Striking the correct note
...a trade dispute means a dispute between employers and workers, or between workers and workers, which is connected with any one or more of a number of specific matters.
The aftermath of the actions taken last week following the withdrawal of the services offered by owners and drivers of hearses, public buses, mini-buses and taxis will have a taste of bitterness for a long time to come. That bitterness will go beyond the anger by a large chunk of the public at the chaotic way things developed for a number of days. It will be reflected in legal confrontations in our local courts.
This was signalled very strongly over the weekend, when various associations instituted legal action against the Transport Federation, which ordered the withdrawal of its members' services, after the government stood firm by its intention to liberalise the hearse market, with more liberalisation to follow.
As a matter of fact I was surprised at the absence of any legal discussion during the days of chaos, when the word "strike" was being bandied about. Colloquially, strike is the term whereby we all understand that someone is to stop working, or to withdraw his services. Legally, it may be another matter, since it posits the requirement of a trade dispute, and thereby the whole machinery set out in the Industrial Relations Act regarding trade unions, employers' associations, trade disputes, industrial action, voluntary settlements and such like.
The Act spells out these factors. Among other things it says that a trade dispute means a dispute between employers and workers, or between workers and workers, which is connected with any one or more of a number of specific matters. These include terms and conditions of employment; engagement or non-engagement or termination or suspension of employment or duties of employment of one or more workers; allocation of work or the duties of employment; matters of discipline; facilities for officials of trade unions; machinery for negotiation and consultation.
In this context, the definition of "employment" in the Act could be very relevant in the treatment of the cases brought before the Courts. It says that in relation to a trade dispute, employment includes any relationship whereby one person does work or performs a service for another person.
The structure and role of trade unions will also feature in the forthcoming legal treatment. Under the Industrial Relations Act the term trade union has a specific meaning - a trade union is an organisation consisting wholly or mainly of workers and of which the principal purpose is by its rules the regulation of relations between workers and employers or employers' associations.
Worker is defined as an individual who works or normally works under a contract of employment, or under any contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his.
The Act says that no action in tort or quasi-tort shall lie in respect of any act alleged to have been done by or on behalf of a trade union or an employers' association against the union or association in its own name, or against any members, officers of the union or association. However, the Act lays down that this shall not affect the liability of a trade union or of an employers' association to be sued in respect of actions that do not arise from any act done in contemplation of furtherance of a trade dispute. These include negligence or breach of duty.
In the case of a registered trade union or employers' association, the Act is clear on what acts done by a person in contemplation or furtherance of a trade dispute, once it is established that such a dispute exists, do not break the law.
These include breaking a contract of employment; threatening that a contract of employment will be broken.
The Act provides for peaceful picketing. It says that it shall be lawful for one or more persons in contemplation or furtherance of a trade dispute to attend at or near a place where another person works or carries on business; any other place where another person happens to be, not being a place where he resides, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.
The legislators anticipated that there could be cases where not everybody is inclined to stick to the rules, and might take the law into his own hands. The Industrial Relations Act, therefore, is also very clear in prohibiting the use of threats or violence for the purpose of compelling any other person to abstain from doing any act which such other person has a legal right to do or abstain from doing. Anyone found guilty under this clause is liable, on conviction, to imprisonment or a fine or both.
In all probability the legal treatment of charges and counter-charges regarding last week's eruption will range beyond the provisions of the Industrial Relations Act. The various claims for damages already put forward make that clear. Nevertheless, beyond the legalities of it all, which had best be left to the professionals to treat in full, the question will linger about last week's test case to the efficacy of the Act.
Last week the mood of those who withdrew their transport services to the public was as ugly as could be. There was deep reluctance, almost an impossibility to listen to reason. The call for calm and reason came from all political quarters, in the context of a very broad political consensus that liberalisation had to come about, not only because of EU directives, but in particular for the consumer to benefit from keener competition.
Notwithstanding the evident suspension of rationality, it might have been worthwhile to spell out where the "strikers" lay in the context of the Industrial Relations Act.
The incidents of violence, physical threats to and even manhandling of those who were willing to offer an emergency or an alternative transport service certainly go outside the scope of the Industrial Relations Act, which also specifically prohibits them.
But it might have helped some of the participants in the withdrawal of transport service to think it over had there been clear public pronouncements about their rights as workers, however defined.
It is one thing to fear increased competition through liberalisation, and another to try to manoeuvre to stop it coming or postpone it for as long as can be. It is another thing to believe that you have a right to do so by any means.
This was signalled very strongly over the weekend, when various associations instituted legal action against the Transport Federation, which ordered the withdrawal of its members' services, after the government stood firm by its intention to liberalise the hearse market, with more liberalisation to follow.
As a matter of fact I was surprised at the absence of any legal discussion during the days of chaos, when the word "strike" was being bandied about. Colloquially, strike is the term whereby we all understand that someone is to stop working, or to withdraw his services. Legally, it may be another matter, since it posits the requirement of a trade dispute, and thereby the whole machinery set out in the Industrial Relations Act regarding trade unions, employers' associations, trade disputes, industrial action, voluntary settlements and such like.
The Act spells out these factors. Among other things it says that a trade dispute means a dispute between employers and workers, or between workers and workers, which is connected with any one or more of a number of specific matters. These include terms and conditions of employment; engagement or non-engagement or termination or suspension of employment or duties of employment of one or more workers; allocation of work or the duties of employment; matters of discipline; facilities for officials of trade unions; machinery for negotiation and consultation.
In this context, the definition of "employment" in the Act could be very relevant in the treatment of the cases brought before the Courts. It says that in relation to a trade dispute, employment includes any relationship whereby one person does work or performs a service for another person.
The structure and role of trade unions will also feature in the forthcoming legal treatment. Under the Industrial Relations Act the term trade union has a specific meaning - a trade union is an organisation consisting wholly or mainly of workers and of which the principal purpose is by its rules the regulation of relations between workers and employers or employers' associations.
Worker is defined as an individual who works or normally works under a contract of employment, or under any contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his.
The Act says that no action in tort or quasi-tort shall lie in respect of any act alleged to have been done by or on behalf of a trade union or an employers' association against the union or association in its own name, or against any members, officers of the union or association. However, the Act lays down that this shall not affect the liability of a trade union or of an employers' association to be sued in respect of actions that do not arise from any act done in contemplation of furtherance of a trade dispute. These include negligence or breach of duty.
In the case of a registered trade union or employers' association, the Act is clear on what acts done by a person in contemplation or furtherance of a trade dispute, once it is established that such a dispute exists, do not break the law.
These include breaking a contract of employment; threatening that a contract of employment will be broken.
The Act provides for peaceful picketing. It says that it shall be lawful for one or more persons in contemplation or furtherance of a trade dispute to attend at or near a place where another person works or carries on business; any other place where another person happens to be, not being a place where he resides, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.
The legislators anticipated that there could be cases where not everybody is inclined to stick to the rules, and might take the law into his own hands. The Industrial Relations Act, therefore, is also very clear in prohibiting the use of threats or violence for the purpose of compelling any other person to abstain from doing any act which such other person has a legal right to do or abstain from doing. Anyone found guilty under this clause is liable, on conviction, to imprisonment or a fine or both.
In all probability the legal treatment of charges and counter-charges regarding last week's eruption will range beyond the provisions of the Industrial Relations Act. The various claims for damages already put forward make that clear. Nevertheless, beyond the legalities of it all, which had best be left to the professionals to treat in full, the question will linger about last week's test case to the efficacy of the Act.
Last week the mood of those who withdrew their transport services to the public was as ugly as could be. There was deep reluctance, almost an impossibility to listen to reason. The call for calm and reason came from all political quarters, in the context of a very broad political consensus that liberalisation had to come about, not only because of EU directives, but in particular for the consumer to benefit from keener competition.
Notwithstanding the evident suspension of rationality, it might have been worthwhile to spell out where the "strikers" lay in the context of the Industrial Relations Act.
The incidents of violence, physical threats to and even manhandling of those who were willing to offer an emergency or an alternative transport service certainly go outside the scope of the Industrial Relations Act, which also specifically prohibits them.
But it might have helped some of the participants in the withdrawal of transport service to think it over had there been clear public pronouncements about their rights as workers, however defined.
It is one thing to fear increased competition through liberalisation, and another to try to manoeuvre to stop it coming or postpone it for as long as can be. It is another thing to believe that you have a right to do so by any means.