Trade disputes and industrial action
Most of the law on trade disputes and industrial action is contained in the Industrial Relations Act 1990. Under Section 8 of the Act a trade dispute “means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”. An industrial action is any action which may affect the terms of a contract which is taken by workers acting together to compel their employer “to accept or not to accept terms or conditions of or affecting employment.” Examples of industrial action include a work to rule, a picket, an overtime ban or a strike.
Employees have a constitutional right to join a trade union. It can be made a condition of employment that you must join a particular union upon accepting a job offer and remain in that union while you remain an employee in that job. There is a view that this may not be constitutional, but this has not been tested in the courts yet. If you are already in the job without being a union member and are at a later stage required to join a union by your employer, you can refuse, as such a requirement is unconstitutional.
Taking industrial action
In employment law there is no right to take industrial action but there are protections for certain workers who do this by, for example, going on strike. Part 2 of the Industrial Relations Act 1990 provides workers, who are taking part in peaceful industrial action, the following immunities from:
- Criminal or civil proceedings for conspiracy to do a particular act if the action taken by a person acting alone would not be punishable as a crime. Even if you are not a member of a trade union, you benefit from this immunity.
- Prosecution when taking part in peaceful picketing. Only members and officials of an authorised trade union get the benefit of this immunity
- Prosecution for inducements to break or threats to break contracts of employment. Again, only members and officials of an authorised trade union get the benefit of this immunity.
If you take part in industrial action such as a strike, there is a risk that you will be dismissed. However, under section 5 of the Unfair Dismissals Act 1977 the dismissal of an employee for taking part in a strike or other industrial action is unfair if:
- One or more of the other employees taking part in the action were not
- One or more of the other employees who were dismissed, were later reinstated or re-engaged and the employee was not.
This was amended by section 4 of the Unfair Dismissals (Amendment) Act 1993 which extends this definition of unfair dismissal to include less favourable treatment after reinstatement or re-engagement after a strike or a lockout.
Lockout is where an employer excludes the employees from work or suspends work or terminates their employment. In unfair dismissals legislation, a lockout is considered a dismissal. Again, under Section 5 of the Unfair Dismissals Act 1977, it is considered an unfair dismissal if an employee is not reinstated or re-engaged after a lockout and one or more of the other employees are.
Dismissal for trade union activity or membership is automatically unfair under Section 6 of the Unfair Dismissals Act 1977. An employee dismissed in such circumstances does not require any particular length of service in the job in order to enforce his/her rights. The definition of trade union activity is activity carried out with the employer’s consent or outside working hours. Strikes or other industrial action are not covered by this definition.
The Workplace Relations Commission’s Code of Practice on Victimisation refers to victimisation arising from an employee’s membership or non-membership, activity or non-activity for a trade union or a manager discharging their managerial functions or any other employees. It applies to situations where there are no negotiating arrangements and where collective bargaining has not taken place.
The term victimisation is used to describe unfair treatment of an employee (including a manager). It does not include dismissal – see ‘Unfair dismissal’ above. If you feel you have been victimised you can make a complaint to the Workplace Relations Commission under the Industrial Relations (Miscellaneous Provisions) Act 2004 using the online complaint form available on workplacerelations.ie.
Other employment issues
Pay: Under the Payment of Wages Act 1991, deductions from your pay by your employer are allowed when they arise due to your being on strike.
Minimum pay: In the calculation of hourly rate of pay, ‘working hours’ does not include time when you were on strike.
Redundancy: Time spent on strike does not break the continuity of service required to qualify for redundancy. However any time spent on strike during the last 3 years of your employment is non-reckonable when calculating the statutory redundancy payment.
Public holiday: You are not entitled to public holiday benefits if you have been absent from work immediately before the public holiday and your absence is due to a strike.
If you are on strike, you are not considered unemployed and are not entitled to Jobseeker's Benefit or Allowance. However you may qualify for credits for the duration of the strike. Your family may get Supplementary Welfare Allowance.
You won't normally be eligible for an Exceptional Needs Payment if you are involved in a trade dispute or on strike. However, a dependent adult or dependent child of a person on strike can apply.
If you are out of work as a result of a strike (for example, you have been laid off), you are in a different position. You may qualify for Jobseeker's Benefit if you are not participating in or directly interested in the trade dispute which caused the stoppage at work.