7. Who can sue

The law is intended to assist the employer (or a customer or supplier of the employer) to take legal action against trade unions, strike leaders and strikers. However, trade unions can also be sued by a member of the union and by the general public.

Legal action by the public

In addition to the employer and others who can sue, individuals (not a company) can seek an injunction against a union or an individual for calling, organising or encouraging unlawful industrial action (i.e. action outside the immunities) where a likely effect is to prevent or delay the supply of goods or services (or reduce their quality) to the individual: section 235A TULRCA. Such individuals, who do not have to show that they would have been entitled to be supplied with the goods or services in question, can be assisted by the Certification Officer.

This is designed in particular for unions in the public sector where industrial action may interfere with social services, hospital services, the fire service, railways and so on. But it will also apply in the private sector. The individual can sue even if s/he has no legal entitlement to the goods or services.

Legal action by dissident union members

There are two potential grounds for action brought against the union by a member. The first is to claim that the union is encouraging or supporting industrial action which is “unlawful” in the sense of being unprotected by immunity (usually on the grounds that it is not in contemplation or furtherance of a trade dispute, or is not preceded by a proper ballot, or involves unlawful acts other than a breach of contract of employment).

Such a claim will really only succeed if the dissident member can show that the union is spending its funds to support the action by for example, paying picketing expenses, hiring of coaches, printing of leaflets, dispute pay and so on. This is because every member has a legal “interest” in the union funds.

But the union will be fully protected against this sort of legal attack if it is within the immunity described above. If it is protected it can spend its money freely in support of the industrial action, so long as the union rules allow that expenditure. So if the employer or member of the public cannot sue the union because it has immunity, the dissident members cannot sue to stop the union spending its money on the dispute.

The second kind of legal action which dissident members can mount is to sue the union for breach of its rules. In the context of industrial action this could occur if, for example, the union rule book required a 75% majority in a ballot and this had not been fulfilled, or if the union had spent money in relation to the industrial action in a way which the rules did not permit.

There is one particular use of funds which is absolutely prohibited to unions (but not to anyone else). This is the payment of members’ fines (section 15 TULRCA). A union which does pay off a member’s fine will risk legal action by a dissident member. Please note that unions are not allowed to discipline workers who refuse to support industrial action.