Industrial Action Ballots: an Analysis of the Development of Law and Practice in Britain
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INDUSTRIAL ACTION BALLOTS: AN ANALYSIS OF THE DEVELOPMENT OF LAW AND PRACTICE IN BRITAIN Submitted for the degree of PhD by Jane Rosemary Elgar London School of Economics January 1997 UMI Number: U109678 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U109678 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 F Table of Contents Page Abstract 5 Preface 6 Research topic Outline of chapters Methodology Chapter 1 The Industrial Relations Context 20 1.1 Industrial relations background 1.2 Changing patterns of industrial action 1.3 The ’strike problem’ and the role of industrial conflict legislation 1.4 An approach to understanding the impact of industrial action ballots Chapter 2 Historical Development of Law on Industrial Action Balloting 44 2.1 Introduction 2.2 The voluntarist tradition 2.3 Compulsory strike ballot policies and proposals 2.4 Enforcement mechanisms 2.5 Conclusions Chapter 3 The Law 65 3.1 Legislation 3.2 Enforcement provisions 3.3 Judicial interpretation of the balloting requirement 3.4 Conclusions Chapter 4 The Development of Government Policy on Ballots in the 1980s 100 4.1 Introduction 4.2 Balloting legislation: ideology or pragmatism 4.3 Development of policy on industrial action ballots in the 1980s 4.4 Encouraging employers to use the law 4.5 Conclusions 2 Chapter 5 Trade Unions and the Balloting Requirement 131 5.1 Introduction 5.2 The TUC’s response to legislative policies on balloting 5.3 Industrial action balloting: the historical context 5.4 The nature of trade union democracy 5.5 Analysis of the results of the research: changes in union rules 5.6 Analysis of the results of the trade union negotiators’ questionnaire 1991-2: changes in union practice 5.7 Industrial action balloting and trade union procedures 5.8 Balloting, unofficial action and local disputes 5.9 Accommodating the balloting requirement: reasons for balloting on industrial action 5.10 Wider use of balloting in consultation with members 5.11 Conclusions Chapter 6 Industrial Action Ballots: Employer and Trade Union Strategies in Disputes 176 6.1 Introduction 6.2 Industrial action ballots won and lost 6.3 Prescriptive nature of the balloting requirement and maintaining flexibility in negotiations 6.4 Ballots and trade union negotiating strategies 6.5 Employers’ use of the law 6.6 Explaining employers’ limited use of legal proceedings 6.7 Balloting and management negotiating strategies 6.8 Sanctions against individuals 6.9 Conclusions Chapter 7 Conclusions 217 7.1 Introduction 7.2 Overview of findings 7.3 Impact of the balloting requirement: implications for trade union practice 7.4 Impact of the balloting requirement: implications for the processes and outcomes of negotiations 7.5 Impact of the balloting requirement: incidence of industrial action 7.6 Concluding observations 3 List of tables 1.1 Respondents to the trade union negotiators’ questionnaire 17 1.2 Official strike statistics 1976-1995 31 5.1 Number of negotiating officers reporting industrial action ballots within the last three years 150 5.2 Number of strike ballots held in the previous three years 152 5.3 Methods of consulting with members about taking industrial action 157 5.4 Trade union negotiators responsible for organising industrial action ballots 159 5.5 Sources of advice on industrial action ballots 162 5.6 Use by negotiators of advice on industrial action balloting 163 5.7 Most important reasons for using ballots to consult members about industrial action 169 5.8 The use of ballots in consultation on pay offers 171 6.1 ACAS figures on the number of industrial action ballots ’won’ and ’lost’ in the 1980s 177 6.2 Yes and no votes in ballots held in the previous three years 179 6.3 Strike ballots in negotiations 189 6.4 Threats of legal action by employers in response to industrial action taken or seriously considered 197 6.5 Grounds for employers’ threats of legal action 198 6.6 Employers’ experience of industrial action ballots based on interviews in six sectors 207 6.7 General picture of the 1980s: employer and trade union responses compared 211 4 ABSTRACT This thesis explores the impact of one particular change in industrial conflict legislation in the 1980s: that is, the requirement for trade unions to hold ballots before industrial action. It does so by analysing the results of an extensive postal questionnaire survey, covering 846 negotiators in 25 unions. This was part of a wider research project on the impact of changes in the law, incorporating interviews with employers and senior National Officers of trade unions. The conclusions in the thesis also draw on these findings. The fieldwork was carried out in 1991 and 1992. It took into account a number of modifications - notably in 1988 and 1990 - to the original balloting provisions in the 1984 Trade Union Act. The thesis provides an analysis of the impact of the industrial action balloting requirement on trade union practices and the role of balloting in negotiations, looking beyond injunctions and high profile court cases. The thesis is primarily concerned to examine the impact of ballots on the processes of collective bargaining. It concludes that the effects of the 1984 balloting laws, including their amendments, were far more complex than anticipated or claimed by the Government. Internally industrial action ballots were accommodated by trade unions into existing consultation processes. The potential for ballots to modify substantive decisions within trade unions, by centralising and formalising decision making, was thereby limited. Amendments to the balloting laws increased the difficulties for trade union negotiators in accommodating ballots in the collective bargaining process. Trade union negotiators, however, sought by and large to conduct industrial action in accordance with the balloting laws and, despite an increasingly restrictive legal framework, there was a widespread perception among trade union negotiators in the early 1990s that this could bring negotiating advantage. Generally, it is apparent that industrial action ballots were one aspect of a complex process of sometimes radical change in industrial relations throughout the 1980s. 5 PREFACE Research topic The voluntarist tradition of labour law included those who argued that in the particular circumstances of British industrial relations the law could not, as well as should not, be used as a tool of reform. This related in particular to the reform of collective bargaining or regulation of the use of industrial action. Above all it was argued that the law should abstain from attempts to intervene for the purposes of reform in the internal affairs of trade unions. The autonomy of trade unions and the absence of legal regulation and restriction were key elements of the voluntarist analysis. This was not to argue, of course, that the law could not have other auxiliary purposes, including legislation to promote and extend collective bargaining and to provide certain individual rights both to those within and outside the collective bargaining process. In 1979 it was still possible to argue that voluntarism reflected the dominant trend within labour law. From the perspective of the early 1990s it could be argued that voluntarism has in many respects broken down, following more than a decade of legislative intervention which has sought - among other objectives - to regulate and restrict not only the use of industrial action, but also the internal affairs of trade unions. It is widely assumed by proponents of this argument that the view that the law could not be used for these purposes was mistaken. On closer examination, however, the experience post 1979 raises interesting questions of a broader nature about the impact of the law, which warrant further investigation of the relationship between labour law and industrial relations practice. The thesis will conduct such an investigation in the context of the introduction of compulsory ballots before official industrial action by the Trade Union Act of 1984. 6 The thesis explores the role of strike ballots1 in regulating the behaviour of trade unions, drawing on two main strands of research, which looked firstly at the way in which unions have adapted to a more restrictive legal framework and secondly at the ’use’ of the law by employers. Employers’ rights of enforcement of the strike ballot provisions of the 1984 Trade Union Act represented a radical shift from earlier proposals and policies on balloting. These had focused on the power of the state to call for a ballot in the context of emergency powers legislation and had rejected the wider use of balloting as a policy option. In 1984 the introduction of a mandatory requirement on trade unions to hold ballots before industrial action, therefore, was to completely change the nature of the balloting requirement. After 1984, trade union immunities from the common law of tort depended on official industrial action being preceded by a lawful ballot. The 1980s also saw wide-ranging legislation on secondary action and picketing which exposed industrial action outside certain narrowly defined boundaries to economic tort liabilities. Part II of the Trade Union Act should be placed within the context of this industrial conflict legislation, in terms of its intention to circumscribe trade unions’ freedom to organise, and work groups’ freedom to take part in, industrial action.