Every so often, in the gaps between stories about COVID-19, the latest corruption and impunity scandal and Brexit, we get chunky headlines about how the court has stopped a nurses’ strike or allowed a nurses’ strike or a pilots’ strike or non-strike. Industrial disputes, especially when they risk inconveniencing a wider range of people than the usual players in the union/employer game, are good copy, though judging from the comments you can spot under the stories (especially the un-moderated ones) the game and its rules are sometimes not well understood by the spectators.
As usual, establishing some facts, properly defined, would be useful in getting a fuller, more understandable, picture in place.
To start with, the term ‘strike’ is somewhat over-used, shorthand if you will for ‘industrial action’. The classic misuse, fuelled by the agenda-driven Labour government of the time, is the one that refers to the doctors’ strike of the late Seventies. That which Mintoff’s regime so heavily crushed was not actually a strike, it was a partial, and pretty innocuous, industrial action but it was not permitted, in those enlightened days, to dare raise your voice, however timidly, against the Workers’ Government, especially since the only important union at the time (by their own lights, anyway) was part and parcel of the governing elite.
The human tragedies and difficulties that ensued after the government did what it needed to do to break the (non-) strike are well known and need not be revisited here. Suffice it to say that many families bore the brunt.
A strike, then, is an everybody-out (and I use the phrase pointedly) affair, while partial industrial action is just that: partial action short of withdrawal of labour, with measures designed to drive the unions’ point home.
At this juncture in our history, it is generally the non-GWU unions that indulge in this sort of thing, perhaps because it is when the country’s largest direct and indirect employer, the government, is involved that things get to the stage where action has to be taken.
We remain cursed (or blessed), due to not having been blessed (or cursed) with a reforming Maggie Thatcher, with an industrial relations environment that allows unions to do pretty much what they like, with relative impunity. This applies to employers and their ‘unions’ too, but the reality is that the capital side of the equation has other means by which to get its way, the worker side needs to be somewhat more direct.
So in the face of a union that has chosen to draw a line in the sand and give directives, or threaten to, for industrial action, employers, the Air Maltas and the Health Departments of this world, reach for their briefs and ask the courts to put a stop to it.
Sometimes, the boot is on the other foot and the unions head to the Courts of Justice to stop an offending employer from riding roughshod over the poor bloody workers. In fact, if my memory serves, the first use of a Prohibitory Injunction in an industrial dispute context was made by the GWU, when it sought to stop Telemalta from appointing a raft of Deputy General Managers or something like that. Serendipitously, the most recent use of an injunction was also made by the GWU in the Netent/Evolution Gaming dispute.
In the interim, however, the vast majority of cases involved employers, usually government-owned, trying to stop unions from going postal on them.
At this point, it may be useful to explain what an injunction does. The idea behind this instrument of law is, generally speaking, to give someone who might be going to suffer irreparable harm a way to stop the perpetrator from proceeding, at least until the legal ifs, buts and maybes have been resolved. There are a number of keywords there, ‘irreparable’ and ‘proceeding’ being the principal ones.
If the potential eventual harm can be remedied in a meaningful way by ex-post damages, then, the injunction should not, strictly speaking, be granted, though the courts have to establish whether monetary damages are a) a realistically recoverable prospect in the circumstances and b) a proper form of redress in any case. Not all damages are capable of remedy this way and not all defendants would be in a position to pay such damages in the real world.
The courts also have to establish, at least on a prima facie basis (on a cursory examination, if you like) that there is some form of right that should be protected.
A second strand to the argument as to whether an injunction should be granted is the debate on whether that which it is sought to prevent can in fact be stopped. Lawyers have finagled interesting ways of creating an on-going scenario even where unions may have already issued directives (what’s to stop if the directives are out, you might well ask) or where the employer concerned has taken the decision complained of, but the principle remains: you can’t stop something that has already been done.
It also needs to be borne in mind that an injunction is an interim measure, a place-holder if you will, that takes effect until such time as the dispute is resolved on its merits, whatever those merits are.
In other words, when you see a headline reading “Court Stops Dismissals” or “Court Stops Strike”, do bear in mind that the fun is actually yet to start.
Also, and this is something that court reporters don’t always have the time to underline, it is virtually obligatory on the courts to allow the injunction requested with immediate but provisional effect, pending a reply by the other side and a hearing and an eventual more substantial decree.
And even the more final decree (such as the one issued by Judge Mangion in the nurses’ injunction) is temporary in the sense that the merits of the case must then form part of a full-blown case. Or not, if the parties then see sense and get around a table to hammer out their differences, as has happened in every case I can remember where an injunction was finally granted in the context of an industrial dispute.
This of course is usually the whole point of the injunction in the first place. Except in a single case or two that I know of, where dismissal was stopped by the court in very particular, and I would say aberrant, circumstances, the full case that must procedurally follow an injunction did not ensue, because the dispute was settled by other means.
Except for the two cases lingering in the dark recesses of my memory, moreover, the courts have always thrown out applications for an injunction that seeks to prevent the employer from firing an individual, as in such cases the damages are statutorily remediable through ex-post proceedings, so there’s no actual legal basis for the injunction. Whether this reasoning will be brought to bear on the Netent case remains to be seen, and it is a work in progress, so any thoughts would be speculative.
Judge Mangion’s decree in the nurses’ case, which hit the news lately, is interesting and takes us further down the road to establishing some relevant case law. I am leaving aside the question as to whether essential services, such as medical services and others (power generation and public transport being examples) should be susceptible to the vagaries of industrial action.
The law is not particularly illuminating in this latter regard, mainly because legislating on industrial relations is very much the art of the possible, especially when union bosses issue rousing battle-cries on the “over my dead body” and “issa daqshekk” timbre.
What Judge Mangion did in the nurses’ case, though, broke new ground to a degree.
In its 45-page decree, much of which was dedicated to a summary of the law as it stands (for this reason alone, students of industrial law should download it) the court confirmed that unions do, indeed, have the right to take industrial action, a finding that cheered the MUMN no end, allowing them to strike a valiant pose and cry victory from the ramparts.
However, and that would have been written in capitals had I been prone to over-emphasis, the court did not restrict itself to this finding. If it had, it would have been less than noteworthy. Delving somewhat more deeply than heretofore into the aspect of irremediable harm needed in order to assess whether the injunction should be allowed, the court, as I understand it, measured the potential harm that could be caused to others, patients in this instance, against the harm to the interests of the union that might arise from the right to take action being proscribed or denied.
Instead of taking an all or nothing position that the summary nature of injunction proceedings usually makes necessary, the court went beyond the binary into the analogue continuum, and analysed each specific aspect of the directives and allowing or disallowing each one based on whether it would cause serious harm to patients.
It is to be noted that it was not the harm to the interests of the employer that was taken into account, so employers, in general, should not get the impression that they can argue this toss in the future. Not until the law is changed, anyway, and if I were them, I wouldn’t be holding my breath for that, not when the GWU has such a persuasive position in the greater scheme of things.
But nor was the decree a complete and unreserved seal of approval on the unions’ right to take action, for all the spin imparted by the MUMN on it.
We live in interesting times, indeed.