UK: The Statutory Rights of Trade Union Members: A Retrospective Analysis

Introduction

Throughout the 1980s and early 1990s successive Conservative governments introduced legislation regulating the internal affairs of trade unions. The legislation intervened in union affairs by prescribing secret ballots for elections, union political funds and industrial action. It also provided the individual member with an extensive array of rights, which they can enforce against their union. New Labour has largely retained the law unamended.

Participation measures were viewed as ‘empowering mechanisms’ to make individual union members instrumental in union decision-making. They wanted to introduce measures which would prohibit what were in their view discredited practices such as balloting at inconvenient branch meetings, indirect block-voting systems for union elections, and the holding of strike votes by show of hands in the intimidatory atmosphere of the mass meeting. In so doing, the Conservatives envisaged that the participation of the moderate member would curb the excesses of the militants within the organization; the belief apparently being that ‘rank-and-file’ members would be less radical than union leaders.¹

Conservative administrations introduced the following legislative provisions, designed to increase the participation and influence of individual members in trade union internal affairs:

Section 1 (3) of the EA 1980 offered trade unions financial subsidies for the holding of strike or other industrial action ballots, ballots for union elections, merger ballots, and ballots amending the rules of a trade-union. These provisions did not result in the widespread adoption by trade unions of the practice of holding ballots. This was because the TUC objected to this interference in trade-union affairs and recommended to affiliated unions that they neither seek nor accept public funds for union ballots. Trade unions conformed to this advice and no unions affiliated to the Trades Union Congress availed themselves of the public funds. The view was that trade unions had declined the opportunity to reform themselves voluntarily.

In response to the failure to procure voluntary reform the Conservative government introduced mandatory balloting. Section 1 of the TUA 1984 required that every voting member of a union’s NEC had to be elected every five years by secret postal ballot or workplace ballot of the membership. Section 10 (3) required the holding of a ballot prior to industrial action. Section 12 of the Act required unions to hold a ballot reviewing support for a political fund at least every ten years, replacing the single ballot requirement under the TUA 1913, and redefined the scope of the political objects of trade unions to include expenditure on advertising for a political party or candidate. In the EA 1988 the requirement to hold an election ballot was extended to non-voting members of the union, to the president and general secretary (section 12). Ballots for union elections were also made fully postal (section 14).

This element of the Conservative approach refers to the prescriptive requirements that had to be followed if the union was to call lawful industrial action, and to the measures introduced to make trade unions more responsible for the actions of their officials, lay organisers and membership, in an attempt to curtail industrial action and insulate the market-place from union excesses. Between 1980 and 1993 Conservative administrations introduced legislative provisions that sought to restrict and control the activities of trade unions in the sphere of industrial action.

In the EA 1980 the scope of lawful picketing was diminished, with picketing protected only at a striker’s own place of work (section 12). The Act also removed many of the immunities for secondary action (section 17). The EA 1982 removed the immunity of trade unions from liability in tort, established by the Trade Disputes Act 1906, allowing employers to proceed against unions, not merely individual union officers, in relation to unlawful industrial action (section 15). The Act also extended the power of the employer to dismiss strikers or those taking part in industrial action (section 9).

The introduction of the Trade Union Act 1984 marked a significant stage in the Conservative government’s attempts to hamper the ability of trade unions to engage in industrial action. The Act prescribed detailed requirements which had to be satisfied for lawful industrial action to be taken. First, it required the holding of a ballot prior to industrial action as a precondition for obtaining legal immunity from civil actions (section 10 (3)(a). Secondly, the result of the ballot had to be a majority in favour of the industrial action (section 10 (3)(b). The third requirement of a ballot was that the first authorisation or endorsement of the tortious act must have taken place after, but within four weeks of the ballot (section 10 (3)(c). Where the ballot was held on more than one day, the date of the ballot was treated as being the last of those days (section 10(5). Finally, a valid ballot needed to comply with a list of requirements contained in section 11. Section 11 (1) carefully defined the electorate as all those members it is reasonable for the union at the time of the ballot to believe will be called upon to take strike or other industrial action. No other persons were to be allowed to vote in the ballot (s.11 (1) (b)). The section also covered the balloting process. Section 11 (3) required that the manner of voting must be by the marking of a ballot paper; a show of hands at a branch meeting was not acceptable. The Act provided that the member must be given the opportunity to vote by post or at the workplace (section 11(6)). The ballot had to be conducted in secret (section 11(7)), members had to be allowed to vote without interference or constraint from the union (section 11(5)) and without incurring any direct costs to themselves (section 11(5).

Section 11 (4) related to the wording of the ballot paper itself, which was to be drafted so as to encourage members to vote against industrial action, the so called ‘industrial health warning’. The question required members to indicate whether they were prepared to take part in industrial action involving a breach of their employment contracts. Aside from having to obtain a ‘yes or no’ answer, the union was able to phrase the question how it pleased and the words ‘breach of contract’ did not need to appear on the ballot paper, though the union had to make clear that the action would constitute such a breach.

Further changes in the law on industrial action balloting were subsequently made in the EA 1988. Firstly, it introduced the right for a union member to restrain his/her union legally from unlawfully calling industrial action (section 1). Secondly, the form and content of the ballot paper were to be subject to more detailed regulation. In particular section 11 of the TUA 1984 was amended (schedule 3(8)(c). The ballot paper had to contain the following prescribed statement which could not be qualified or commented upon by anything elsewhere on the ballot paper:

Third, the 1988 Act required industrial action to be supported by a majority in a separate ballot in each separate workplace (section 17). The 1988 Act also made it ‘unjustifiable’ for unions to discipline members for refusing to take part in industrial action (section 3). The courts were empowered to award up to £30,000 to a union member for such infringements (section 5(8)).

The EA 1990 included an array of provisions designed to curb industrial action: removing immunity for all forms of secondary action (section 4); widening the range of persons who could render a union liable in tort for unofficial action (section 6); tightening the requirements for repudiation of unofficial action, which could enable unions to escape liability section 6(5); permitting employers to dismiss selectively employees taking part in union action (section 9) and widening the extent to which a union could be vicariously liable for the acts of any groups, including an official of the union (section 6(3)). This raised the possibility that industrial action organised by a group acting outside the constitution of the union, but including an official of the union, could be held to be the action of the union.

The Conservatives were particularly concerned with the problem of unofficial industrial action. The predominant view of the then Conservative government was that taking unofficial action did not necessarily reflect the breakdown within trade unions of internal authority. They believed that although a strike might not be authorised by a union, it might nevertheless be in a union’s interests. With little supporting evidence, they claimed that there had been cases where trade unions turned a blind eye to or had secretly encouraged unofficial action.

TURERA 1993 introduced further amendments to the law pertaining to industrial action ballots, requiring all industrial action ballots to be fully postal, rather than workplace (section 17); requiring the appointment of an independent scrutineer to oversee industrial action ballots (section 20); an obligation on a union to give written notice to each employer being balloted (section 21); and giving individuals the right to bring ‘cease and desist’ applications, seeking an injunction to restrain unlawful industrial action which would affect the supply of goods or services to that individual (section 22). This cause of action would apply even if the members themselves for whom the democratic rule was introduced had no complaint. The Conservatives were convinced that if unions faced the prospect of unlimited fines and sequestration of their assets for contempt if injunctions were flouted, this would discourage them from engaging in militant trade-union activity. The intent was to make union bureaucrats reluctant to step beyond the immunities and risk financial damage to the union Dunn and Metcalf.²

The Conservative interest in the issue of accountability reflected their desire to facilitate greater openness in the relationship between trade unions and their members. They suggested (again with little supporting evidence) that trade unions could take action against union members or make decisions affecting them without appropriate account being taken of their own wishes. The view depicted was one of irresponsible leaders flouting the interests of their members. This was because union rule-books did not provide members with extensive rights. The objective was to introduce mechanisms to make trade unions directly accountable to members. To this end, the following provisions pertaining to accountability were introduced.

First, the TUA 1984 s. 18 gave a member a statutory right to insist that an employer cease operating the ‘check off’ in relation to that part of the member’s union dues which was attributable to the political levy. The Conservatives regarded this provision as necessary because the existing system of ‘check off’ deprived the member of his/her opportunity to decide, each time the political fund contribution became due whether to refuse to pay it.³ It was common practice for trade unions to collect membership contributions by ‘check off’.⁴ ‘Check off’ means that membership dues were deducted by the employer from the member’s pay. Many employers, for the sake of convenience, deducted both ordinary contributions and the political levy from all members, leaving the union to reimburse exempt members for the latter.

The effect of the provision is that trade unions cannot deny lawfully membership to, or expel from membership, individuals whose views are diametrically opposed to those of the membership as a whole. This runs counter to the dictum of Lord Diplock in Cheall V Apex [1983] IRLR 215, who affirmed that ‘freedom of association can only be mutual; there can be no right of an individual to associate with other individuals who are not willing to associate with him’. Under the present law, an individual is accorded the choice of whether to associate with those whose aspirations he or she does not share; the remainder collectively has no such choice. Although, ultimately unions cannot be forced under statute to retain dissidents in membership, the price of exclusion or expulsion can be a severe one.

The statutory rights relating to membership and discipline demonstrated the primacy given to the individual rights of members over the collective interests of trade unions. The measures serve, by design or not, to subvert unions’ organisational coherence and capacity.⁵ Collective organization and power are the essential features that distinguish a trade union. The statutory rights have the potential to cause tension between trade unions and their members and between members and members.

The EA 1988 Act also sought to give individual members greater rights over the use of trade-union funds. The Conservatives observed that union rule-books generally provided for the normal conduct of the union’s affairs, and this often placed control of union funds exclusively in the hands of senior trade-union officials. Several provisions were introduced to tighten the controls over how senior officials could apply union funds; three, in particular, merit mentioning. First, s.6 gave trade-union members the right to inspect current accounting records, and to be accompanied by professional advisers. Second, s.8 limited the circumstances in which officials could be indemnified by the union in respect of damages awarded or fines imposed upon them as individuals. Finally, s.9 placed a statutory duty on trustees not to apply union funds for any unlawful purpose and to keep members informed about their union’s financial affairs.

The Conservatives wanted to develop a potent mixture of personal and procedural rights that members could enforce against trade unions. They wanted to provide as many avenues as possible for trade-union members to challenge the decision-making processes of their union. TURERA 1993 introduced a series of rights in relation to union membership. Section 14 gives a union member the right not to be excluded or expelled from a trade-union, except in specific circumstances. There are now only four situations in which exclusion or expulsion is permitted:

1. If the individual does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union;
2. If the individual does not qualify, or no longer qualifies, for membership of the union because it operates only in a particular part or parts of Great Britain.
3. In the case of a union whose purpose is the regulation of relations between its members and a particular employer or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers, or;
4. The exclusion or expulsion is entirely attributable to his conduct. An individual who under the union rules ceases automatically to be a member on the occurrence of a specified event is treated as having been expelled. Thus loss of membership on non-payment of subscriptions will be treated as an expulsion.

Section 15 made changes to the check-off arrangements introduced by the TUA 1984. The 1993 Act required that every three years union members must give written consent to their employers if they wish them to continue to deduct union membership fees from their pay via the check-off arrangement. The then Conservative government believed that individual union members should have the right to decide for themselves whether or not to pay their union subscriptions - including any special levies which might be collected through their subscriptions - by deductions from their pay.⁶ Section 16 extended the actions for which union members had the right not to be unjustifiably disciplined to include:

1. failing to agree, or withdrawing agreement, to the making from his wages (in accordance with arrangements between his employer and the union) of deductions representing payments to the union in respect of his membership;
2. resigning or proposing to resign from the union or from another union, becoming or proposing to become a member of another union, refusing to become a member of another union, or being a member of another union;
3. working with, or proposing to work with, individuals who are not members of the union or who or are not members of another union;
4. working for, or proposing to work for, an employer who employs or has employed individuals who are not members of that or another union or who are members of another union or;
5. requiring the union to do an act which the union is, by any provision of TULRCA 1992, required to do on the requisition of a member.

The government perceived these amendments to the law as being necessary for the protection of individual choice and freedom. Many trade-union officials regard s.14 as a deliberate attack on the Bridlington principles, devised by the TUC to avoid damaging inter-union disputes. The personal statutory rights accorded to members in the domain of membership and discipline has not resulted in significant numbers of cases being brought to employment tribunals. One reason for this is that trade unions altered their rule-books and complied with the specific legal requirements.⁷ This compliance was based on the belief that the law could not be circumvented. Individual members were considered more likely to bring complaints if their personal rights were infringed than if the union committed a breach of procedure, whether of rule or statute. Simpson (1993) suggested that the possibility of bounty hunters actively seeking rejection of membership applications in pursuit of the £5,000 minimum compensation award should not be discounted.⁸

It has been remarked that ‘the restrictions on a union’s authority over discipline and recruitment seeks to increase the heterogeneity of interests which they embody (both sectional and political), and hence reduce their coherence and ability to enforce collective interests and identity’.⁹ Offe and Wiesenthall (1980) observed that the developments were designed to delegitimise unions as collective organisation and subvert their capacity for strategic action.¹⁰ In this respect TURERA constituted another brick in the wall of the Conservative plan to diminish union power.

This element of the Conservative approach was deemed necessary because individual union members were not adequately protected form the coercive pressures exercised by trade unions.¹¹ It would not be enough to provide individual union members with proper and effective rights; more had to be done. Measures were necessary to ensure that any such rights were ‘fully developed so that they provide the ordinary member with the effective protection that he or she might reasonably expect’.¹²

Accordingly, it was proposed to give members new procedural rights to pursue grievances against their unions, where there was a breach of a union rule or statutory provision. The Conservatives sought to provide members with remedies and effective protection against what were viewed as real abuses. It was suggested that certain official bodies be given extensive powers to protect the rights of individual trade-union members. To this end the following legal provisions were introduced:

The TUA 1984 extended the functions of the Certification Officer, giving this official the responsibility of approving the ballot rules of a trade-union pertaining to political funds ballots (section 13), and the jurisdiction to receive and determine complaints that a trade- union failed to comply with one or more provisions relating to the secret ballots for the election of senior officials (section 5).

The EA 1988 s.19 established CROTUM, to assist any union member who was taking or contemplating taking legal action against his/her union or an official or trustee of his/her union in respect of certain breaches of statutory duties and/or breaches of union rule. This developments reflected a desire to provide an ombudsman/watchdog ‘with teeth and clout’ that would act in the interests of and on behalf of individual members. In other words, the Conservatives wanted CROTUM to encourage members to hold their unions accountable for their actions and protect the union member from unfair treatment or militant action.

Section 4 of the EA 1988 gave a trade-union member who claimed that they had been unjustifiably disciplined the right to complain to an employment tribunal.

The EA 1990 s.10 extended the role of CROTUM. The provisions were concerned with protecting union members against abuses of power by their union. Section 10 gave details of proceedings in respect of which the assistance of the Commissioner could be provided. The proceedings for which CROTUM could give assistance at this time all related to the enforcement of union members’ statutory rights and of statutory duties owed by unions to their members. The Act extended the role of CROTUM to enable assistance to be given in proceedings arising from complaints that union rule-book provisions had not been, or will not be observed. The Commissioner could provide assistance for actions in the High Court or Court of Session in Scotland. Section 11 enabled the Commissioner, at the discretion of the assisted person, to appear alongside the assisted person in the title of legal proceedings. The justification for this proposal was that it would give the assisted person an assurance that the Commissioner stood behind him/her in legal proceedings, and would increase the public awareness of the role of the Commissioner. In around seventy five per cent of cases the Commissioner’s name was added to the title of proceedings.¹³

TURERA 1993 contained two provisions relating to the protection of trade-union members’ legal rights. Section 10 expanded the role of the CO, despite critical comments being made in Parliament about the way the CO’s role involves administration, regulation, investigation and judicial-decision making. The 1993 Act impacted on the functions of the CO in two ways. Firstly, it extended his powers, particularly in relation to overseeing trade-union finances. Secondly, it placed new duties on trade unions in relation to matters on which members can lodge complaints for investigation. Powers were provided which enabled the CO to require a trade-union to produce documents relating to its financial affairs at such time and place as may be specified. Further provisions enabled the CO to appoint, in certain circumstances, inspectors to investigate the financial affairs of a particular trade-union and to make a report. TURERA 1993 also provides for additional information to be included in a trade union’s annual return and for members to receive a statement about the financial affairs of their trade-union. The CO must investigate any complaint made and decide it completely impartially, on the facts of the case and in the light of the representations made by the parties concerned.

Section 14 TURERA 1993 gave an individual member who claimed that he/she had been unfairly excluded or expelled from a trade-union the right to complain to an employment tribunal.

The desire to introduce a programme of measures giving the individual trade-union member rights, which could be enforced against trade unions, was predicated upon the mobilisation of dissident members to control unions from within.¹⁴ Trade union members could free themselves from the tyranny of the majority by making decisions about strikes and elections in the confines of their own home, protected from the ‘intimidation’ of mass meetings. Individual members were encouraged to complain about breaches of internal union government to the high Court, with the assistance of the Commissioner for the Rights of Trade Union members (CROTUM), or directly to the Certification Officer (CO). These irregularities could involve breaches of statute or rule. As a result of these initiatives, trade-union members had in potentia a much wider degree of control over their unions than previously existed under the common law, through the rule-book or through the application of the rules of natural justice. In this regard Conservative governments managed to add spoiling agencies to the anti-union legislative and policy agenda. That is to say, though independent, the presence and functions of the agencies maximised nuisance value by promoting individual against collective interests and freedoms.¹⁵ The extensive statutory rules on union government constituted a powerful weapon in the delegitmisation of unions since they presumed the prevalence of undemocratic tendencies and administrative malpractice within unions and the necessity or state intervention to eliminate them.¹⁶ The state and its agencies lay claim to be the guarantors of union democracy and accountability.¹⁷

The Conservatives advocated a model of trade-union democracy designed to vest individual members with new rights that could be enforced in new ways. They replaced a relatively non-interventionist approach to trade-union internal affairs with a highly restrictive approach, one that significantly limited union autonomy. The scheme of regulating internal trade-union affairs has subsequently been adopted by New Labour, subject to only minor modifications.

Prior to the implementation of the TUA 1984 and the EA 1988 there had been a rudimentary level of legal intervention in the internal procedures of trade unions. This comprised two strands. First, the CO had a specific administrative function pertaining to trade unions. Second, union members had recourse to the courts if trade unions failed to obey the rule-book or the rules of natural justice.

The Conservative legislation created statutory rights that trade-union members could enforce against trade unions in the courts. The creation of CROTUM and the expansion in the regulatory role of the CO constituted a significant alteration to the degree to which the law could intervene in trade-union internal affairs. The statutory rights of discipline and membership struck at the heart of union disciplinary powers. The statutory rights could be argued to have had a significant impact because they have caused trade unions to change their union rule-books to reflect the statutory requirements.¹⁸ . In particular, the right not to be unjustifiably disciplined is an expansive right, covering all disciplinary action, not just expulsions or exclusions. Furthermore, ‘unjustifiable’ discipline is not synonymous with ‘unreasonable’ discipline. An employment tribunal is not required to evaluate the union’s justification for the action or the proportionality of the response or to examine the reasoning of the union. Thus, even if, on the facts of the case, the action is warranted and the penalty imposed appropriate, if the reason for the disciplinary action is not permitted by statute, it is unlawful.

The provisions pertaining to both membership and discipline have significantly reduced union freedom to determine their own internal affairs. The provisions have also undermined collective responsibility and union solidarity.¹⁹ Whilst the volume of litigation cannot reveal whether legislation is being observed or disregarded, if the volume is low it might mean that trade unions are abiding by the law. Alternatively, it might mean trade-union members are ignoring union transgressions. Nevertheless, as Dunn and Metcalf observe, legal cases provide a valuable jumping-off point.²⁰

Trade unions are not calling for wholesale reform of the law pertaining to the internal regulation of trade-union affairs. However, they do advocate some reform of the statutory rights pertaining to membership and discipline. The common-law position was that trade unions could not be forced to associate with other individuals (Cheall v Apex.1983 IRLR 215). The introduction by the then Conservative government of legislation to enforce the right of every person to join a trade-union of their choice, and the right not to be expelled from a trade-union unless the exclusion or expulsion is expressly permitted by statute, changed this position. Here, it is contended that the UK is not acting in accordance with its European and international obligations.²¹ In Cheall v UK 1986 8 EHRR 74, the European Commission of Human Rights (now defunct) confirmed the House of Lords decision in Cheall v Apex 1983 (ibid).

The legislation ignores the trade unions’ internal democratic processes, where the dissident member is being disciplined for refusing to accept the collective decision of the majority resulting from a secret ballot to take industrial action for the benefit of the membership collectively. To permit non-association to this extent undermines the fundamental right of association of the trade-union membership and the ability of the association to protect their interests, as outlined in Art. 11(1).²²

Further, in respect to the right not to be unjustifiably disciplined, it has been held that this is incompatible with Article 3 of the ILO convention No 87 on Freedom of Association and Protection of the Right to Organise 1948.²³ The Social Rights Committee of the Council of Europe has considered the restrictions placed on trade unions in respect to exclusion, expulsion and unjustifiable discipline and stated, ‘the Committee is concerned about these provisions as they represent a substantial inroad into the freedom of trade unions to manage their own affairs. The situation is not in conformity with the European Social Charter’.²⁴

The Trades Union Congress has proposed that the law be changed so that unions should be free to decide their own admission and disciplinary rules. This should be subject only to general laws such as those against impermissible discrimination.

Despite the criticisms of the current law pertaining to membership and discipline, the Labour government has reaffirmed its commitment to retain the pre-1997 law. The Conservative legislation governing the internal affairs of trade unions will remain intact for the foreseeable future. New Labour rejects the suggestion that the law regulating trade unions should be completely liberalised to allow unions to regulate their own internal affairs. On this point the Labour government has remarked, ‘Unions are extremely important organisations that regulate, or strongly influence, the employment relationship between many millions of people and their employers. That sets them apart from other voluntary organisations’.

Whilst New Labour, predictably, is kinder towards trade unions than previous Conservative administrations have been, its commitment to retaining the pre-1997 law pertaining to the internal affairs of trade unions constitutes a disappointment for several trade unions, including the BFAWU, RMT and ASLEF.

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