This section looks at how a union can discipline an individual.

Definition of discipline.

An individual has been disciplined by a union where one or more of the following penalties has been imposed on him:

• expulsion from the union or from any branch or section of it; or
• payment of a sum of money (for example, as a fine) to the union, any branch or section of it, or to any other person; or
• treatment of his union subscriptions, or any other payment he has made to the union or any branch or section of it, as unpaid or paid for a different purpose (e.g. to pay a fine); or
• deprivation (even if only temporarily or in limited circumstances) of any benefits, services or facilities which would otherwise be available to him as a member.

An individual will also have been disciplined if:

• another trade union, branch or section, is encouraged or advised not to accept him as a member; or
• he is subjected or any other detriment or disadvantage not listed above.

An individual is treated as having been disciplined by a union not only where the decision to impose the penalty was made in accordance with union rules but also where it was made:

• by an official of the union (for example, a member of the executive, a trustee, or an elected shop steward); or
• by a group which includes an official of the union.

When is discipline unjustifiable?

Not all union discipline is unjustifiable. What matters is the conduct for which the individual is disciplined.

The discipline will be unjustifiable only if the reason, or one of the reasons, for which it is imposed is conduct described in sections A to C below, or something that the union believes to be such conduct.

A - Strike or other industrial action

Discipline will be unjustifiable if it is for:

• failing to take part in or support any strike or other industrial action;
• showing opposition to, or lack of support for, any strike or other industrial action;
• failing to break, for any purpose connected with a strike or other industrial action, any obligation imposed by a contract of employment or by any other agreement between the individual and the person for whom he works;
• encouraging or assisting another person to honour his contract of employment or other agreement with his employer.

The most common examples of conduct for which individuals are protected against unjustifiable discipline are:

• going to work despite a call to take strike or other industrial action (the individual is protected whether or not there has been a ballot and whatever its outcome);
• crossing a picket line, including one mounted by the individual's own union at his own place of work;
• speaking out against a call to take strike or other industrial action;
• refusing to pay a levy to fund a strike or other industrial action, including one described as compulsory, or imposed under union rules.

B - Assertions.

Discipline will be unjustifiable if it is for:

• making an assertion that the union, any of its officials, any trustee, or anyone else representing the union has broken or is proposing to break any requirement imposed, or thought to be imposed, by the union's rules, by any other agreement or by the law;
• encouraging or assisting another person to make, defend or vindicate an assertion of the kind just described;
• consulting or seeking advice or assistance from the Certification Officer;
• consulting or seeking advice or assistance from any other person in connection with a matter which forms, or might form, the subject matter of an assertion of the type described in this Section.

The protection for making an assertion about a breach of union rules or of the law applies whether or not it has been made in the context of legal proceedings. Individuals will be protected against unjustifiable discipline, therefore, if an assertion is made, for example, during a union meeting or in a letter. Discipline will not be unjustifiable, however, if the assertion was false and the individual making it, or helping another to do so, believed the assertion to be false or otherwise acted in bad faith.

C - Further conduct for which discipline is unjustifiable.

The remaining grounds on which union discipline is unjustifiable are:

• refusing to comply with any penalty which has been imposed following disciplinary action which was itself unjustifiable;
• refusing to allow union subscriptions to be paid through the check-off;
• proposing to resign from the union, or joining or refusing to join or resigning from a different union;
• working or proposing to work with people who are not members of the union or who are or are not members of a different union;
• working or proposing to work for an employer who employs (or has employed) people who are not members of the union or who are or are not members of a different union;
• requiring the union to do anything which under employment legislation, it is obliged to do on the request of a member;
• proposing to do any of the things listed in sections A, B or C, or doing anything preparatory or incidental to doing any of those things.

Individuals will, therefore, be protected against further unjustifiable discipline if, for example, they refuse to pay a fine imposed on them for working during a strike. Also, any discipline for proposing, for example, to go to work during a dispute or to give evidence in good faith to help someone else defend an assertion will be unjustifiable.

Conduct which is partly protected an partly unprotected:

• Disciplinary action may not, however, be unjustifiable if it is for unprotected conduct which formed a part of conduct described above (and which therefore counts as protected). If the union can distinguish between the two parts and show that individuals would be disciplined for the unprotected part whether or not it took place in connection with the protected conduct, then discipline for the unprotected conduct will not be unjustifiable.

For example, a member who made an assertion in good faith that a union had broken its own rules would be protected against unjustifiable discipline, because that is conduct listed above. However, if he made his assertion in a way not permitted by those rules - for example by acting in a disruptive way at a union meeting - and the union could show that individuals who acted in that way were always disciplined, then disciplinary action for disruptiveness would not be unjustifiable.

Disciplinary action for making the assertion itself, however, would be unjustifiable, even if members had previously always been disciplined for making assertions.

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