Global analysis reveals tougher stance on strike law does not suppress industrial action

13 September 2011 – Tougher strike laws designed to further restrict the ability of UK workers to strike will not necessarily lead to a reduction in industrial action, according to a global analysis* of industrial action and the surrounding legislation conducted by international law firm Freshfields Bruckhaus Deringer.

The UK already has some of the toughest strike legislation in the world and yet it is relatively prone to strike action compared to other countries with less stringent industrial action regulations. The UK lost 23.8 working days through industrial action per 1,000 employees between 2005–2009 according to European Industrial Relations Observatory data, ranking behind France (132), Spain (60.4) and Italy (34.8). However, the UK ranks much higher than other countries such as Germany (6.2), the US (1) and Japan (1).

Nick Squire, Freshfields’ employment partner says, ‘With the increasing threat of a wave of public sector strikes over the coming months, the UK Government faces fresh calls to change the law by making it more difficult for employees and trade unions to organise and participate in industrial action. These include suggestions that it should increase the threshold for a strike ballot before a strike is considered lawful.’

‘A very simple question lies at the heart of industrial action legislation – where to draw the balance between an employee’s right to withdraw his labour and the freedom of a company to run its business? Even a very subtle shift in the scales can have a significant impact, making it either much easier or harder to go on strike. The pendulum typically swings towards the employee and trade unions in countries which see very high levels of industrial action.’

In France, in stark contrast to the UK, there is no obligation on private sector employees to give employers any notice that they intend to strike. Private sector employees also do not need to indicate the likely duration of the strike nor provide any minimum level of service. The only requirement is that the dispute underpinning the strike falls within one of the categories permitted by French law. French employers cannot close down the workplace during a strike unless it cannot operate or it can be demonstrated that there is a risk to employees or customers of continued operations.

A series of legislative changes introduced by the UK Conservative government in the 1980s imposed ballot and other procedural formalities to be complied with in order for a strike to be lawfully organised. Compliance with these formalities affects both the trade union’s immunity from action and the level of protection against dismissal afforded to striking employees. The principal purpose of introducing an obligation to ballot was to test whether there was genuine support from the workforce for a call for industrial action and to allow employers to prepare for industrial action.

Nick says, ‘Although some countries require employees or trade unions to take procedural steps such as notifying the employer in advance that a strike is planned, the UK’s detailed and complex procedural requirements for a workplace ballot are fairly unique.’

‘As part of the focus on the market economy while Mrs Thatcher was in power, the balance between protecting the rights of individuals to strike and minimising disruption to enterprise tipped firmly in favour of enterprise. While there are numerous cultural and economic factors also at play, the UK has seen a steady decline in strikes since the legislative change.’

In the US, strike action has declined since 2004. Although trade unions must give an employer a minimum period of notice to terminate existing collective bargaining agreements, there are few other procedural formalities to be completed before a strike can be convened. Notably, there is no requirement for the trade union to ballot members before going out on strike.

In Germany, where strike action is comparatively low, there is similarly no need for a workplace ballot to precede strike action although similar procedural requirements to those in the UK are in place. Trade unions must pass resolutions endorsing a strike and notify the employer. Each employee participating in the strike must also declare his willingness to do so (although an implicit declaration is acceptable). As in the UK, an employer can seek an injunction to restrain unlawful industrial action. German employers may have greater flexibility than in some other countries to minimise disruption to the business – they can shut down the business and hire temporary workers – but the overall picture is not so different from the UK.

In Japan, where a workplace ballot is required for industrial action to be lawful, the trend is towards achieving compromise. Unions are required to conduct collective bargaining before a strike can be convened and can only strike when either the company has refused the offer to negotiate or denied the requests made by the union at the collective bargaining.

Nick says, ‘The picture we have from the US, Germany and Japan suggests that the answer may not lie in legislating for systems and processes to regulate industrial action. The real driver behind strike action may be a more subtle combination of political, economic and cultural factors.’

He concludes, ‘There have been suggestions that toughening UK strike laws could be counter-productive and potentially antagonistic. Tightening ballot requirements may result in an increase in wildcat unofficial action, for example.’

‘While legislation which favours employers has reduced industrial action in some countries, those that err on the side of compromise and negotiation tend to be the most successful in minimising industrial action. The law is a key weapon in response to a strike threat. However, during a time of widespread cuts, it is in the Government’s interests to carefully manage the delicate relationship between enterprise, employees and trade unions to minimise the potential of increased strike action.’

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