LEGAL BASIS
Before the Industrial Relations Act 1971 (IRA 1971), a collective agreement was held not to be legally enforceable due to a lack of intention to create legal relations (see Ford Motor Co Ltd v Amalgamated Union of Engineering and Foundry Workers [1969] 2 All ER 481, [1969] 1 WLR 339). By virtue of IRA 1971, s 34 the presumption became that such agreements were legally enforceable.
Now, however, the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA 1992), s 179 (previously the Trade Union and Labour Relations Act 1974 (TULRA 1974), s 18) enacts a conclusive presumption that they are not legally enforceable, unless fulfilling certain requirements.
Without TULCRA 1992, the dominant view is that a no-strike clause would not be regarded as incorporated into the contracts of individual workers concerned, as strikes and other industrial action are forms of collective action, and an agreement that there shall be no collective action properly belongs to that species of collective term which operates at the collective level, between employer and union.
Thus it would be inappropriate for inclusion in a contract of employment between employer and employee at the individual level. An individual worker is unable to promise that there will be no strike; for he cannot bind his fellow workers. An individual can merely promise that he will not participate in a strike and that is not incorporating the collective term.
TULCRA 1992 sets out special arrangements regarding the incorporation into a worker’s contract of what is commonly called a no-strike clause or agreement, a clause in a collective agreement whereby the union undertakes not to resort to industrial action without first exhausting agreed procedures. This is now enshrined in TULCRA 1992, as amended from TULRA 1974, ss 18(4) and 18(5), circumventing the debate about whether such agreements could have effect at common law which previously existed (see Rookes v Barnard [1964] 1 All ER 367, [1964] 2 WLR 269).
COLLECTIVE AGREEMENTS
TULCRA 1992 makes special provision in relation to any terms of a collective agreement “prohibiting or restricting the right of workers to engage in strike or other industrial action, or have the effect of prohibiting or restricting that right”. The clause will not, however, form part of any contract between a worker and employer unless five exacting conditions are satisfied (ss 180(1) and 180(2)):
- The collective agreement must be in
writing.
- The collective agreement must contain a provision that the no-strike clause will or may be incorporated into the individual contracts.
- The collective agreement must be made reasonably accessible to the worker concerned at his place of work and must be available for him to consult during working hours.
- The collective agreement must be made between an employer and an independent union or unions.
- Incorporation is not a given. It must be demonstrated that the worker did (expressly or impliedly) agree to incorporate the no-strike clause into his own contract.
A no-strike agreement must take the form of a collective agreement. However, a collective agreement does not normally constitute a contract between the employer and unions concerned but may establish the standard for the terms and conditions of employment for the workers covered.
A union negotiates as principal but not as agent for its members (see Holland v London Society of Compositors (1924) 40 TLR 440, Young v Canadian Northern Rly Co [1931] AC 83 and Lee v GEC Plessey Telecommunications [1993] IRLR 383). Consequently the collective agreement does not automatically bind or benefit an individual employee, even one who is a member of the union which negotiated the agreement. Some mechanism must operate whereby it can be said that the individual has agreed to the terms collectively bargained.
CONTRACTUAL INCORPORATION
Agreements dealing with broad policy or essentially collective matters such as no-strike clauses can lead to difficulties whereby not every kind of term in a collective agreement may be incorporated into an individual contract of employment. The terms of a collective agreement may sensibly be divided into those which are mainly collective in nature and which are therefore inappropriate for incorporation into the contract of an individual worker, and those which are individual in nature and which are capable of incorporation into his contract.
A no-strike agreement is, therefore by nature, a wider collective term, operating between the employer and the union, and therefore inappropriate for enforcement by or against an individual. But terms relating to pay, hours and holidays are more individual, and appropriate for incorporation. Mr Justice Hobhouse in Alexander v Standard Telephones and Cables Ltd (No 2) [1991] IRLR 286 encapsulated the distinction in a case dealing with redundancy procedures which were not intended to be incorporated into individual contract:
“The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. Insofar as intention is to be found in a written document, that document must be construed on ordinary contractual principles. Insofar as there is no such document, or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn.”
limited effectiveness?
The harsh reality is that while usefully providing a mechanism for the potential collective restriction of industrial action, the recent activities of the POA have highlighted that no-strike agreements may be of limited effectiveness on an individual basis. That being said, the existence of the no-strike agreement was relied on heavily by the Ministry of Justice in obtaining the injunction which led to the strike being called off and talks resuming with the POA.
Ultimately employers should be wary of over reliance on no-strike agreements and taking them at face value. The recent example of the POA suggests that employers may also have to consider the use of further litigation such as injunctions to enforce such agreements or clauses.
