Trade Union Strategy
- and The Law
Georgina Hirsch, personal views as exUnion Legal Director
Outline
Collective Agreements
Industrial Action
What are Union Legal Services For?
Pervasive Imperatives
(Speaking as an ex-Union Legal Director)
o
Trade Union rights shopping list
o
Are you getting more than basic CAC rights?
o
Hidden ‘No Strike’ Clauses
o
CAC applications
o Description & Choice of bargaining unit
o Numbers – managing expectations
o 40% of those who can vote
o 3 year ‘lock out’
o Fighting union busters
Legally Enforceable Collective Agreements?
TUL(C)RA 1992 s179 “Whether agreement intended to be la legally enforceable contract
(1) A collective agreement shall be conclusively presume not to have been intended by
the parties to be a legally enforceable contract unless the agreement –
(a) is in writing, and
(b) contains a provision which (however expressed) states that the parties intend that
the agreement shall be a legally enforceable contract.
(2) A collective agreement which does satisfy those conditions shall be conclusively
presumed to have been intended by the parties to be a legally enforceable contract.”
Parts (3) & (4) => can state that certain parts are legally enforceable and use the other
parts for interpretation.
Against:
o
Traditionally quick and effective resolution through strike action
o
Courts under capitalism unlikely to be helpful re interpretation
o
Kaur v Rover
o
BA crew compliment
o
Awaiting ‘implied term’ test
•
A possible tool where unlikely to win
with strike
•
Hard Times bargains, where
employees making sacrifices to keep
their jobs
TUPE Transfers
TUPE Regs 2006
Generally contractual rights protected – Reg 4
Collective Agreement re terms and conditions continue in force - Reg 5
Liability for ‘sums payable’ to employee under Reg 4 does NOT transfer if the transferor
is subject to “relevant insolvency proceedings” (Reg 8(4))
Regs 4 (contractual rights) and 7 (dismissal) do not apply where the transferor “is the
subject of bankruptcy proceedings or any analogous insolvency proceedings which
have been instituted with a view to the liquidation of the assets of the transferor and
are under the supervision of a insolvency practitioner” Reg 8(6)
Strategic timing might mean push for transfer before
Questions re unions talking to potential buyers
INDUSTRIAL ACTION
Legal Challenges
&
Tory Plans
Gregor Gall highlighted the legal challenges and obstacles
579 2009
The Boring at the heart of Activism:
-
membership name, job, location, contact details
-
members entitled to vote, and long lapsed members
-
getting the no’nas on board for the future
WHAT ARE UNION LEGAL SERVICES FOR?
 About 10 years ago…
 Indemnity basis for PI funding
 No referral fees
 No self insurance premiums (CCFAs)
 Officers doing Tribunals
 Organisation of members….
..more of these
today challenges of these
The Golden Years:
 Subsidised or free employment tribunal by solicitors
 Freed up officers for other work

–
but less incentive to keep up with the law

tribunals got more legalistic
 Demands of new, less organised work places
 Anticipate attack on facility time, which will put further pressure on officers
Squeeze on funding pot over the golden years
Fewer accidents
Bumps and slips
Stress cases and costly discrimination cases increased
+
employment cases generally up astronomically – particularly when
mass job losses
Competition from non-union lawyers on no-win, no-fee
Future developments likely to make the pips squeak
Success fees from client’s damages
CCFA not recoverable
Possible ban on referral fees
Big figures for union funds
Can the present package continue?
Impact on service to members?
Is the free work a referral fee?
How might unions respond?
Role for workplace mediation for disputes
between employees?
Proactive re informal stage, and
resurrect ‘assertiveness’?
Officers start getting experience
re low value/prospects cases?
Bring in case workers instead?
But measure of value against officers?
Risks if traditional staff status..
Union Ts & Cs compared to external provision?
ET costs in case – member benefit and sols continue?
Contact
London
10 - 11 Bedford Row
London WC1R 4BU
DX 1046 London / Chancery Lane
T +44 (0) 20 7269 0300
F +44 (0) 20 7405 1387
Bristol
3 Orchard Court, St Augustines Yard
Bristol BS1 5DP
DX 78229 Bristol 1
T +44 (0) 117 930 5100
F +44 (0) 117 927 3478
E clerks@oldsquare.co.uk
W www.oldsquare.co.uk