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CODE
OF PRACTICE
PICKETING
PL928 (1st Revision)
Section A
1. The purpose of this Code is to provide practical guidance on picketing
in trade disputes for those:
2. There is no legal "right to picket" as such, but attendance for
the purpose of peaceful picketing has long been recognised to be a lawful
activity. However, the law imposes certain limits on how, where, and for what
purpose such picketing can be undertaken. These limits help ensure proper
protection for those who may be affected by picketing - including those who wish
to cross a picket line and go to work.
3. It is a
civil
wrong, actionable in the civil courts, to persuade someone
to break his contract of employment, or to secure the breaking of a commercial
contract. But the law exempts from this liability those acting in contemplation
or furtherance of a trade dispute, including - in certain circumstances -
pickets themselves.
4. This exemption is provided by means of special "statutory
immunities" to prevent liability arising to such
civil law
proceedings.
These immunities - which are explained in more detail in Section B of this Code
- have the effect that trade unions and individuals can, in certain
circumstances, organise or conduct a picket without fear of being successfully
sued in the courts. However, this protection applies only to acts of inducing
breach, or interference with the performance, of contracts, or threatening to do
either of these things.
5. These "statutory immunities" afford no protection for a picket,
anyone involved in activities associated with picketing, or anyone organising a
picket who commits some other kind of civil wrong - such as trespass or nuisance1. Nor do they protect anyone - whether a picket, an employee who decides to take
industrial action or to break his contract of employment because he is persuaded
to do so by a picket, or anyone else - from the consequences which may follow if
they choose to take industrial action or break their contracts of employment.
These could include, for example, loss of wages, or other disciplinary action or
dismissal from employment.
6. The criminal
law applies to pickets just as it applies to everyone else.
No picket, person involved in activities associated with picketing, or person
organising a picket, has any exemption from the provisions of the criminal law
as this applies, for example, to prevent obstruction, preserve public order, or
regulate assemblies or demonstrations.
7. This Code outlines aspects of the law on picketing - although it is, of
course for the courts and industrial tribunals to interpret and apply the law in
particular cases. Sections B and C, respectively, outline provisions of the
civil and criminal law and, where relevant, give guidance on good practice.
Section D describes the role of the police in enforcing the law. Sections E, F
and G also give guidance on good practice in relation to the conduct of
particular aspects of picketing and certain activities associated with
picketing.
8. The Code itself imposes no legal obligations and failure to observe
it does not by itself render anyone liable to proceedings. But statute law
provides that any provisions of the Code are to be admissible in evidence and
taken into account in proceedings before any court, industrial tribunal or
Central Arbitration Committee where they consider them relevant.
Section B
Picketing
and the Civil Law
9. The law sets out the basic rules which must be observed if picketing is to be
carried out, or organised, lawfully. To keep to these rules, attendance for the
purpose of picketing may only:
(i) be undertaken in contemplation or
furtherance of a trade dispute;
(ii) be carried out by a person attending at or
near his own place of work; a trade union official, in addition to attending at
or near his own place work, may also attend at or near the place of work of a
member of his trade union whom he is accompanying on the picket line and whom he
represents
Furthermore, the only purpose involved must
be peacefully to obtain or communicate information, or peacefully to persuade a
person to work or not to work.
10. Picketing commonly involves persuading workers to break, or interfere
with the performance of, their contracts of employment by not going into work.
Picketing can also disrupt the business of the employer who is being picketed by
interfering with the performance of commercial contract which the employer has
with a customer or supplier. If pickets follow the rules outlined in paragraph
9, however, they may have the protection against civil proceedings afforded by
the "statutory immunities". These rules, and immunities, are explained
more fully in paragraphs 11 to 30 below.
In
contemplation or furtherance of a trade dispute
11. Picketing
is lawful only if it is carried out in contemplation or furtherance of a
"trade dispute". A "trade dispute" is defined in law so as
to cover the matters which normally occasion disputes between employers and
workers - such as terms and conditions of employment, the allocation of work,
matters of discipline, trade union recognition.
"Secondary"
action
12. The "statutory immunities" do not apply to protect a threat of,
or a call for or other inducement of "secondary" industrial action.
The law defines "secondary" action - which is sometimes referred to as
"sympathy" or "solidarity" action - as that by workers whose
employer is not a party to the trade dispute to which the action relates.
13. However, a worker employed by a party to a trade dispute, picketing at his
own place of work may try to persuade another worker, not employed by that
employer to break, or interfere with the performance of, the second worker's
contract of employment, and/or to interfere with the performance of a commercial
contract. This could happen, for example, if a picket persuaded a lorry driver
employed by another employer not to cross the picket line and deliver goods to
be supplied, under a commercial contract, to the employer in dispute. Such an
act by a picket would be an unlawful inducement to take secondary action unless
provision was made to the contrary.
14. Accordingly, the law contains provisions which make it lawful for a
peaceful picket, at the picket's own place of work, to seek to persuade workers
other than those employed by the picket's own employer not to work, or not to
work normally. To have such protection, the peaceful picketing must be done:
a.
by a worker employed by the employer who is party to the dispute2 ; or
b. by a
trade union official whose attendance is lawful (see paragraphs 22 - 23 below).
15. Where an entrance or exit is used jointly by the workers of more than one
employer, the workers who are not involved in the dispute to which a picket
relates should not be interfered with by picketing activities. Particular care
should be taken to ensure that picketing does not involve calls for a breach, or
interference with the performance, of contracts by employees of the other
employer(s) who are not involved in the dispute. Observing the principle will
help avoid consequences which might otherwise be damaging and disruptive to good
industrial relations.
Attendance at or near a picket's own place of work
16.
It is lawful for a person to induce breach, or interference with the
performance, of a contract in the course of attendance for the purpose of
picketing only if he pickets at or near his own place of work.
17. The expression "at or near his own place of work" is not
further defined in statute law. The provisions mean that, except for those
covered by paragraphs 22 and 23 below, lawful picketing must be limited to
attendance at, or near, an entrance to or exit from the factory, site or office
at which the picket works. Picketing should be confined to a location, or
locations, as near as practicable to the place of work.
18. The law does not enable a picket to attend lawfully at an entrance to, or
exit from, any place of work other than his own. This applies even, for example,
if those working at the other place of work are employed by the same employer,
or are covered by the same collective bargaining arrangements as the picket.
19.
The law identifies two specific groups in respect of which particular
arrangements apply. These groups are:
- those (e.g. mobile workers) who work at
more than one place; and
- those for whom it is impracticable to picket at their
own place of work because of its location.
The law provides that it is lawful
for such workers to picket those premises of their employer from which they
work, or those from which their work is administered.
In
the case of lorry drivers, for example. this will usually mean, in practice,
the premises of their employer from which their vehicles operate.
20.
Special provisions also apply to people who are not in work, and who have
lost their jobs for reasons connected with the dispute which has occasioned the
picketing. This might arise, for example, where the dismissal of a group of
employees has led directly to the organisation of a picket, or where an employer
has dismissed employees because they refuse to work normally, and some or all of
those dismissed then wish to set up a picket.
In
such cases the law provides that
it is lawful for a worker to picket at his former place of work. This special
arrangement ceases to apply, however, to any worker who subsequently takes a job
at another place of work.
21.
The law does not protect anyone who pickets without permission on or
inside any part of premises which are private property. The law will not,
therefore protect pickets who trespass, or those who organise such trespass,
from being sued in the civil courts.
Trade union officials
22.
For the reasons described in Section F of this Code, it may be helpful to
the orderly organisation and conduct of picketing for a trade union official3
to
be present on a picket line where his members are picketing.
The law provides
that it is lawful for a trade union official to picket at any place of work
provided that:
(i)
he is accompanying members of his trade union who are picketing lawfully
at or near their own place of work; and
(ii) he personally represents those
members.
23.
If these conditions are satisfied, then a trade union official has the
same legal protection as other pickets who picket lawfully at or near their own
place of work.
However, the law provides that an official - whether a lay
official or an employee of the union - is regarded for this purpose as
representing only those members of his union whom he has been specifically
appointed or elected to represent. An official cannot, therefore, claim that he
represents a group of members simply because they belong to his trade union. He
must represent and be responsible for them in the normal course of his trade
union duties. For example, it is lawful for an official - such as shop steward -
who represents members at a particular place of work to be present on a picket
line where those members are picketing lawfully; for a branch official to be
present only where members of his branch are lawfully picketing; for a regional official to be present only where members of his region are
lawfully picketing; for a national official who represents a particular trade
group or section within the union, to be present wherever members of that trade
group or section are lawfully picketing;
and for a national official such as a general secretary or president who
represents the whole union to be present wherever any members of his union are
picketing lawfully.
Lawful purposes of picketing
24.
In no circumstances does a picket have power, under the law, to require
other people to stop, or to compel them to listen or to do what he asks them to
do. A person who decides to cross a picket line must be allowed to do so.
In
addition, the law provides a remedy for any union member who is disciplined by
his union because he has crossed a picket line4.
25.
The
only purposes of picketing declared lawful in statute are:
- peacefully
obtaining and communicating information: and
- peacefully
persuading a person to work or not to work.
26.
The law allows pickets to seek to explain their case to those entering or
leaving the picketed premises, and/or to ask them not to enter or leave the
premises where the dispute is taking place. This may be done by speaking to
people, or it may involve the distribution of leaflets or the carrying of
banners or placards putting the pickets' case.
In all cases, however, any such
activity must be carried out peacefully.
27.
The law protects peaceful communication and persuasion. It does not give
pickets, anyone organising or participating in any activity associated with
picketing, or anyone organising a picket, protection against civil proceedings
being brought against them for any conduct occurring during the picketing, or
associated activity, which amounts to a separate civil wrong such as:
- unlawful
threat or assault
- harassment (i.e. threatening or unreasonable behaviour causing
fear or apprehension to those in the vicinity);
- obstruction of a path, road,
entrance or exit to premises;
- interference (e.g. because of noise or crowds) in
the rights of those neighboring properties (i.e. private nuisance);
-
trespassing on
private property.
28. Both individual pickets, and
anyone - including a union - organising a
picket or associated activity, should be careful not to commit such civil
wrongs. It is possible, for example, that material on placards carried by
pickets - or, for that matter, by those involved in activities associated with
picketing - could be defamatory or amount to a threat or harassment. Pickets will
also have no legal protection if they do or say things, or make offensive
gestures at people, which amount to unlawful threat or harassment. Section C of
this Code explains that such actions may also give rise to prosecution under the
criminal law.
29. Similarly, if the noise or other disturbance caused to residents of an
area by pickets, or those associated with picketing activity, amounts to a civil
wrong, those involved or responsible are not protected by the law from
proceedings being brought against them.
30. Similar principles apply in respect of any breach of the criminal law by
pickets, or their organiser. As explained in Section C of this Code, a picket,
or anyone involved in an associated activity, who threatens or intimidates
someone, or obstructs an entrance to a workplace, or causes a breach of the
peace, commits a criminal offence. Where pickets commit a criminal offence, then
in many circumstances they will not be acting peacefully; consequently, any
immunity under the civil law will be lost.
Seeking redress
31. An employer, a worker, or anyone else who is party to a contract which
is, or may be, broken or interfered with by unlawful picketing has a civil law
remedy. He may apply to the court for an order5
preventing, or stopping, the
unlawful picketing, or its organisation. Such a person may also claim damages
from those responsible where activities of the unlawful picket have caused him
loss. An order can be sought against the person - which could include a
particular trade union or unions - on whose instructions or advice the unlawful
picketing is taking place, or will take place.
32. In making an order, the court has authority to require a trade union
which has acted unlawfully to take such steps as are considered necessary to
ensure that there is no further call for, or other organisation of, unlawful
picketing. An order may be granted by the court on an interim basis, pending a
full hearing of the case.
33. If a court order is made, it can apply not only to the person or union
named in the order, but to anyone else acting on his behalf or on his
instructions. Thus an organiser of unlawful picketing cannot avoid liability,
for example, merely by changing the people on the unlawful picket line from time
to time.
34. Similarly, anyone who is wronged in any other way by a picket can seek an
order from the court to get the unlawful act stopped or prevented, and/or for
damages. Thus, for example, if picketing, or associated activities, give rise to
unlawful disturbance to residents so affected can apply to the court for such an
order and/or for damages. Such proceedings might be taken against individual
pickets, or the person - including a union where applicable - responsible for the
unlawful act.
35. If a court order is not obeyed, or is ignored, those who sought it can go
back to court and ask to have those concerned declared in contempt of court.
Anyone who is found to be in contempt of court may face heavy fines, or other
penalties, which the court may consider appropriate. For example, a union may be
deprived of its assets through sequestration, where the union's funds are placed
in the control of a person appointed by the court who may, in particular, pay
any fines or legal costs arising from the court proceedings. Similarly, if a
person knows that such an order has been made against someone, or some union and
yet aids and abets that person to disobey or ignore the order, he may also be
found to be acting in contempt of court and liable to be punished by the court.
Determining whether a union is responsible
36. Pickets will usually attend a place of work for the purpose of persuading
others not to work, or not to work normally, and may thereby be inducing them to
breach, or interfere with the performance of, contracts. The law lays down rules
which determine whether a union will be held liable for any such acts of
inducement which are unlawful.
37. The
law provides that a union will be held responsible for such an unlawful act if
it is done, authorised or endorsed by:
a. the union's principle executive committee, president, or general secretary;
b. any person given power under the union's own rules to so, authorise or
endorse acts of the kind in question; or
c. any other committee of the union, or any official of the union6
including those who are employed by the union, and those who are employed by the
union, and those, like shop stewards, who are not7.
A union will be held
responsible for such an act by such a body or person regardless of any
provisions to the contrary in its own rules, or anything in any other contract
or rule of law.
38.
Pickets may, of course, commit civil wrongs other than inducing breach,
or interference with the performance, of contracts. The question of whether a
union will be held responsible for those wrongs will be determined according to
common law principles of liability, rather than by reference to the rules
described in paragraph 37 above.
The need for a ballot
39. If what is done in the course of picketing amounts to a call for
industrial action, and is an act for which the union is responsible in law, the
union can only have the protection of statutory immunity if it has first held a
properly-conducted secret ballot.
40.
The law requires that entitlement to vote in such a ballot must be given
to all the union's members who it is reasonable at the time of the ballot for
the union to believe will be called upon to take part in, or continue with, the
industrial action, and to no other member. The ballot must produce a majority of
those voting which is in favour of taking, or continuing with, industrial
action.
These, and other requirements of the law in respect of such ballots, are
restated in the statutory Code of Practice "Trade Union Ballots on
Industrial Action (1st Revision)".
[Note: This has now been replaced by the Code of Practice on "Industrial
Action Ballots and Notice to Employers"]
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