COLLECTIVE LABOUR LAW

1. INTRODUCTION

Collective labour law is the organised relations between the employers and employees.
It focuses on relationships on a collective level: in other words a number of people are
acting together (collectively) to influence this relationship. This includes bargaining
between employers & trade unions; strikes & lock outs (negotiations).

2. BRIEF BACKGROUND

The development of trade unions in Zambia is derived from the experience of the
industrial relations in Britain but with minor modifications. When Copper industry
began to assume a sizable proportion in the 1920s after ten (10) years on a small
scale, African labour were recruited for simple and unskilled jobs while Europeans
were recruited for and did all skilled labour. As the struggle for independence grew
stronger not only in Zambia but in Africa as a whole and indeed worldwide, the British
labour government changed the legislation in order to facilitate the formation of
African Trade Unions. Formation of African trade unions however, came much later on
in the 1940s after a long struggle. In February 1948, the first branch of the African
Mineworkers Union came into being at Nkana Mine.

Zambia Congress of Trade Unions (ZCTU) is the dominant central trade union
federation in Zambia. ZCTU was founded in 1964. The ZCTU was created by the
government to replace the former United Trade Union Congress. It has 33 affiliated
unions.

After independence, the first Act dealing with this issue was the Industrial Relations
Act 1971. The subsequent Acts of 1990 and 1993 have retained the broad outlines of
the 1971 Act. What has been removed from the 1971 Act? Look at the following
aspects:

a. The removal of the works council.

b. The continuity of the Zambia Congress of Trade Union under section 28.

1
c. The continuity of the Zambia Federation of Employers.

The only difference is that the two organisations no longer hold the position of being
the peak associations for the unions and the employers. The inferences to these
organisation as being peak has been eliminated. This was a major reversal from the
original principles in the Zambian Industrial Relations system in place since 1965. The
concession followed intense debates in 1991 as to what constraints should be placed
on freedom of association in the industrial sphere. The new innovation is the
establishment of the tripartite consultative labour council established under Part X S79
of the Industrial and labour relations Act Chapter 269 of the laws of Zambia. The main
purpose of the setting up the Council is to enhance social dialogue between the three
principal parties being: Government; Employers representatives; Employees
representative.

Trade unions were even more politically charged to bring in a multiparty democracy
in Zambia. The then ruling government UNIP, saw the this as a formidable enemy
politically and tried to weaken the movement by having the check-off system
cancelled, and it also tried to divide it. In 1990 UNIP National Council to repeal the
1971 Industrial Relations Act that compelled trade unions to affiliate to ZCTU.
However, in 1990/1991, the labour movement reached its peak in popularity and
supported the Movement for Multi-party Democracy (MMD) in the struggle to re-
introduce plural politics in Zambia.

Since collective labour law entails bargaining collectively, historically collective

bargaining is an accommodation between two warring parties the employers and the
employees. When the employees collect themselves into trade unions to confront an
employer and usurp their interests better because of the strength in numbers. These
two forces are always at loggerheads.

The terminology was invented in Britain and first used by a legal historian in 1891.
Although there was evidence of by nascent traders it is basically a product of industrial
revolution. Major trade unions developed in the wake of the industrial revolution.
There were laws which reflection the pre-industrial revolution days. From 1824
workers became free to form trade unions with the repeal of Anti Combination

2
Legislation. Nevertheless it was not until 1950 when trade unions acquired immunity
to be able to organise and form themselves and participate in collective bargaining.
Collective Bargaining in England developed outside legal framework. Essentially this
was because courts were hostile toward trade unions for a long time.

3. TRADE UNIONS

The field of industrial relations (also called labour relations) focuses at the
relationships between employers and employees or indeed the government. It is vital
to note that industrial relations are basically meant to enhance industrial harmony.

From Fillippo (1980)’s definition of a trade union which is “an organization of workers
formed to protect, promote and improve through collective action, the social,
economic and political interest of its members”,

4. FIVE (5) MAIN REASONS AND ACTIVITIES OF TRADE UNIONS

 Tribal Associations
 Industrial conflicts
 Political campaigns
 Foreign Labour movements
 British Labour Administration
5. THE ROLES OF TRADE UNIONS:

It is clear that the main objective of trade unions is to achieve the economic well-
being of its members by way of wages, working period and conditions. The following
are a summary of the roles of the trade unions:

Traditionally, the role of Trade Unions is to promote and protect the interest of
the employees (members). This is not confined to the term of employment only such
as wages, leave pay and conditions of services but also, the way in which
individuals are treated in such aspects of employment like redress for grievances,
discipline and redundancies. (CONDITIONS AND FAIR LABOUR
PRACTICES).

3
Trade unions also exist to let management or employers know that they will have from
time to time have to offer an alternative view on key issues affecting the
employees’ employment.

Trade unions secure through collective bargaining improved terms and

conditions of service to their members.

The other role of trade unions is to PROVIDE WHERE POSSIBLE, LEGAL OR

FINANCIAL ASSISTANCE to their members.

6. THE FUNCTIONS OF THE TRADE UNIONS:

The following are the main functions of the trade unions:

Power - to protect and support the individual(s) by providing a collective strength to

act as countervailing force to the employer and a pressure group within society.

Economic Regulation – to maximize the wages and conditions of employment to

the members within the framework of the law and contract of employment.

Job Regulation – to establish a joint rule making system which both protects the
members from arbitrary management actions and allows them to participate.

Member Services – in decision making within the organization for which they work;
to provide a range of benefits or services to the individual members in comparison
with others.

Social Change – to express the cohesion, aspiration or political ideology of their

membership in order to develop a society which reflects this view.

Self-Fulfilment – to provide a mechanism whereby, individuals may develop outside

the immediate confines of their jobs and participate in decision making process.

7. A CONSTITUTIONAL PROTECTION OF FREEDOM OF ASSOCIATION

Article 21 of the Constitution of Zambia, 1996 stipulates except with his own consent,
no person shall be hindered in the enjoyment of his freedom of assembly and

4
association, that is to say, his right to assemble freely and associate with other persons
and in particular to form or belong to any political party, trade union or other
association for the protection of his interests. This right is only limited where there is
need to protect the interests of the public and the rights or freedoms of others (keep
this in mind when studying the application of the Industrial Labour and Relations Act
CAP 269, strikes and essential employees).

8. FREEDOM OF ASSOCIATION UNDER INTERNATIONAL LAW

The International Labour Organisation (ILO) is the only tripartite United Nations
agency that brings together governments, employers and workers of 187 member
States, to set labour standards, develop policies and devise programmes promoting
decent work for all women and men. The unique tripartite structure of the ILO gives
an equal voice to workers, employers and governments to ensure that the views of
the social partners are closely reflected in labour standards and in shaping policies
and programmes. The main aims of the ILO are to promote rights at work, encourage
decent employment opportunities, enhance social protection and strengthen dialogue
on work-related issues.

ILO standards are characterised by two features, namely, 'universality' and

'flexibility'. This entails that conventions are established in such a way that they could
be applied universally to all states, but that they are flexible enough to be adapted to
and applied in all states irrespective of their level of development. Zambia has ratified
Freedom of Association and Right to Organise Convention 87 of 1948 and Right to
Organise and Collective Bargaining Convention 98 of 1949 in 1996.

Article 2 of the ILO's Freedom of Association and Right to Organise Convention 87 of

1948 provides that workers without distinction whatsoever have the right to establish
and, subject only to the rules of the organisation concerned, to join organisations of
their own choosing without previous authorisation. Article 3 provides that trade unions
and employers' organisations have the right to draw up their constitutions and rules,
to elect their representatives in full freedom, to organise their administration and
activities and to formulate their programmes. Moreover, article 3 also directs that

5
public authorities must refrain from any interference which would restrict this right or
impede the lawful exercise thereof.

Article 4 of the ILO's Right to Organise and Collective Bargaining Convention 98 of

1949 provides that measures appropriate to national conditions should be taken,
where necessary, to encourage and promote the full development and utilisation of
machinery for voluntary negotiation between employers or employers' organisations
and workers' organisations, with a view to the regulation of terms and conditions of
employment by means of collective agreements.

9. THE LEGISLATIVE FRAMEWORK OF FREEDOM OF ASSOCIATION

The Industrial Labour and Relations Act CAP 269 gives effect to the constitutional and
international right of freedom of association. This right is available for both the
employer and the employee. In terms of trade unions, this is extensively elaborated
in section 5.

9.1 Rights of employees in respect of trade union membership and its

activities

Section 5 states that all eligible employees have the right to take part in the formation
of a trade union and to be a member of a trade union. This is so, as long as it is within
the sector, trade, undertaking establishment or industry in which that employee is
engaged as per amendment by Act 8 of 2008. Further, employees have:

a. the right to take part in the activities of a trade union such as becoming an
officer of the trade union;
b. the right to obtain leave of absence from work in the exercise of the rights
provided for in paragraph;
c. the right not to be prevented, dismissed, penalised, victimised or discriminated
against or deterred from exercising the rights conferred on the employee under
the Act or any other law relating to employment;
d. the right not to do work normally done by an employee who is lawfully on
strike or who is locked out, unless such work constitutes an essential service,

6
 or if on request the employee voluntarily waives the right specified under this
Act.

It should be noted that the right to freedom of association also entails that an
employee can choose not to be a member of a trade union or relinquish membership.
The Industrial Relations Court elaborated more on freedom of association in the recent
case of Mbewe v Lumwana Co. Ltd. (IRC/SL/03/2018) [2018] ZMIC 292 (27 July
2018). It is highly vital that you read this case.

9.2 Procedure for remedies

Section 5 also provides relief in situations of dismissals or victimisation. Such an

employee can invoke administrative channels available in the work place. If
unavailable, the employee may, within 30 days lay a complaint before the Court. The
Court may, if it finds in favour of the complainant:

a. grant to the complainant damages or compensation for loss of employment;

b. make an order for re-employment or re-instatement;
c. make such other order as it may consider appropriate in the circumstances.

Pay critical attention to Zambia National Provident Fund Board v Musukwa

(1995) where there was no remedy of reinstatement. Critique the judgement.

10. APPLICATION OF CAP 269

In terms of section 2, the Act does not apply to the Zambia Defence Force, the
Zambia Police Force, the Zambia Prison Service, the Zambia Security Intelligence
Service, those in management and Judges, registrars of the court, magistrates and
local court justices. Should these employees be excluded from exercising their right?
See the advice the ILO Committee on Freedom of association gave to Zambia
regarding this. Revisit the constitutional limitations.

Apart from the above, only eligible employees can join trade unions. Section 3
defines “eligible employee any employee other than a member of the management

7
of an undertaking. Thus, once an employee becomes a member of management, he
or she is no longer an eligible employee (section 4). Where there is a disagreement
as to whether or not an employee is a member of management, either party to the
disagreement may refer the matter to the Commissioner for determination. Any party
aggrieved by the decision of the Commissioner may, within 14 days of such decision,
appeal to the Court.

11. REGISTRATION OF TRADE UNIONS

Section 7 provides that every trade union must be registered under this Act with the
Commissioner within six months from the date of formation. If the Commissioner
refuses to register a trade union, he/she must notify the trade union of such refusal
and the trade union must be dissolved within six months therefrom. According to
section 9, a body cannot not be registered as a trade union with the Commissioner
unless it has a membership of not less than one hundred persons. Thus, an
application to register as a trade union should be in the prescribed form signed by one
hundred supporters. It should also be accompanied by a copy of the constitution of
the proposed trade union and should submitted to the Commissioner for registration.
Moreover, notice of every application for registration as a trade union should
be published in three consecutive issues of the Gazette. Objections to the
registration of any body as a trade union are to be in writing and shall be lodged with
the Commissioner not later than ninety days of the last notice appearing in the
Gazette. The Commissioner may then register the union, after considering the
objections and on being satisfied that the body proposed to be registered as a trade
union has complied with the provisions of registration under the Act.

12. LEGAL PERSONALITY OF TRADE UNIONS

A trade union is not a body corporate and therefore can only sue or be sued through
its trustees according to the provisions of s 26 and 27 of the Industrial and Labour
Relations Act. All real and personal property belonging to a trade union vests in the
trustees of the union for the use and benefits of the trade union and the members.
Actions by and against trade unions are brought and defended by trustees of the union

8
or any other officers authorized to do so by the union’s constitution. The suit may be
civil or criminal concerning property, any right or claim of property of the trade union.

13. AMALGAMATION OF TRADE UNIONS

Section 15 of the Industrial and Labour Relations Act allows two or more trade unions,
in accordance with the provisions of their respective constitutions, to amalgamate as
one trade union. The resultant trade union is under obligation to be registered in
accordance with the provisions of the Act. Rights and liabilities of the two or more
unions merge are carried over to the new union with the result that any legal
proceedings in respect of any right or obligations of a trade union which has
amalgamated with another trade union may be commenced, continued if pending, by
or against, the trade union formed as a result of the amalgamation.

14. FEDERATION OF TRADE UNIONS

A federation of trade Union is an organization whose membership consists of

registered trade unions affiliated to such federations and whose principal objectives
are the promotion and regulation of relations between the trade unions affiliated to
the federations or between employees, their trade unions, employers and employers’
organizations.

Before 1997, the Zambian Congress of Trade Unions was the umbrella body for all
trade unions in Zambia. However, with the enactment of the Industrial and Labour
Relations (Amendment) Act No. 30 of 1997, the Zambian Congress of Trade Unions
was continued, and still is, in existence as an incorporate body. The Congress deemed
to be registered as a federation of trade unions under the Act. I other words, it is one
of the federations of trade unions in existence in Zambia.

15. DISSOLUTION OF TRADE UNIONS

The Acts makes provisions of voluntary dissolution of a trade union. When the
members of a union desire to dissolve the union voluntarily notice of the intention to
dissolve the union signed by the executive committee of the union together with a
copy of the resolution to dissolve the union must be sent to the Commissioner, with a

9
copy of the Federation of Trade Unions, if the trade union is affiliated to it. The
federation may comment on the intended dissolution of the union if he is satisfied that
the intended dissolution is in accordance with union’s constitution. Thereafter, the
Commissioner gives notice of the approval of dissolution to the trade union concerned
and to the Federation of Trade Unions, if the union is affiliated to it. The dissolution
becomes effective from the date of approval of such dissolution by the Commissioner.

Once a Trade Union is dissolved, the property of such trade union vests in the
liquidator appointed by the Commissioner. The liquidator has all the powers to
recover, realize and sell such property as a trustee in bankruptcy in relation to a
bankrupt’s property under the Bankruptcy Act. The liquidator winds up the affairs of
the trade union and after satisfying and providing for all the debts and liabilities of the
trade union, prepares a scheme for the application of its remaining assets of property
or proceeds among its former members of the dissolved union, or distribute the assets
or property or proceeds among its former members, as the commissioner may
determine. A liquidator is protected from any action or other proceeding in respect of
anything done or omitted to be done in good faith in the exercise or purported exercise
of his functions under the Act.

16. COLLECTIVE BARGAINING

Collective bargaining may be defined as a process of joint or co-determination through

negotiating by the bargaining unit of conditions or terms of employment. This means
that it is the carrying out of negotiation between the trade unions representing the
employees and the employer(s) or their representatives. Collective agreements usually
set out wage scales, working hours, training, health and safety, overtime, grievance
mechanisms and rights to participate in workplace or company affairs.

In terms of section 3 of the ILRA, “collective bargaining” means the carrying

on of negotiations by an appropriate bargaining unit for the purpose of
concluding a collective agreement;

10
If parties are in agreement, the process of collective bargaining invariably results in a
collective agreement. On the other hand, a collective dispute exists in the event
that the parties fail to reach an agreement.

17. THE FUNCTION OF COLLECTIVE BARGAINING

The first and most important function of collective bargaining is maintenance of

industrial peace. The two sides are able to advance their interest through a peaceful
negotiations and keeping of peace.

Collective Bargaining facilitates joint regulations at the work place or labour

participation in management. When employers agree to negotiate with trade unions,
it entails that there are areas of management decision making which will not be done
unilaterally and only with consultation with trade unions. There are reciprocal
consultation sessions. However, there is consultation in which the employer asks
unilaterally but does not have to take that opinion. Essentially industrial democracy
becomes a fundamental aspect.

At a technical level, there are two important functions of collective agreements

1. Procedural function or contractual function which is the function of regulating

the relationship between trade unions and associations of employers;
2. The normative or the rule making function which consists of the terms and
conditions applicable to individual workers; the idea of the joint employment
relationship backed by certain kinds of sanctions.

Therefore, collective bargaining performs the role of law making. The social and legal
effect of a collective agreement is twofold:

(a) It is a peace treaty

(b) It is a law making treaty – it creates terms of employment.

18. REGISTRATION OF EMPLOYER

11
The fact that an employer should be a registered one, is a prerequisite for the start of
collective bargaining. An employer in terms of section 63 have at least twenty-five
(25) employees to register with the Commissioner of Labour as an employer.

19. RECOGNITION AGREEMENT

A recognition agreement is a prerequisite aspect that enables the unions to be

recognised as employee representatives by the employer. It is an agreement that
names the union or unions who have rights to represent and negotiate on behalf of
employees in that workplace. It will make clear whether a particular union has sole
negotiating rights for a bargaining group, or whether the employer recognises two or
more unions jointly.

Section 64 requires that a registered union and employer should enter into a
recognition agreement no later than 3 months. Failure to do so will be regarded as a
collective dispute. Why do you think this is so?

A formal recognition agreement provides a framework for industrial relations within

an organisation. It sets out the rules and procedures to be used by the union and the
employer in carrying out consultation, collective bargaining and representation.
Section 65 requires that such an agreement should be in writing and be signed by
both parties. Moreover, it should include the fact that the employer has recognised
the union as a representative and bargaining agent. Lastly, it should include rules
relating to grievances and the bargaining procedure.

20. THE BARGAINING PROCESS AND COLLECTIVE AGREEMENTS

Section 66 makes it mandatory for the bargaining unit to enter into collective
bargaining for the purpose of concluding a collective agreement within three
months from the date of the registration of the recognition agreement. A collective
agreement is a written contract between the employer and a union that outlines many
of the terms and conditions of employment for employees in a bargaining unit. The
terms and conditions are reached through collective bargaining between the employer
and the union.

12
Collective agreements will often contain a set of principles which are relevant to the
parties. A well drafted ‘principles and values’ section in a collective agreement should
reflect the organisation’s business plan and will aim to ensure that the parties co-
operate for mutual benefit. Employers will want to ensure that they retain the ability
to manage the business in a way that enables them to operate quickly and decisively
should the need arise. A trade union would wish to ensure that, whilst it is important
for any organisation to be able to operate quickly and decisively in business, this
should not be to the detriment of employees. It is in this section of the agreement
that the Company and the union would seek a commitment to resolve any differences
in a constructive manner with the objective of avoiding any industrial action, if at all
possible.

It is important for the parties to consider those issues which they are prepared to
consult about and those matters which will be a matter of negotiation for the parties.
In relation to those issues which the employer agrees to consult upon, these are likely
to address the organisation’s consultation obligations as set out in employment
statutes, for example, collective redundancy situations, business transfers, health and
safety issues and matters affecting pension schemes. An employer should also
consider entering into sensible consultation concerning changes to working practices
as a matter of good industrial relations.

Section 68 provides for the requirements for a valid collective agreement. In order to
be valid, every collective agreement must contain the following mandatory clauses
referred to as the statutory clauses: the date on which the agreement has come into
effect; the period for which it is to remain in force; and the methods, procedures and
rules for reviewing, amending, replacing or terminating the collective agreement. The
parties must lodge 5 copies to commissioner (section 70) who will lodge the agreement
to the Minister of Labour.

Before its repeal, the Industrial Labour Relations Act made provision for the legal
enforceability of a collective agreement by providing that a duly gazette collective
agreement was binding on the parties for the period during which it was in existence.
The 1997 Act did away with the need to gazette collective agreements negotiated and

13
once concluded by joint councils. However every collective agreement that has been
approved by the Minister is binding on the parties. Section 71 gives powers to the
Minister may accept or decline registration of the agreement if the requirements in
section 68 are not complied with. The agreement is then returned to the parties.
Further, section 71 extends the decline by the Minister, where there are reasons
outside the scope of the Act that justify the Minister’s decision. Look at the holdings
by the Industrial Relations Court and the Supreme Court in He Council of the University
of Zambia v University of Zambia and Allied Union Workers (2003) SCZ.

21. INCORPORATION OF THE COLLECTIVE TERMS

Where an employer recognises the union for collective bargaining purposes and there
is a collective agreement in force, when endeavouring to establish precise terms and
condition of employment governing that individual, it is important to have due regard
to the terms of any collective agreement as well as to the individual contract of
employment. This is so, irrespective of whether or not the collective agreement
between the employer and the union is legally enforceable. This is because a collective
agreement often contains the details of how negotiations between the employer and
the union will be conducted in respect of terms and conditions of employment for the
relevant employees.

In some cases the agreements will be incorporated into the individual’s contract
without the need for express agreement by the parties to the contract (employee and
employer). The legal status of collective agreements in Zambia is that, if the
agreement is procedurally correct and approved by the Minister, it constitutes a legally
binding contract between the parties and becomes a term of the contract of
employment. In Kamayoyo v Contract Haulage (1982) ZR 13, it was held that a
collective agreement is a legally binding contract between the parties and anything
done outside these contractual agreements are of no legal effect. In the case of
Pamodzi Hotel v Godwin Mbewe (1987) Z.R. 56 (S.C.) a collective agreement was
incorporated into the terms of the employment that bound both parties. The
agreement provided a penalty of dismissal after warning for a first breach for offences
related to drunkenness and summary dismissal without any need for a previous

14
warning for drunkenness. Revisit more case law on termination and dismissals to see
the effects of collective agreements.

Incorporation can occur in three ways:

• express incorporation;

• implied incorporation; and

• incorporation by way of agency.

21.1 Express incorporation

For a collectively bargained term to be expressly incorporated into an individual

contract of employment, there has to be some clear reference, either in the contract
of employment or the Collective Agreement, that specific collectively bargained terms
shall form part of an individual’s terms and conditions of employment.

On the face of it this would seem relatively straightforward but there are often
problems of interpretation.

The Court of Appeal in the case of Henry and Others v London General Transport
Services Limited 2002 IRLR 472, considered carefully the individual contract of
employment, the terms and conditions of employment and the effect of a collective
agreement.

London General Transport employed 1500 staff at different garages. The employers
and the recognised trade union, the Transport and General Workers Union entered
into negotiations relating to changes in terms and conditions of employment. These
negotiations resulted in a framework agreement which contained details of reduced
rates of pay and terms and conditions which were generally less favourable to the
work force. The union conducted a number of work place meetings and thereafter
informed the employers that the majority of the 1500 employees affected had
consented to the new terms. There was no ballot of employees despite the fact that
this was the previous practice on other occasions when negotiations had resulted in
contractual change. The Company then drew up notices outlining the changes in pay

15
and conditions and these were displayed at the various workplaces. Employees were
then asked to sign individual statements of changed terms and conditions of
employment. With effect from 5th November 1994 new terms and conditions came
into effect at the Stockwell Garage. This was the case even though a number of
employees had refused to sign statements accepting the new terms. The Company
received a petition signed by more than 130 of the staff at Stockwell two days later
expressing their dissatisfaction with the framework agreement, but employees
continued to work under protest. There was a further petition submitted at the
Stockwell Garage again by approximately 130 staff in December 1994 and the
workforce requested a ballot in respect of the new terms and conditions, but no ballot
was held.

Ultimately proceedings were commenced in the Employment Tribunal in November

1996 some two years later. The claim was an unlawful deduction from wages
application. In the first instance the Employment Tribunal upheld the complaint of the
employees. The Tribunal were of the view that, notwithstanding that there had been
a tradition of collective negotiation between the Company and the union, the
agreement that had been reached between the union and the Company dealt with
fundamental changes including a reduction in pay and it was insufficient to establish
that fundamental changes could be incorporated into individual contracts by virtue of
collective bargaining, notwithstanding the existence of the framework agreement. The
Tribunal was looking for ‘strict proof’ that employees had accepted the terms and
conditions. It appears that the Tribunal was looking for evidence of a ballot. No ballot
was conducted and the Tribunal was not satisfied with the framework agreement that
had been reached between the Company and the union.

The Employment Appeal Tribunal upheld an appeal against the decision by the
employers. The EAT concluded that the Tribunal was wrong to conclude, because the
changes envisaged by the employer were ‘fundamental’ i.e. they related to pay, that
it was necessary to demonstrate strict proof, by reference to custom and practice, that
employees had accepted the changes. The EAT also considered that the petitions in
themselves were not sufficient evidence that employees had not accepted the terms
and conditions of employment which, when one considers the size of the workforce

16
involved, this was probably the correct decision to have reached. The employees
thereafter appealed to the Court of Appeal and on 21st March 2002 the Court of Appeal
dismissed the appeal. The Employment

Tribunals were wrong in holding that the framework agreement that had been reached
was insufficient evidence of the custom and practice which was capable of affecting
fundamental change to the terms and conditions of employment. The Court of Appeal
accepted that it is necessary when establishing a custom and practice for there to be
clear evidence of practice and that any argument in support of custom and practice
should be properly scrutinised and tested.

However, the responsibility on an employer to demonstrate strict proof in these

circumstances is not required according to the Court of Appeal. When establishing
custom and practice it has to be more likely than not that a custom and practice exists
on the balance of probabilities. A further point considered by the Court of Appeal in
this case was the fact that the employees themselves had worked for two years under
the new terms and conditions, notwithstanding that they were maintaining that the
new terms and conditions had not been accepted and that they were working under
protest.

In this regard the employees relied on the petition. However, the very fact that the
employees had worked under the new rotas and terms of employment, as had all of
the other employees who had not signed the petition, was evidence that they had
accepted the revised terms.

21.2 Implied incorporation

In the absence of an express agreement, it is possible to infer agreement to

incorporate the appropriate collectively bargained term. The distinction between
express incorporation and implied incorporation is that express incorporation would
ordinarily require the individual employment contract to expressly state that certain of
its terms are regulated by a collective agreement. Implied incorporation is where there
is a clear custom and practice that terms of collective agreements are incorporated
into individual contracts. In the case of Henry and Others v London General Transport

17
Services Limited [2002] EWCA 488 it is in effect a combination of express and implied
incorporation. In that case, it was a framework agreement expressly agreed between
the Company and the union which intended to vary the terms and conditions of
employment of the work force. The union took the framework agreement to
employees and indicated thereafter that the majority of employees had accepted the
terms of the framework agreement. As stated above, the Court of Appeal was satisfied
that the union had authority to bind the employees to the terms of the framework
agreement and were satisfied that the union’s word that a majority of the employees
had accepted the terms of the framework agreement was sufficient. The Tribunal
therefore took this view irrespective of the fact that the terms of the framework
agreement had not been signed or expressly accepted by individual employees.

21.3 Incorporation by way of agency

Under the laws of agency, for a union member to be bound by an agreement entered
into by a union, the union must have authority to negotiate on the member’s behalf.
This can be actual or ostensible authority, once again express or implied. Implied
authority is that which is inferred from the conduct of the parties and the
circumstances of the case. In the case of Harris v Richard Lawson Autologistics Ltd
2002 [IRLR] 476, the Company and the union entered into a Closed Shop Agreement
covering employees of a Depot where Mr Harris was employed.

Clause 5 of the Agreement under the heading of ‘Recognition’ dealt with the position
of the Shop Steward. It stated ‘…the Company will recognise the Shop Steward and
the Deputy Steward, formally elected by the members of the Depot, as the official
representatives of the union. The Stewards agree to act in a responsible manner and
confine themselves to specific issues relating to the welfare of their members’. There
was an agreement reached between the Company and the Shop Steward in 1996 to
resolve problems over holiday pay. Mr Harris was a lorry driver employed by the
Company and in 1997 he volunteered for redundancy.

His holiday pay was calculated by reference to the 1996 Agreement between the
Company and the Shop Steward. He contended that this Agreement was not binding
and that he was entitled to be paid in accordance with earlier agreements which would

18
have meant that he would have received a further £4,290 by way of additional holiday
pay. There was an issue before the County Court as to whether or not a Shop Steward
had actual or ostensible authority to sign the 1996 Agreement and bind the drivers.
Judge Poulton dismissed the claim on the grounds that the Agreement was ‘well within’
the Shop Stewards implied or ostensible authority. This point was presented to the
Court of Appeal but the appeal was rejected and the Court of Appeal supported the
view of the County Court Judge. They agreed that the Shop Steward had apparent or
ostensible authority to negotiate revised terms of employment and, as a result, the
terms of the agreement negotiated by the Shop Steward applied to Mr Harris’ holiday
pay entitlement.

19