Discuss and analyse the legal concept of protected trade dispute. Explain also whether, in the light of the most recent financial climate (credit crunch, recession, depression), the right to strike is still a persuasive means of protection o

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Law Of HRM

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11/11/2011

Discuss and analyse the legal concept of “protected trade dispute”. Explain also whether, in the light of the most recent financial climate (credit crunch, recession, depression), the right to strike is still a persuasive means of protection of the employees’ rights or, alternatively, other forms of protection could be envisaged at legislative level.

A trade union is an organisation of workers that have joined together to reach common goals such as better working conditions or pay rates. A trade union on behalf of its members negotiate with employers, for such things as wages, working safety, unfair dismissals etc. The settlements agreed are binding on members, employers and sometimes non members as well. In the beginning of the formation of trade unions during the early 19th century under law these organisations were seen as illegal, however in 1824 the law was reformed through the Combinations Act 1824- 25 in which the unions themselves were not illegal, as long as they were operating in the ‘friendly society’ purposes, anything outwith this was more than likely still seen as illegal. Strikes were regarded as a “criminal molestation of the employer.” (Pitt, G 2011: p352) . Trade unions in 1871 under the Liberal government who introduced the Trade Unions Act and the Criminal Law Amendment Act, were legalised and seen as being for the good of employees and not in conspiracy against the trade, which they still need to adhere to, too this day under TULRCA s.11. The implementation of Art 11 of the European Convention of Human Rights guarantees the right to freedom of association. This through the Human Rights Act 1998 in the UK distinguishes the common law policy of the trade unions as being restrictive on trade.

The trade unions have free rein over the rules in which they adopt as long as they stick to numerous statutory requirements. The rules which govern trade unions under common law form a contract between its members and the union itself, which must be rigorously applied. The majority of these rules are expressly stated in a rule-book,(which under s.27 must supply a copy of this free of charge or for a nominal fee.) however some do come from other sources. These rule books as acknowledged by the House of Lords in the case of Heatons Transport v TGWU (1972) are not drafted through the correct channels and therefore might not be complete and might be implied terms.

Under Section 218 of TULRCA, when there is a disagreement of matters such as terms and conditions of employment between the employer and employees who are members of the union that cannot be negotiated, a trade union may get involved and ask member if they would like to take action. This is referred to as a trade dispute. If they agree to take action this may result in two ways, a strike where the employees refuse to fulfil there working duties or a short of action strike in which employees limit the work in which the carry out, this may be done by working at a below par pace or refusing to do any extra time. An example of this is Wandsworth London Borough Council v National Association of Schoolmasters Union Teachers [1992] LGR 91 in which the defendant union argued against the overload of work caused by the assessment requirements of the national curriculum that had been imposed by the government. The local authority wanted an injunction against the union disputing that it did not relate to terms and conditions and that it was in line with the public policy of the national curriculum, however it was held that it was a dispute of terms and conditions of their employment.

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Dismissals of employees are possible if a strike goes ahead under certain circumstances. It s possible to dismiss and employee under the actions of;

  1. Lock-Out- this would be covered by the provisions of s.238(1)
  2. Unofficial Strikes- this would be covered by provisions of s.237
  3. Dismissal In Connection with industrial Action- this would be covered by provisions of s.238(2)
  4. Official Unprotected Industrial Action- this would be covered by provisions of s.238(2)
  5. Protected Industrial Action- this would be covered by provisions of s.238A

The only one in which there can certainly be a case of unfair dismissal is ...

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