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Collective Labour Law - Gillian S;Archer,Timothy J Morris

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Collective labour law has recently been transformed. The Employment Relations Act 1999 introduced radical reforms, including a procedure for compulsory recognition of trade unions; additional protection for employees dismissed while taking part in industrial action; and changes to industrial action notices and ballots. The use of 'workforce agreements' to determine the scope of workers' rights has been extended and the European Works Councils Directive has been implemented in domestic law. The Human Rights Act 1998 also has important implications for collective labour law. This new book provides a fully comprehensive text which covers all areas of collective labour law, statutory and common law. Relevant international provisions are also highlighted, together with the jurisprudence of the European Court of Human Rights and other international bodies. Recent developments are examined in their thematic context, so enabling the reader to obtain an integrated analysis of areas such as statutory rights of representation and consultation, industrial action and union governance. Whilst this book is intended for specialist labour lawyers, its treatment of the subject will be accessible to those with no detailed prior knowledge. TABLE OF CONTENTS Table of cases - Table of legislation - Table of statutes - Table of codes of practice - Table of EU secondary legislation - Table of treaties 1 Collective Labour Law and Human Rights 2 The Legal Regulation of Trade Unions 3 Trade Unions and Employers 4 Trade Union Recognition and Collective Bargaining 5 Statutory Rights of Collective Representation and Consultation other than Collective Bargaining 6 Industrial Action Appendix 1 - 6

...an extremely valuable resource for all those concerned with collective labour law whether as legal academics or practitioners or from the perspective of other disciplines. Bob Simpson Industrial Law Journal September 2000 Collective Labour Law by Professor Gillian Morris and Tim Archer aims and succeeds in providing a detailed and integrated analysis of these recent developments as well as the pre-existing areas of common law and statute. Anthony Korn ELA Briefing July 2001 In short there is everything you want to know about a suject which has not received much literary attention, even in times of past industrial strife. It is excellent. It will be welcomed by all employment lawyers, students of employment law, HR managers; anyone who wants to understand the legal/workplace scene in the 21st century. Nick Fairclough, Solicitor Solicitors' Journal July 2001 The book is striking for the comprehensiveness of its legal analysis which is accompanied by extensive references to other sources for more detailed consideration of particular issues. It is without doubt an invaluable resource for academic scholars. An appreciation of the scope, structure and evolution of this body of law is an essential prerequisite for any meaningful appraisal for the changing role of the law in labour relations and Morris and Archer provide an up to date foundation for this endeavour. Bob Simpson Oxford Journal of Legal Studies February 2003

Table of Casesp. xv
Table of Legislationp. xliii
Table of Statutesp. lxxiii
Table of Codes of Practicep. lxxxi
Table of EU Secondary Legislationp. lxxxiii
Table of Treatiesp. lxxxv
Abbreviationsp. lxxxix
Collective Labour Law and Human Rightsp. 1
Introductionp. 1
The European Convention on Human Rights and Fundamental Freedomsp. 5
Overview and procedurep. 5
The ECHR and collective labour lawp. 10
The application of the ECHR in the sphere of employmentp. 17
Rights guaranteed by the ECHR and contractp. 23
Collective Labour Law and the Human Rights Act 1998p. 26
General principlesp. 26
Interpretation of legislationp. 27
Direct or collateral challenge against public authoritiesp. 30
Implications for actions between private partiesp. 34
Other International Standards Relevant to Collective Labour Lawp. 36
International Labour Organisation Conventionsp. 36
The European Social Charterp. 39
The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rightsp. 41
The Legal Regulation of Trade Unionsp. 43
Introductionp. 43
The Role of the Certification Officerp. 47
The Definition and Legal Classification of Trade Unionsp. 50
Sources and general principlesp. 50
The definition of a trade unionp. 51
Listed trade unionsp. 53
Independent trade unionsp. 54
The legal status of trade unionsp. 58
Returns and accountsp. 59
Common Law Regulationp. 65
Sources and general principlesp. 65
The judicial approach towards the contract of membershipp. 67
Trade union membership and disciplinep. 73
The right to control trade union governmentp. 76
Remedies for a breach or threatened breach of the contract of membershipp. 77
Trade union liability in negligencep. 81
Statutory Rights of Trade Union Membersp. 82
Sources and general principlesp. 82
Rights relating to trade union membership and disciplinep. 84
The right not to be excluded or expelled from a trade unionp. 84
The right not to be unjustifiably disciplinedp. 88
The right to resignp. 93
Rights not to be discriminated against in relation to trade union membership and the benefits of membershipp. 94
Miscellaneous rightsp. 95
Rights relating to the trade union's register of names and addressesp. 95
The right to inspect the trade union's accounting recordsp. 97
Trade Union Elections: The Statutory Requirementsp. 98
Sources and general principlesp. 98
The application and consequences of the duty to conduct electionsp. 99
The selection of candidates and election addressesp. 103
Independent scrutiny of electionsp. 106
The balloting constituency for electionsp. 109
The conduct of the electionp. 110
Remedies for breach of statutory requirementsp. 114
Political Activitiesp. 116
Sources and general principlesp. 116
Establishing and retaining a political fundp. 117
The definition of 'political objects'p. 119
Assets and liabilities of the political fundp. 121
The right of exemption from contributionp. 122
Remedies for breach of the political fund provisionsp. 123
Expiry of a political fundp. 124
Trade Unions and Employersp. 127
Introductionp. 127
The Right to Organisep. 130
Sources and general principlesp. 130
Protection against dismissal on grounds of trade union membership and activitiesp. 132
Entitlement and procedurep. 132
The scope of protectionp. 135
Remediesp. 145
Protection against subjection to a detriment short of dismissal on grounds of trade union membership and activitiesp. 146
Entitlement and the scope of protectionp. 146
Remediesp. 152
Refusal of access to employmentp. 154
The scope of protectionp. 154
Entitlement, procedure and remediesp. 156
Constraints on the compilation or disclosure of information relating to trade union membershipp. 158
The Right Not to Join a Trade Union: The Closed Shopp. 160
Sources and general principlesp. 160
Protection against dismissal on grounds of non-membershipp. 161
Protection against subjection to a detriment short of dismissal to compel trade union membershipp. 162
Refusal of access to employmentp. 163
Contract Compliancep. 164
Sources and general principlesp. 164
The Trade Union and Labour Relations (Consolidation) Act 1992p. 165
The Local Government Act 1988p. 166
Rights of Individual Trade Union Membersp. 168
Deduction of union subscriptions at source (the 'check-off')p. 168
Rights of trade unionists to time off workp. 170
Sources and general principlesp. 170
Trade union officials: rights to paid time offp. 171
Remedies if paid time off is refusedp. 177
Time off for trade union activitiesp. 178
Trade Union Recognition and Collective Bargainingp. 183
Introductionp. 183
Recognition of Trade Unionsp. 187
Sources and general principlesp. 187
The definition of recognitionp. 189
The statutory recognition procedure: overview and general principlesp. 191
The role and operation of the CACp. 194
The statutory recognition procedure: the procedure analysedp. 198
Structure and definitionsp. 199
The request to the employer for recognition: conditions of validityp. 200
The implications of the employer's response to the requestp. 203
Applying to the CAC: conditions of admissibility, and the implications if the CAC accepts an applicationp. 204
Determining the appropriate bargaining unitp. 212
The criteria and procedures for determining recognitionp. 214
Access to workers and campaigning during recognition ballotsp. 223
The consequences of recognitionp. 229
The effect of voluntary recognition pursuant to a request under the statutory procedurep. 234
Overview and definitionsp. 234
Restrictions on terminationp. 236
Provisions relating to the 'method' of collective bargainingp. 238
Changes affecting the bargaining unitp. 239
Overview and definitionsp. 239
Either party believes the bargaining unit is no longer appropriatep. 242
Employer believes unit has ceased to existp. 245
Position where the CAC decides the new bargaining unitp. 247
Residual workersp. 251
Derecognition of Trade Unionsp. 252
Sources and general principlesp. 252
The statutory derecognition procedure: overview and general principlesp. 255
Derecognition at the request of employers or workers: generalp. 256
Definitionsp. 256
Employer employs fewer workersp. 256
Employer's request to end arrangementsp. 260
Workers' application to end arrangementsp. 263
Derecognition where no ballot was held prior to recognitionp. 264
Derecognition where the recognised union is not independentp. 266
Workers' application to end bargaining arrangementsp. 267
Effect of loss of certificate of independence by a recognised unionp. 270
Protection Against Dismissal or Other Detriment for Acts Relating to the Recognition Procedurep. 270
Overviewp. 270
Protection against detrimentp. 271
Protection against dismissal of employeesp. 275
The Human Rights Act 1998 and Recognitionp. 277
Collective Bargaining and Collective Agreementsp. 280
Sources and general principlesp. 280
The duty to disclose informationp. 281
Collective agreementsp. 287
The function of collective agreementsp. 287
The legal status of collective agreementsp. 288
Collective agreements: protection against detriment and dismissalp. 291
Collective agreements and workforce agreements: working time and parental leavep. 293
The Effect of a Transfer of the Undertaking on Recognition and Collective Agreementsp. 295
Effect on recognitionp. 295
Effect on collective agreementsp. 296
Statutory Rights of Collective Representation and Consultation other than Collective Bargainingp. 299
Introductionp. 299
The Duty to Consult on Redundanciesp. 303
Sources and general principlesp. 303
Proposed dismissals covered by the duty to consultp. 305
The meaning of 'redundant'p. 305
Groups covered by the dutyp. 306
A minimum of 20 employees at one establishmentp. 307
When consultation must beginp. 310
The persons who must be consultedp. 313
The rights of appropriate representativesp. 320
What is meant by 'consultation'?p. 323
Remediesp. 325
Notification to the Department of Trade and Industryp. 331
The Duty to Consult on a Transfer of the Undertakingp. 333
Sources and general principlesp. 333
The persons who must be informed and consulted and their rightsp. 335
The duties to inform and to consult: scope and timingp. 336
Remediesp. 340
Health and Safetyp. 343
Sources and general principlesp. 343
Occupational Pensionsp. 348
Trainingp. 350
European Works Councilsp. 351
Sources and general principlesp. 351
Bodies concerned with the enforcement of the Regulationsp. 354
The meaning of 'employees' representatives'p. 355
The application of the Regulationsp. 356
Community-scale undertakings or Community-scale groups of undertakingsp. 356
The location of central managementp. 358
Minimum number of employeesp. 360
Establishing the number of employeesp. 361
The obligation to negotiate an agreement for a European Works Council (EWC) or Information and Consultation Procedure (ICP)p. 362
The establishment of a Special Negotiating Body (SNB)p. 364
The composition of an SNBp. 364
Arrangements for a ballotp. 365
The role of the independent ballot supervisorp. 367
Position where a consultative committee existsp. 370
European Works Councils (EWCs) and Information and Consultation Procedures (ICP)p. 372
The roles of management and the SNB and the options available to themp. 372
Content and scope of an EWC agreementp. 373
The 'statutory model' (or 'Subsidiary Requirements')p. 374
Failure to establish an EWC or ICP or comply with an agreement or the statutory modelp. 378
Confidential informationp. 379
Rights of individuals in relation to EWCs and ICPsp. 382
Rights to time offp. 382
Protection against dismissal and other detrimentp. 383
Situations where the Regulations do not apply wholly or in partp. 384
Transitional provisionsp. 386
Industrial Actionp. 389
Introductionp. 389
Liability for Industrial Actionp. 395
Liability in tortp. 395
Sources and general principlesp. 395
Inducing breach of contract or interfering with performance of a contract by unlawful meansp. 396
Liability for inducement to breach, or interference with, other legal rightsp. 401
Interference with trade or business by unlawful meansp. 403
Conspiracy to injure (or 'simple' conspiracy)p. 407
Conspiracy to commit an unlawful act or use unlawful meansp. 408
The statutory right of actionp. 409
When is a trade union liable in tort?p. 410
Sources and general principlesp. 410
Determining liability under statutep. 412
Liability at common lawp. 416
The Scope of Statutory Immunityp. 418
Sources and general principlesp. 418
Torts which are granted immunityp. 419
In contemplation or furtherance of a trade disputep. 420
The definition of a trade disputep. 420
'In contemplation or furtherance' of a trade disputep. 427
Exclusions from protection of the statutory immunitiesp. 430
Action relating to union membership and to recognition and collective consultationp. 430
Action in response to dismissal of participants in unofficial industrial actionp. 432
Secondary industrial actionp. 432
Industrial Action Ballots and Notice to Employersp. 435
Sources and general principlesp. 435
When must a ballot be held?p. 437
Independent scrutiny of ballotsp. 438
The balloting constituencyp. 440
The content of the voting paperp. 445
The conduct of the ballotp. 450
The independent scrutineer's reportp. 453
Information and notice to employersp. 454
Call by a specified personp. 461
The expiry date on the ballot mandatep. 463
The Code of Practice on Industrial Action Ballots and Notice to Employersp. 466
Civil Law Remediesp. 467
Injunctionsp. 467
Sources and general principlesp. 467
Applications for interim injunctions: the courts' approachp. 468
The forms and scope of interim injunctionsp. 479
Contempt of courtp. 481
Damagesp. 486
Sources and general principlesp. 486
Limits on damages against a trade unionp. 487
Restitutionp. 489
Sources and general principlesp. 489
Picketingp. 490
Civil liabilityp. 490
Sources and general principlesp. 490
The torts in outlinep. 492
The Protection from Harassment Act 1997p. 496
The scope of statutory immunityp. 497
Criminal liabilityp. 502
Sources and general principlesp. 502
The Trade Union and Labour Relations (Consolidation) Act 1992, s. 241p. 503
Highways Act 1980, s. 137p. 504
Obstructing a constable in the execution of his duty: the concept of a breach of the peacep. 505
The Public Order Act 1986 and the Protection from Harassment Act 1997p. 507
Picketing and the Human Rights Act 1998p. 508
Industrial Action and Contractual Rightsp. 510
Sources and general principlesp. 510
The effect on the individual contractp. 512
Strikesp. 512
Industrial action short of a strikep. 515
The effect of a 'no strike' agreementp. 517
Employer responses to industrial action in breach of contractp. 519
Dismissalp. 519
Damagesp. 520
Withholding payp. 521
Lock-outsp. 526
Industrial Action and Statutory Rightsp. 527
Sources and general principlesp. 527
Unfair dismissalp. 531
Where industrial action is not 'unofficial'p. 531
'Protected' industrial actionp. 543
Other automatically unfair reasons for dismissalp. 548
Where industrial action is 'unofficial'p. 549
Redundancy paymentsp. 553
Guarantee paymentsp. 555
Continuity of employmentp. 555
The Rights of Trade Union Membersp. 556
Sources and general principlesp. 556
Common law rightsp. 557
Statutory rightsp. 563
The right to a ballotp. 563
The right not to be unjustifiably disciplinedp. 564
Prohibition on indemnities for unlawful conductp. 567
Remedy against trustees for unlawful use of propertyp. 569
Definitionsp. 571
Time limits for Employment Tribunal claimsp. 581
List of Employment Tribunalsp. 583
List of offices of Advisory, Conciliation and Arbitration Service in England and Walesp. 587
List of other relevant officesp. 591
Recognition agreementp. 593
Bibliographyp. 597
Indexp. 611
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841131771
ISBN-10: 1841131776
Audience: BAC
Format: Paperback
Language: English
Number Of Pages: 710
Published: 30th August 2000
Country of Publication: GB
Dimensions (cm): 22.86 x 15.88  x 3.18
Weight (kg): 0.98
Edition Number: 1