Injunctions as a Legal Weapon in Collective Industrial Disputes in Britain, 2005–2014
| Published date | 01 March 2017 |
| Date | 01 March 2017 |
| DOI | http://doi.org/10.1111/bjir.12187 |
British Journal of Industrial Relations doi: 10.1111/bjir.12187
55:1 March 2017 0007–1080 pp. 187–214
Injunctions as a Legal Weapon in
Collective Industrial Disputes
in Britain, 2005–2014
Gregor Gall
Abstract
This article examines the frequency, nature and outcomes of employers seeking
injunctions against strikes and industrial action mounted by unions between
2005 and 2014. The number of actual and threatened applications continues
to be relatively high compared with the previous period when strike levels were
significantly higher, with employers continuing to gainoverwhelmingly successful
outcomes. Yet, usage is increasinglyconcentrated in a small number of industrial
sectors, suggesting the notion of ‘strike eectiveness’ provides the best means
by which to explain their relative frequency and presence. Comparative analysis
with Ireland highlights the specificity of the nature of British legal regulation of
employers seeking injunctive relief.
1. Introduction
The regulation of industrial action in Britain, especially through employer
applications for injunctions to prevent and end strikes, has become an
increasingly political ‘hot potato’. For labour, it has been claimed new
interpretations of legislation, made during adjudications for injunctions, have
greatly lessened unions’ ability to organize lawful action. In the March
2011 edition of its magazine, the Rail, Maritime and Transport (RMT)
union’s general secretary, Bob Crow, claimed had an injunction won by
Serco not been overturned on appeal, it ‘would have more or less completely
banned the right to strike’. For capital, calls have been made from bodies
such as the Confederation of British Industry (CBI) to raise thresholds for
lawful mandates for industrial action because, it argued, too many strikes
proceed with insucient membership ballot support. Acting upon its 2015
election manifesto, in the form of the Trade Union Bill, the Conservative
Party has proposed new thresholds for strike mandates, comprising (i)
a minimum voting turnout of half of eligible members, and (ii) at least
Gregor Gall is Professor of Industrial Relations,School of Management, University of Bradford
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2016 John Wiley& Sons Ltd/London School of Economics. Published by John Wiley & Sons Ltd,
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188 British Journal of Industrial Relations
40 per cent of all those entitled to vote voting for action in health, education,
fire and transport, meaning non-voters become ‘no’ voters. After receiving
Royal Assent on 4 May 2016, the Trade Union Bill became an Act of
Parliament with its implementation awaiting Commencement Orders. The
Trades Union Congress (press releases, 12 May 2015, 16 December 2015)
described these changes as making ‘legal strikes close to impossible’ and data
showing a 74 per cent decline in days ‘lost’ to strikes over the previous year
‘highlight[ed] once again the flimsiness of the government’s case’ while the
Institute of Employment Rights (Morning Star, 28 May 2015) believed that
they represented ‘an open invitation to employers and courts to interfere and
delay legitimate industrial disputes’. In this context, this article presents data
on the frequency and outcome of employer applications for injunctions, and
threats thereof, between 2005 and 2014,1and considers their outcomes and
sectoral and union distribution. While injunctions continue to be applied for
by employers, the relative frequency of doing so has declined in the period
under study. Yet, threats of applications have increased markedly. Then, the
notion of ‘strike eectiveness’ is used to explain why injunctions are still
applied for or threatened, especially within a narrow array of sectors and
situations.Finally, comparison with Irelandhighlights the specificity of British
regulation of employers seeking injunctive relief.
2. Legal regulation, industrial action and industrial relations
Traditionally, Britain’s industrial relations havecommonly been characterized
as voluntarist, comprising relativ e legalabstention, with primacy given to self-
regulating employment relations through collective bargaining. This system
ended over a period from the late-1960s onwards, with increased state
intervention regulating unions and their activities in order to weaken this
voluntarist socialized governance, and then provide individual legal rights
with the aim of re-establishing managerial control as a route to economic
eciency (as per neo-liberalism). This trajectory was not much altered by
Labour government (1997–2010) reforms. Although involving significant
rupture, further legislative regulation of industrial action introduced by
Conservative governments (1979–1997) was based upon making the legal
immunities aorded to unions in contemplation or furtherance of trade
disputes2– originally establishedin the Trade Disputes Act 1906 – increasingly
conditional and subject to higher penalties for transgressions. Consequently,
a key hallmark of the British system continues to be state provision for
private remedy by directly involved aggrieved parties, namely employers,
to seek injunctive relief to prevent or end industrial action. Applications
for injunctions are applications for interim relief, namely temporary orders
granted to compel unions to desist from organizing industrial action (strikes,
industrial action short of a strike (IASOS)) pending a full hearing of the legal
issues at a later date whenthe injunction can be confir med or rescinded. With
the interim injunction, the burden of proof is less onerous, merely focusing
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2016 John Wiley& Sons Ltd/London School of Economics.
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