Industrial action: step by step
Joe O’Hara, a consultant for Thompsons, provides a general overview of the steps that unions should follow when taking industrial action.
As various unions have discovered over the last few years, it’s not easy staying on the right side of the law governing industrial action. But planning ahead will help to reduce the very real risk of a court restricting the right of workers in struggle from taking action to protect their interests.
Note: this step-by-step guide is not intended to replace unions’ internal precedents.
Steps to follow
Step 1: Ensure your trade dispute falls within the statutory framework. Is your correspondence with the employer and other documentation consistent with your definition of the dispute? Do not define it too narrowly: for instance “to get the employer back to the negotiating table”.
Step 2: Plan the action – will it be strike action, action short of a strike or both? This determines which question(s) appear on the ballot paper. Will the action be continuous (that is, your members take action on all days they can do so) or discontinuous (they don’t)? When do you aim to start the action?
Step 3: Which members will you call upon to take part in the action? They must all work for the employer(s) in dispute, though they do not have to be directly affected by the dispute. In other words, Rachel can take action in support of Taj, who has been disciplined; craft workers can take action in support of the clerical workers’ pay claim. Ballot only those members whom you intend to call out.
Step 4: Check your membership records – absolutely vital. Are your local officials sure that you have the names and current addresses of everyone who will be called out? For any who are not on check-off, do you know (a) their workplaces and (b) their work categories (for example: occupation, grade, pay band)? If not, allow time to update this information.
Step 5: Can you hold an aggregate ballot? The rules state that you must hold a separate ballot in each workplace unless (a) you ballot all your members working for the employer(s) in dispute (b) you ballot all your members with particular occupation(s) working for those employer(s) or (c) in every workplace in the ballot, there is at least one member who is “directly affected” by the dispute.
The rules for (c) are tricky, so take advice. If you fall within (a), (b) or (c), you can hold an “aggregate” ballot, otherwise you need one per workplace, even for the same employer.
Step 6: Appoint an independent scrutineer (IS) where there are 50 or more members in the ballot, and (when available) provide your members’ names and addresses in time for the IS to print and mail the ballot materials.
Discuss the form of the ballot (aggregate or workplace), the ballot paper (for example, one or two questions), the timetable and when the IS will produce their formal report. If you want (confidential) reports on how particular groups of workers voted (for instance, by region), the IS may ask for your membership data to be separated or tagged accordingly.
Step 7: Plan your timetable. Allow time to update your records and for your IS to print the ballot packs – the larger the ballot, the more time needed. The Code of Practice says you must give a minimum voting period of seven days for first class post both ways (from IS to the member and back again) and 14 days for second class. Beware workplace closures that could affect your timetable.
Step 8: Prepare your literature to go to reps and members, either in the ballot packs or separately. Ensure that all literature is consistent – a court will treat it as part of the mandate your members give the union.
Step 9: A Notice of Ballot must reach each employer at least seven days before the ballot opens. When the first day your IS posts ballot packs is a Friday, the employer must receive the notice during working hours the previous Friday.
Don’t serve a notice to arrive out of office hours or when the employer’s enterprise will be closed (for instance, on a bank holiday, during a summer shut-down or when a school is closed for the holidays). It is advisable to build in a safety net – in other words, allow an extra day.
Check and retain proof of delivery, such as a courier’s signed receipt, email or fax confirmation. The notice must state the union’s intention to hold the ballot; specify the intended opening date of the ballot; and identify the membership.
Step 10: Sample ballot papers. Send a sample (of each) ballot paper to each employer at least three days before ballot opens. If using different ballot papers (for example, colour coding for each employer in an aggregate ballot), send each employer a copy of each paper. If the ballot opens on a Friday, the sample must reach each employer during working hours on the Tuesday of the same week. Some unions include the ballot paper(s) with the Notice of Ballot.
Step 11: Ballot packs not received. During the ballot, forward to the IS the names and addresses of any members who contact you saying they have not received their ballot pack. Keep doing so until the IS tells you it is too late.
Step 12: Ballot closure. On the day the ballot is due to close, check with your IS that all is in order and confirm when their report is likely to reach you. If it does not arrive on time, chase the IS.
After the ballot
Step 13: Results. As soon as you receive the formal IS report, send the results to each employer and to all the members in the ballot (for members, you may be able to use electronic or other methods of communication provided it reaches all your members in the ballot directly, not by word of mouth).
The “results” are the number of (a) the votes cast (b) the “yes” votes (for each question on the ballot paper) (c) the “no” votes (again, for each question) and (d) the spoiled voting papers. Do not delay doing this – do not wait for your strike committee to decide whether you are going to take action.
You do not have to send the full IS report unless someone asks for it within the next six months. Nor do you have to reveal any confidential reports you have asked the IS to provide, such as a breakdown of voting by area. In an aggregate ballot, you need send only each of the figures provided by the IS for the total ballot – some employers (wrongly) think they can demand the results for their own workforce.
Step 14: Industrial action. Decide whether to call industrial action. Subject to the union’s rules, you need a simple majority of those voting on the question(s). Is the action to be continuous (and if it is, the start date) or discontinuous (in which case, the first set of dates). Will it be the same for all members?
Step 15: Seven days. Send a Notice of Action to each employer at least seven days before action starts, following the same procedure as for Notices of Ballot. The notice must state whether the action is to be continuous (in which case, give the start date) or discontinuous (give all the dates decided upon so far). It must also identify the membership to be induced to take action.
Step 16: 28 days. Start the action within 28 days of the last day of voting in the ballot. So, if the last day was a Tuesday, the action must get under way before midnight on the Monday four weeks later (the seven days for the Notice of Action does not extend the 28 days). If the employer agrees, the 28 days can be extended by a further 28 days (in one or more instalments) but no further. Get confirmation in writing/email.
Step 17: Pickets. Your pickets can attend only at their own place of work although they can picket any worker of the employer in dispute except fellow members working for the same employer whom their union excluded from
Step 18: Further seven days. If the action is discontinuous and you decide to add more dates, give a further seven day Notice of Action.
Step 19: Suspended action. Once the action has started within the 28 day (or extended) life of the ballot, you can suspend the action at any time to allow talks. In cases of continuous action, you can reach agreement with the employer on a suspension if you want to avoid serving a fresh seven day notice to restart the action.
You don’t need this if you are happy to serve a restart notice for suspended continuous action or if the suspended action was and remains discontinuous (provided the dates after the restart were covered by an earlier Notice of Action).
Step 20: Requests for IS support. If within six months of the close of the ballot, a member entitled to vote in the ballot or any of their employers requests a copy of the formal IS report, you should provide a copy as soon as practicable.
Describing the membership in the statutory notices
The Notice of Ballot and the Notice of Action must describe the union’s members in the ballot or to be induced to take action, as appropriate. The statutory requirements are described in more detail in the next section. Each union will use its own pro forma but in summary:
- If your ballot/action covers all your members working for the employer and they are all on check-off, say so.
- If all your members are on check-off but not all are involved, describe those involved. For instance: “all our members in manual grades, all of whom pay union subs by check-off”.
- If none of your members are on check-off, you must give the total number, plus lists of workplaces and categories (for example: occupation, grade or pay band) and the numbers in each. This is the only case in which you give the overall total number in the pre-ballot and pre-action notices.
- If some of your members are on check-off but some are not, you need to give the employer the total number of those not on check-off plus information from which it can readily deduce, for all affected members, workplaces and categories and the numbers in each. This usually entails giving (i) for those members not on check-off: the total number, the lists of workplaces and categories, and the numbers in each; and (ii) for those members on check-off, a reference to the most recent check-off records.