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Are tougher strike laws the answer?

As the summer draws to a close, preparations are underway for the 143rd annual Trades Union Congress on 12 to 14 September.

In the run-up to the public sector strike over pension changes on 30 June, the government faced fresh calls to change the law by making it more difficult for employees and trade unions to organise and participate in industrial action. These included suggestions that it should increase the threshold of worker support for a strike ballot before a strike is considered lawful.

While not all of the unions who will be represented at the TUC support renewed industrial action this year, many have proposed motions strongly opposing any toughening of strike law. Instead they have asked the TUC General Council to take action to challenge the UK's detailed ballot rules and limited protection offered to workers by UK strike laws.

But would toughening strike laws actually lead to a reduction in industrial action?

A very simple question lies at the heart of industrial action legislation - where to draw the balance between an employee's right to withdraw his labour and the freedom of a company to run its business? Even a very subtle shift in the scales can have a significant impact, making it either much easier or harder to go on strike. The pendulum typically swings towards the employee and trade unions in countries which see very high levels of industrial action.

A series of legislative changes introduced by the UK Conservative government in the 1980s imposed ballot and other procedural formalities that must be satisfied for a strike to be lawfully organised. Compliance with these formalities affects both the trade union's immunity from action and the level of protection against dismissal afforded to striking employees. The principal purpose of introducing the ballot requirement was to test whether there was genuine support from the workforce for a call for industrial action as well as to allow employers to prepare for industrial action.

The UK already has some of the toughest strike legislation in the world and yet, although it can scarcely be described as a hotbed of industrial discontent, the UK is, statistically speaking, still relatively prone to strike action compared to other countries with less stringent industrial action regulations. The UK lost 23.8 working days through industrial action per 1,000 employees between 2005-2009 according to European Industrial Relations Observatory data, ranking behind France (132), Spain (60.4) and Italy (34.8). However, the UK ranks much higher than other countries such as Germany (6.2), the US (1) and Japan (1).

In France, in stark contrast to the UK, private sector employees need not give an employer any notice that they intend to strike. Nor do they need to indicate the likely duration of the strike or provide any minimum level of service. The only requirement is that the dispute underpinning the strike falls within one of the categories permitted by French law.

But the UK's detailed and complex procedural requirements for a workplace ballot are fairly unique.

In the US, strike action has declined since 2004. Although trade unions must give an employer a minimum period of notice to terminate existing collective bargaining agreements, there are few other procedural formalities to be completed before a strike can be convened. Notably, there is no requirement for the trade union to ballot members before going out on strike.

In Germany, where strike action is comparatively low, there is similarly no need for a workplace ballot to precede strike action although similar procedural requirements to those in the UK are in place. Trade unions must pass resolutions endorsing a strike and notify the employer. Each employee participating in the strike must also declare his willingness to do so (although an implicit declaration is acceptable). As in the UK, an employer can seek an injunction to restrain unlawful industrial action. German employers may have greater flexibility than in some other countries to minimise disruption to the business - they can shut down the business and hire temporary workers - but the overall picture is not so different from the UK.

In Japan, where a workplace ballot is required for industrial action to be lawful, the trend is towards achieving compromise. Unions are required to conduct collective bargaining before a strike can be convened and can only strike when either the company has refused the offer to negotiate or denied the requests made by the union at the collective bargaining.

The picture we have from the US, Germany and Japan suggests that the answer may not lie in legislating for systems and processes to regulate industrial action. The real driver behind strike action may be a more subtle combination of political, economic and cultural factors.

There have been suggestions that toughening UK strike laws could be counter-productive and potentially antagonistic. Tightening ballot requirements may result in an increase in wildcat unofficial action, for example.

While legislation which favours employers has reduced industrial action in some countries, those that err on the side of compromise and negotiation tend to be the most successful in minimising industrial action. The law is a key weapon in response to a strike threat. However, during a time of widespread cuts, it is in the Government's interests to carefully manage the delicate relationship between enterprise, employees and trade unions to minimise the potential of increased strike action.

Nick Squire, employment partner, and Elizabeth Graves, senior associate, in Freshfields Bruckhaus Deringer's employment, pensions and benefits team.