Unions

Trade unions

A trade union is a group of employees who join together to maintain and improve their conditions of employment. Whilst trade unions have existed for centuries, membership levels have decreased significantly since their peak in the 1970s. Nevertheless, trade unions continue to have a special status in law which gives them and their membership certain protections in the employment context.

Whether an organisation meets the definition of a “trade union” is a question of fact. The burden of proof is on the organisation to demonstrate that it meets the criteria to bring it within the scope of the relevant legislation.

Where a trade union is recognised by an employer (see further below), the matters in which they may be concerned (subject to the scope/terms of the relevant recognition agreement) may include, for example, the negotiation of pay and working conditions, consultation regarding changes at work (including redundancies) and health and safety within the workplace.

Unions often also have a role representing individual members in connection with disciplinary and grievance matters and provide a source of advice as well as – where an individual wishes – acting as their statutory companion pursuant to the “right to be accompanied”. (See section on “Disciplinary & Grievance”.)

Most unions are structured as a network of local branches with representatives in each workplace, typically referred to as “union reps” who will liaise with the employer on behalf of the union’s members.

Isle of Man legal framework for trade unions

The principal legislation governing collective rights in the Isle of Man is the Trade Unions Act 1991, the Trade Disputes Act 1985 and the Trade Disputes (Regulation) Act 1936 plus associated secondary legislation.

Historically, the Isle of Man has not been an overly unionised jurisdiction and so there has been little appetite to reform the law in this area, unlike the UK. (Unions are present, though, including some branches or local chapters of UK organisations such as Unite and Prospect etc.)

Under Isle of Man law, employees have a statutory right to form and join, or not join, trade unions, and have protection from dismissal or detriment for various trade union-related reasons. There is no statutory obligation on employers to consult employees collectively on work-related issues, so unions can play an important part in ensuring employees’ views are considered and represented on decisions affecting them, their remuneration and their health and safety at work.

Registration of a union

Unless registered, no trade union or employer’s association can lawfully act in furtherance of its or their cause in the Isle of Man. An authorised official or any seven members of a union or association may make an application to the Registrar General for registration. Where a UK union applies for registration in the Isle of Man, they must also undertake to comply with orders, directions, injunctions and judgments of the Isle of Man courts.

There are certain reasons for which the Registrar General can refuse to register a union, including (but not limited to) where the purposes of the union or association are unlawful or the persons making the application appear to lack the necessary authority. The Registrar General can also reject an application which is not made in compliance with the statutory requirements.

The union or association must nominate a “registered official” who is resident in the Isle of Man. His or her name and address is then entered in an official register, along with an address in the Island for service of proceedings on the union or association.

Notwithstanding that a trade union is unincorporated, it is capable of making contracts. All property is vested in trustees on behalf of the union and the union can sue or be sued in its own name. Any judgment against the union is enforceable against property held in trust for the union.

Recognition of a union by the employer

Unlike the UK, there is no statutory mechanism that requires employers to recognise trade unions for bargaining purposes and any such recognition is “voluntary” through an official Code of Practice on the Recognition of Trade Unions 2001 (the “Code”). Whilst is it noted as “voluntary”, the Code details circumstances in which it is considered reasonable for an employer to recognise a trade union, including where a union can demonstrate conclusively that it has at least 50% of employees in membership.

Where a union is recognised, the matters on, and process by which, the employer informs and consults with the union will be established by agreement; unions have no specific rights or implied remit in relation to their dealings with employers. The recognition agreement will also, typically, specify the process for resolving disputes between the union and the employer.

Where there is a dispute between a union or association and an employer which is unresolved by a procedural agreement, a Manx Industrial Relations Officer (“IRO”) has the ability to inquire into the dispute and offer the parties assistance by way of conciliation, arbitration or other means, with a view to securing a settlement. If, notwithstanding this, a dispute remains incapable of resolution, an IRO may request the Council of Ministers to establish a Court of Inquiry to investigate the dispute, report on its findings and make recommendations for settlement.

Legal protections

Although industrial action, such as striking, would normally constitute a breach of the employment contract between the employee and the employer, Isle of Man law makes it unlawful to subject an employee to a detriment (eg withholding benefits, training or promotion) for taking part in “protected industrial action”. This is industrial action which is official (ie authorised by a registered trade union) and lawfully called by reference to the applicable statutory procedure.

In addition, a registered trade union and its officials are immune from criminal or civil liability (eg inducing a breach of contract) if the action is in contemplation or furtherance of a “trade dispute” as defined in the legislation. However, in order to benefit from immunity, trade unions must follow a specific procedure. This includes ensuring the rules for lawful ballots are followed, that the industrial action is supported by a majority of those voting in the ballot and making certain notifications to the employer and the Manx Industrial Relations Service.

The maximum award of damages which may be made against a trade union in proceedings for unlawful industrial action is presently capped at £10,000. The cap does not apply to any actions relating to personal injury or for breach of duty in connection with the ownership, occupation, possession, control or use of property.

Developments

Unlike the UK, the Isle of Man has no statutory provision for trade union recognition, though officials of trade unions recognised by an employer are also granted time off for trade union duties under the Employment Act 2006. As noted above, the Code sets out expectations and a process for recognition of a trade union or association in the workplace by an employer, albeit recognition is not mandatory.

The Code has not been updated since 2001. The Department for Enterprise has recently consulted on proposed changes to the Code which, whilst only minor, will likely be implemented in the near future.

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Useful resources:-

Current Code of Practice on the Recognition of Trade Unions 2001 https://www.gov.im/media/622307/2001sd0564.pdf