the worker to accept any work offered, are not considered in law to be employees. A combination of all of these factors will generally mean that workers on zero hours contracts have no unfair dismissal rights even where technically they might be considered to be employees because they have to be on call and are prohibited from working for any other company.

Where the employer does not dismiss all workers taking the action than as above under s.238 workers who have unfair dismissal rights can bring ordinary unfair dismissal claims. However, it is important to take into account that such claims will not automatically or always succeed, and, in any case, winning the claim only means the workers will be given compensation by a tribunal. Ultimately, tribunals do not possess the power to order employers to reinstate dismissed strikers.

The effect of union repudiation and using ‘days of grace’

The significance of union repudiation is that s.238 ceases to apply and the industrial action has become unofficial within the meaning of the TULRCA. The practical consequence is that the employer can choose to dismiss on a selective basis and therefore deliberately victimise known militants – be they union reps or not. The union will probably refuse to provide any support or advice or representation to workers who are sacked under s.237 to avoid being found to have endorsed the action, as this would have the effect of invalidating the repudiation so that the union once more becomes legally liable. The Act expressly provides that organising industrial action, even though this is done in full compliance with the balloting laws, cannot attract legal immunity, and typically trade union leaderships will refuse to organise such action.

However, this is where practicalities intervene which give unofficial strikers a degree of legal protection. First, a union will have no opportunity to repudiate where a walk out is of short duration as the workers will have returned to work before repudiation can occur. This was the case with both the unofficial strikes by postal workers in Portsmouth and Bridgewater last week. Secondly, even where the duration of unofficial action is more sustained, the employer has to wait one working day after repudiation, before s.237 comes into operation to permit selective dismissals. It is useful to note that Saturdays, Sundays and public holidays do not count as working days even though these days may be contractually worked by workers taking the action. Therefore, if effective union repudiation takes place on a Friday, the employer cannot rely on s.237 until the following Tuesday.

All union militants, let alone revolutionary socialists, will be fully aware that the law cannot be relied on to defend workers rights and generally the law operates in favour of employers and the State. Nevertheless, in my view, it is useful to know the above law, and union militants can assess for themselves if it is of any use to them when it comes to organising or taking unofficial action.

This is the second of two articles by Roger opening up a discussion on the practicalities of organising unofficial action. The first can be found here. Neither article should be taken as the last word on the subject and activists should seek advice from fellow reps and other sources before embarking on unofficial industrial action, which does carry risks of dismissal and disciplinary action if anything should go wrong.