Human Relations - Employee Options - Essay Example

1 Human Relations Employee Options The Trade Union Reform and Employment Rights Act 1993 inserted s 235 A, intothe Trade Union and Labor Relations (consolidation) Act 1992, wherein it now provides a right to any individual who is (or is likely to be) deprived of goods and services because of unlawful industrial action to initiate court proceedings. The statutory "citizens right" empowers any individual to prevent disruptions of his supply of any goods and services because of unlawful (as defined) inducement of industrial action. It should be noted that the right can be exercised only by one or more individuals. Because of the legal definition of an individual, the citizens right cannot be exercised by, for example, any corporate body (such as a limited company) (DTI) Moreover, there is no right to engage in a strike in the UK.Consequently, as the UK Government pointed out in its 1998 Report to the ILO (UK Governments reply to the committee of Experts'1996 observation, para. 6) which in par states: Under UK law, individuals are almost invariably breaking their contracts under which They work when they take any form of industrial action, irrespective of whether the action is official or unofficial, or whether the action is lawfully or unlawfully organized. They can therefore be sued on an individual basis by employers for damages. A strike (or industrial action less than a full stoppage of work) will be in breach of the contract of employment for two reasons. Firstly, the striker is failing to perform the contractual obligations to work and to obey lawful instructions. Secondly, by seeking to 2 cause disruption to the employer's business, the striker is breaching the "implied term to serve the employer faithfully within the requirements of the contract". (Gibson LJ) It is to be noted that the taking of strike action is a breach of the employee's contract of employment, even where all the obligations imposed on the trade unions by Part V of The Trade Union and Labor Relations (consolidation) Act 1992 have been fulfilled. Not only is a strike in breach of the worker's contract of employment, we find that the breach is far reaching as we see in Secretary of State v. Aslef (N0.2) [1979] ICR 19, the inevitable breach of the duty of faithful services, that virtually all other forms of industrial action will breach the contract of employment, or refusing to carryout some aspects only of contractual duties. Such as in work slow downs. Further in Miles v. Wakefield MDC [1989] ICR 368 at 389, Lord Templeman states: "Any form of industrial action by a worker is a breach of contract which entitles an employer at common law to dismiss the worker. Also we find in Wiluszynski v. Tower Hamlets IBC [1989] IRLR 259, that in the event of an industrial action, the employer can also refuse to pay wages. Further in NCB v. Galley [1958] WLR 16, we find in the event of industrial action the employer can sue for damages. Under current law in the UK, recognition is a matter of fact and not a legal status. There is no legal means by which the worker or the union can compel the employer to reach an agreement, and, in particular, no right on the part of the worker or the union to compel the employer to submit to arbitration. The employer can seek emergency interlocutory relief. This procedure does not 3 require the claimant to prove the facts alleged (either beyond all reasonable doubt on the balance of probabilities): it is sufficient to assert the facts. At one time this had to be supported by an affidavit, but now only by a signed statement. Which so long as they appear credible, will be accepted by the court, notwithstanding challenge by the defendant. Furthermore, under this procedure the claimant need not prove his/her case (on any basis, as above) nor even demonstrate it to be stronger than that of the defendant. It is enough for the claimant to show a serious issue to be tried. As in the case of able American Cyanamid Co v. Ethicon LTD [1975] AC 396. If credible facts are asserted and an arguable case on the law demonstrated on the claimant's favor, the court will grant an injunction to stop the strike unless the union shows the employer's legal argument is unsustainable, since the "balance of convenience", is usually tilted towards protecting the employer (and the public) from the inconvenience of the consequences of a strike. The interlocutory injunction subsists until the trial of the action. In spite of the greater availability of speedy trials, the reality is that it is unusual for a trade dispute injunction ever to come to trial; success in the injunction and delay in the strike disturbs the balance of industrial power and resolution of the dispute is reached before full trial. (Unison) It is of course still necessary for the person wishing to bring civil proceedings to show that an unlawful, unprotected act, has been threatened; that he is party to a contract which will be (or has been) broken or interfered with by the unlawful act; and that he is likely to suffer loss, or has done so, as a result. In addition an individual deprived of goods or services because of the unlawful organization of industrial action (i.e. inducement of industrial action, which is protected by statutory immunities (will 4 be covered in more detail in the topic of union options), can also bring proceedings to stop this from happening. For this purpose it is necessary for the individual to show that he is a party to a contract which will be (or has been) broken or interfered with by the unlawful act. (DTI) The Employment Relations Act 1999 has left almost untouched the most significant ground of the decision of the House of Lords in Wilson and Palmer (in both cases the employers terminated the collective agreements without the agreement of the unions. The employer's purpose was to exclude the union from any role in representing the employees. The employers sought to induce their employees to sign new contracts of employment which, whilst maintaining their sustentative terms and conditions of employment, acknowledged the exclusion of the unions in representing the employees. The employer penalized those employees who did not sign the new contract by denying them a wage increase.) The right to join a trade union is explicit in the UK, and that right involves no more than the members right to hold a membership card and to avail him/herself of such services as the union provides which do not impinge on the member's employer. (UNISON) Thus, Lord Lloyd in approving the language of the Employment Tribunal in Palmer, made clear that the protection of the right of the union membership did not extend to the "exercise" of that right vis--vis the employer and in particular did not extend to the right to be represented to the employer by the union. Lord Bridge likewise clarified that membership of a union is not to be equated with using the essential services of the union, i.e., that of having a trade officer negotiate (and elucidate) terms 5 and conditions of employment. Lord Keith agreed, but Lord Slynn disagreed. Lord Browne-Wilkinson said that he would not share [Lord Bridges'] view on the issue but it was unnecessary to express any concluded view" the majority view is, of course, the law of the law of the UK. Legislation to be taken into account on Employer options: Employment Act 1982 Further restricted action to 'own' employer Employers could obtain injunctions against unions and sue unions for damage Employment Act 1990 Selective dismissal of strikers taking unofficial action Trade Union Reform and Employment Rights Act 1993 Individuals can seek injunction against unlawful action Wilson/Palmer Amendment (sweeteners to those moving to individual contracts) Employment Tribunals Act 1996 Employment [industrial] Tribunals Human Rights Act 1998 UK legislation (primary and subordinate) to be read consistent with act Employment Relations Act 1999 Amendments to Trade Union Labor Relations (consolidation) Act 1992 (Institute of Employment Rights) Employee options: 6 Employee options: The consequences for employees of taking industrial action are they may suffer damaging financial consequences, since they are unlikely to be paid when they withdraw their labour. They could also be putting their jobs at risk. However the Employment Relations Act 2004 introduces a provision which provides exceptions to dismissal: Dismissal for taking part in "protected" industrial action. Industrial action is "protected" if an employee is induced to take it by his union and the union in doing so complies with the legal requirements governing the organization of industrial action. Starting on or after 24 April 2000 if the employee started taking part in "protected" industrial action on or after 24 April 2000, it is unfair to dismiss him for this reason, unless his industrial action lasted for more than eight weeks and the employer has taken procedural steps as are reasonable to try to resolve the dispute. Employees who believe they have been unfairly dismissed in this way have a right to complain to an employment tribunal, regardless of their length of service or age. (DTI) Employees must realistically consider the position of the corporate entity in making its demands, additionally during this critical financial period where the corporate entity is engaged in entrenchment worldwide. Both Ford and GM are struggling to streamline operations as they respond to slowing sales and intensifying competition from global rivals. Executives complain that health care costs and other labour expenses-built up after years of negotiations with the trade unions-put them at a disadvantage as other automakers push deep into the market. Ford has been losing market share as other competitors continue to expand 7 their vehicle line-ups. The company has also been caught short by the slowdown in sales of large sport-utility vehicles, which are high-profit vehicles. Ford, like every other vehicle manufacturer, is anticipating an extremely competitive market place over the next decade and therefore needs to make sure its portfolio, manufacturing footprint, back-end activities and technology are up to the task, said Michael Robinet, vice-president of vehicle forecasting at CSM worldwide, an auto industry research firm. (Post) Additionally Ford announced that auto sales fell each of the last six years and its overall US sales are down more than one million vehicles. The CEO William Ford said, "We can not succeed in the long run if we're only focused on the short term". Ford went on to announce the closing of fourteen manufacturing plants in North America. (CNN) Could this be the writing on the proverbial wall The company is on a corporate campaign to return their operations to profitability. Not only would it be counterproductive for employees to entertain thoughts of industrial actions at this juncture. As I see it the most feasible option open to employees in the existing business climate is that they seek to enter into a collective bargaining agreement with the company and attempt to negotiate for a package similar to the hourly package which they were successful in achieving three years prior. Legislation to be taken into account regarding employee options: The Employment Relations Act 2004 Exception to dismissal Union options 8 Employers (Ford) who recognize the union, will negotiate with the union concerning "core" issues. If the union cannot get Ford to agree to its negotiation on core issues, the union must apply for statutory recognition. The initial step in this process is to first request recognition of its ability to negotiate on behalf of the workers. This request must be from the union representative to the employer, in writing. In the event the employer refuses to acknowledge or recognize the union, the union can apply to the Central Arbitration Committee. When the CAC considers the union's application, it will attempt to assess the factors involving the union general membership and determine whether or not there are other unions present in the particular work location. The customary process of the CAC in making its determination, is to organize a ballot among the affected workforce in an attempt to assess their concerns on the issue. In that the union at Ford is formally recognized (by the employer), it has the right to negotiate over terms and conditions. This negotiating process is commonly known as "collective bargaining", and all it takes is for the employer and the union to agree on how the arrangement will operate. If for some reason the employer and the union are unable to conduct amicable collective bargaining, then one of the three types of industrial action (bearing in mind that either one of these actions done hastily or improperly can position the employee is as serious peril) at their disposal; (1) strike-where workers refuse to work for the employer; (2) action short of strike-where workers take actions such as working to rule, goes slow, overtime bans, or call out bans; and (3) lockout-Where the employer stops workers from working (this latter industrial action was mentioned by me merely to lay 9 out the realm, but it does not apply to union options.) Any industrial action which is undertaken by the employees must be backed by the union to be deemed 'official'. Obviously industrial action is costly and should only be undertaken after all other efforts have been exhausted. If the union encounters a stalemate in its collective bargaining attempts with the employer, they are obliged to solicit the services of the Advisory, Conciliation and Arbitration Service. Advisors from the ACA will facilitate and assist the employer and employee (union) representative to resolve the dispute(s). If the assistance of the ACA does not yield positive collective bargaining results and the union representative feels that the two agreements are too far apart and it is not likely that the employee is willing to give in to the union's terms, then the last resort will be in one of two forms of industrial action. However, for this act to be lawful the union must adhere to the following: The dispute relates to a trade dispute between workers and their employer A secret postal ballot has been held and the majority of the members voting have supported the action. There is no protection for union members taking industrial action unless there's been a secret ballot. An independent scrutinizer union is needed if more than 50 workers are being balloted. If there is majority support, the action must begin within four weeks of the ballot (or eight if it is agreed between union and the employer). Detailed notice about the action has been given the employer at least seven days before it commences 10 Legislation to be taken into account regarding union options: Employment Act 1980 Restricted right to take secondary action Definition of lawful picketing restricted to own place of work Repeal of statutory recognition procedure Employment Act 1982 Further restrictions on industrial action Further restricted action to 'own' employer Trade Union Act 1984 Secret ballots before industrial action Employment Act 1988 New restrictions on industrial action and election ballots Employment Act 1990 All secondary action now unlawful Trade Union Reform and Employment Right Act 1993 7 days notice of ballots and of industrial action Independent scrutiny of striking ballots All industrial action ballots to be postal (Trade Union Law) Trade unions are unique organizations whose role is variously interpreted and understood by various interest groups in the society. Traditionally trade unions role have been to protect jobs and real earnings, secure better working conditions and life and fight against exploitation and arbitrariness to ensure fairness and equality in employment 11 contexts. In a wake of a long history of the union movement and accumulated benefits under collective agreements, a plethora of legislations and industrial jurisprudence, growing literacy and awareness among the employees and the spread of a variety of social institutions including consumer and public interest groups the protective role must have undergone, a qualitative change. It can be said that the protective role of trade unions remains in form, but varies in substance. The public image of union leaders is that they are autocratic, corrupt and indifferent to the public interest 'To much power, too little morality' sums up the public assessment of unions. There is a serious decline in union membership in most industrialized countries. There are two possible ways of looking at union membership figures. The first method is to simply add up all union members in a factory, office or country. This gives the overall membership position. In the second method, the density of membership is calculated. Density is the percentage of union members in relation to the total employment, for example, if unions have 50 members in a factory employing 100, the density is 50 per cent. Of the two methods density is generally accepted as the better indicator because it shows not only how many members, but also how many are not. (Central) Membership has dropped considerably in European countries. In France, which is the worst hit, the density of union membership is now estimated to be a miserable 10 per cent. In Holland, which is also badly affected, density is estimated at around 25 per cent. In England the density of union membership is 44 per cent. (Central) Contingency plan for strike 12 Upon receipt of the results of the secret postal ballot of the membership, I will have one week to put my plan into action. I will seek an emergency injunction. This move shall either stall the commencement of the industrial action or thwart it completely. If I am unable to secure relief in the court through an injunction, I will be compelled to apply an arm stronger than the unions-in view of the current financial crisis which the company is undergoing we can not afford to be subjected to any sort of industrial action, less our bottom line continues to show unfavorably at corporate. Consequently, those who strike will be immediately replaced and not invited back subsequent to a resolution of the dispute. Works Cited American Cyanamid v. Ethicon LTD [1975] AC 396 Cnn.news, Ford to close 14 manufacturing plants in North America, On line; from http://money.cnn.com/206/01/23/news/companies/ford_closings Department of Trade and Industry, Preventing an industrial action line; from www.dti.gov.k/er/union/action Employment Relations Act 1993 Employment Relations Act 1999 Employment Relations Act 2004 Gibson, LJ Employment Tribunal Institute of Employment Rights Miles v. Wakefield MDC [1989] ICR 368a + 389 NCB v. Galley [1958] WLR 16 Secretary of State v. Aslef (N0.2) [1979] ICR 19 Trade Unions, background, On line; from; www.bms.org.in/htm/trade_unions.htm Trade Union and Labor Relations (consolidation) Act 1992 UK Governments 1998 Report to international Labor organization Unison to the committee on Economic, Social and Cultural Rights UK Article 8 Washington post, On line; from www.washington post.com Wiluszynski v. Tower Hamlets IBC [1989] IRLR Read More