Industrial Action And The Law

Author:Mr Séamus Given and Sarah Grace
Profession:Arthur Cox
 
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In recent times, there has been a marked increase in industrial unrest, including the threat of strikes and other forms of industrial action. While there is no absolute right to strike or take industrial action in Ireland, legislation provides freedom in certain circumstances to strike and an immunity from legal liability in respect of strikes and industrial action will be conferred, provided a number of conditions are met.

The relevant law is contained principally in the Industrial Relations Act 1990 (the "1990 Act") which:

confers immunities on workers where, in "contemplation or furtherance" of a "trade dispute", they participate in a "strike" or other "industrial action" provided the strike other industrial action is supported by a secret ballot and not less than one week's notice is given to the employer; regulates picketing; provides for secret ballots with respect to strikes and other industrial action; and restricts employers in obtaining injunctions to restrain a strike or other industrial action. WHAT IS "INDUSTRIAL ACTION"?

Section 8 of the 1990 Act, provides that the term "industrial action" means "any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer or to aid other workers in compelling their employer to accept or not to accept terms or conditions of or affecting employment".

The term strike is defined in the 1990 Act as meaning "a cessation of work by any number or body of workers acting in combination or a concerted refusal or a refusal under a common understanding of any number of workers to continue to work for their employer done as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment".

Industrial action includes action short of a cessation of work such, as a "go-slow", a work to rule, overtime bans and so on.

IS THERE A VALID 'TRADE DISPUTE'?

Section 8 of the 1990 Act defines a trade dispute as meaning "any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person".

ARE THE 'THE PARTIES' ELIGIBLE FOR PROTECTION?

Section 8 of the 1990 Act refers to workers and employers. The term "worker" is defined as meaning "any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises", but does not include a member of the Defence Forces or of the Garda Síochána.

An 'employer' is defined as meaning 'a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person'.

A 'trade union' for the purposes of Part II of the 1990 Act means "a trade union which is the holder of a negotiation licence under Part II of the Trade Union Act 1941", i.e. an authorised trade union.

SECRET BALLOT

A trade union must conduct a secret ballot prior to organising, participating in, sanctioning or supporting a strike or other industrial action.

Section 14 of the 1990 Act provides that the rules of every trade union must contain a provision that:

"The union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot"; "entitlement to vote in which shall be afforded equally to all members whom it is reasonable at the time of the ballot...

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