Industrial Action – Striking Fear in Employers – Top Ten Tips

The recent strike which affected postal services and the planned strike which will affect rail services signal a marked increase in industrial unrest this year. For most employers, the threat of a strike or industrial action will loom as a public and costly disruption to their business.

Faced with these prospects, we discuss the following ten key points that employers should know.

1.   Are employees entitled to strike? 

Under Irish law there is no positive right to strike, picket or engage in other industrial action. Instead, Irish law confers immunity or protection on participants in lawful industrial action from civil suits against them. Industrial action includes a picket at an employer's premises, a picket at the premises of the employer's suppliers or customers (known as secondary picketing), a strike, a work stoppage or a "work to rule" (i.e. refusing to carry out certain functions).

Members of a trade union who participate in lawfully balloted strike action are given immunity under the 1990 Act from certain actions and wrongs (torts) committed, provided certain conditions are met. Immunity is only given to acts done in contemplation or furtherance of a trade dispute. To qualify as a trade dispute, a dispute must be between workers and employers and relate to employment or non-employment and/or terms and conditions of employment.

Where a dispute relates to the terms or conditions, or the employment of an individual worker, and there are agreed procedures for the resolution of individual grievances, the immunities granted under the 1990 Act  will only apply only where those procedures have been exhausted.

2.   Can non-union members participate in a strike?

Yes – all employees have an individual right to withdraw labour. However, individuals who do not belong to an authorised trade union do not enjoy immunity from suit, except from criminal prosecution for conspiracy.

3.   What happens to the contract of employment when an employee is on strike? Do employers still have to pay?

The contract still subsists but is suspended unless terminated by either party and provided that the employer has been given proper and valid notice of the strike action. The mutual obligations of the parties, namely the obligation on the part of the employee to attend work and the obligation on the employer to pay, are suspended during this period. 

4.   Can an employer dismiss an employee for taking part in a strike?

Yes. But where employees are dismissed for taking part in a strike or other industrial action, special rules apply. A dismissal will be automatically unfair if:

• • it is based on an employee’s involvement in a strike or other industrial action, and:
     
  • one or more similar employees of the same employer have not been dismissed, or
     
  • a similar employee has been offered re-engagement after their dismissal and the employee has not been offered re-engagement.

If an employer does not dismiss all relevant employees or selectively re-engages some of those dismissed, the employer is exposed to claims of unfair dismissal.

5.   What about picketing? Is it unlawful?

It depends. Picketing is lawful if it is carried out in contemplation or furtherance of a trade dispute and it is conducted peacefully. That means it must be a peaceful means of persuading any person to work or to abstain from working. Any action which goes beyond this will not be classed as lawful picketing and will expose the union which has organized the action to potential liability. The immunity will fall away where the picketing is unlawful. Picketing is lawful in the following circumstances;

• • If the picketers are attending at the place where their employer works or carries on business. Picketers may picket a site where they never worked but where their employer works or carries on business;
     
  • If it is not practical for picketers to attend at the place where their employer works or carries on business, picketers can picket at the approaches to the place where their employer works or carries on business; or
     
  • If the picketers attend for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working.

Picketing is not lawful if picketers are engaged in abusive or threatening behavior, or if there are excessive numbers at the picket having regard to the size and location of the entrance in question.

6.   Can trade union members picket my premises?

Yes if you are the employer or associated employer of the employees party to the trade dispute. In general, picketing must be carried out at or near the place where the employer works or carries on business.

7.   Can trade union members picket my customers’ premises?

Yes. The picketing of an employer other than the one directly involved in the dispute is known as secondary picketing and is lawful and protected so long as it complies with the standard requirements in relation to picketing and the picketers reasonably believe, at all times, that the subject of the secondary picketing directly assisted the employer in frustrating the strike or other industrial action.

8.   What remedial actions can an employer take to deal with an unlawful picket?

If an employer believes that the picket is not lawful, then the remedy most commonly sought is a High Court injunction requiring the union to withdraw authorisation and to ensure that its members are not induced to take part in industrial action. The applicant can also seek to recover damages from the trade union for loss suffered as a result of an unlawful picket.

9.   Is the industrial action properly authorised?

Section 14 of the Industrial Relations Act 1990 requires trade unions to include in their rules a provision which obliges them to conduct secret ballots of their members prior to engaging in industrial action.  A deviation from the balloting rules can be grounds for a declaration from the High Court that the industrial action is unlawful:

• • All members of a union, who it is reasonable to believe will be called upon to take industrial action, must be entitled to vote.
     
  • The union must take reasonable steps to ensure that members can vote without interference or constraint by the union or any of its members, officials or employees and that members are given a fair opportunity to vote.
     
  • Voters should be asked whether they are prepared to take part in a strike or action short of a strike, whichever of the two is relevant.
     
  • The majority of those voting must answer yes to the appropriate question.
     
  • A union may not pose one question covering both types of action.

10.   Checklist for employers.

• • Has a ballot been properly held in advance of any picketing taking place? A secret ballot must be organised which involves notifying members or the ballot and holding the ballot. If a majority of the voting members vote in favour of industrial action, then before notice of industrial action can be served on the employer, the decision to engage in industrial action must be sanctioned by the ICTU.
     
  • Has adequate notice has been provided of the strike action? Strike notice of at least one week should be served on the employer, once a secret ballot has been properly held and the majority of the voting members have voted in favour of industrial action.
     
  • Is there a genuine trade dispute - a dispute between worker(s) and employers relating to employment or non-employment and/or terms and conditions of employment?
     
  • Does the dispute relate to the terms or conditions of, or the employment of, an individual worker? If so, have all of the internal dispute resolution mechanisms been exhausted?
     
  • Is the picketing lawful and peaceful? This applies to secondary picketing also.

Remember – where picketing is unlawful an employer can seek injunctive relief. Do not dismiss an employee if the dismissal is based on his or her involvement in a strike or other industrial action, without taking legal advice.

For more information please contact Karen Killalea, Partner; Johanne Duignan, Associate; or any member of the A&L Goodbody Employment team.