![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Metrobus Ltd v Unite the Union [2009] EWCA Civ 829 (31 July 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/829.html Cite as: [2010] ICR 173, [2009] IRLR 851, [2009] EWCA Civ 829 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2010] ICR 173]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE KING
HQ08X03948
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE LLOYD
____________________
METROBUS LIMITED |
Claimant Respondent |
|
- and - |
||
UNITE THE UNION |
Defendant Appellant |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Charles Béar Q.C. and Paul Gott (instructed by Bircham Dyson Bell LLP)
for the Respondent
Hearing dates: 1 and 2 July 2009
____________________
Crown Copyright ©
Lord Justice Lloyd:
The facts in outline
The legislation
"(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or
(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.
…
(4) Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections "not protected" means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person."
"(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action—
(a) is not protected unless the industrial action has the support of a ballot, and
(b) where section 226A falls to be complied with in relation to the person's employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.
In this section "the relevant time", in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act.
(2) Industrial action shall be regarded as having the support of a ballot only if—
(a) the union has held a ballot in respect of the action—
(i) in relation to which the requirements of section 226B so far as applicable before and during the holding of the ballot were satisfied,
(ii) in relation to which the requirements of sections 227 to 231 were satisfied, and
(iii) in which the majority voting in the ballot answered "Yes" to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates;
(b) such of the requirements of the following sections as have fallen to be satisfied at the relevant time have been satisfied, namely—
(i) section 226B so far as applicable after the holding of the ballot, and
(ii) section 231B;
(bb) section 232A does not prevent the industrial action from being regarded as having the support of the ballot; and
(c) the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.
Any reference in this subsection to a requirement of a provision which is disapplied or modified by section 232 has effect subject to that section.
(3) Where separate workplace ballots are held by virtue of section 228(1)—
(a) industrial action shall be regarded as having the support of a ballot if the conditions specified in subsection (2) are satisfied, and
(b) the trade union shall be taken to have complied with the requirements relating to a ballot imposed by section 226A if those requirements are complied with,
in relation to the ballot for the place of work of the person induced to take part, or continue to take part, in the industrial action.
(3A) If the requirements of section 231A fall to be satisfied in relation to an employer, as respects that employer industrial action shall not be regarded as having the support of a ballot unless those requirements are satisfied in relation to that employer.
(4) For the purposes of this section an inducement, in relation to a person, includes an inducement which is or would be ineffective, whether because of his unwillingness to be influenced by it or for any other reason."
"(1) The trade union must take such steps as are reasonably necessary to ensure that—
(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and
(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (2F),
is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.
(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing—
(a) stating that the union intends to hold the ballot,
(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and
(c) containing—
(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or
(ii) where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (2C).
(2A) The lists are—
(a) a list of the categories of employee to which the employees concerned belong, and
(b) a list of the workplaces at which the employees concerned work.
(2B) The figures are—
(a) the total number of employees concerned,
(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and
(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).
(2C) The information referred to in subsection (2)(c)(ii) is such information as will enable the employer readily to deduce—
(a) the total number of employees concerned,
(b) the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and
(c) the workplaces at which the employees concerned work and the number of them who work at each of those workplaces.
(2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).
(2E) For the purposes of subsection (2D) information is in the possession of the union if it is held, for union purposes—
(a) in a document, whether in electronic form or any other form, and
(b) in the possession or under the control of an officer or employee of the union.
(2F) The sample voting paper referred to in paragraph (b) of subsection (1) is—
(a) a sample of the form of voting paper which is to be sent to the employees concerned, or
(b) where the employees concerned are not all to be sent the same form of voting paper, a sample of each form of voting paper which is to be sent to any of them.
(2G) Nothing in this section requires a union to supply an employer with the names of the employees concerned.
(2H) In this section references to the "employees concerned" are references to those employees of the employer in question who the union reasonably believes will be entitled to vote in the ballot.
(2I) For the purposes of this section, the workplace at which an employee works is—
(a) in relation to an employee who works at or from a single set of premises, those premises, and
(b) in relation to any other employee, the premises with which his employment has the closest connection.
[(3), (3A) and (3B) have been repealed.]
(4) In this section references to the opening day of the ballot are references to the first day when a voting paper is sent to any person entitled to vote in the ballot.
[(5) is not relevant]"
"(4) A ballot shall be conducted so as to secure that—
(a) so far as is reasonably practicable, those voting do so in secret, and
(b) the votes given in the ballot are fairly and accurately counted.
For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot."
"As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of—
(a) votes cast in the ballot,
(b) individuals answering "Yes" to the question, or as the case may be, to each question,
(c) individuals answering "No" to the question, or, as the case may be, to each question, and
(d) spoiled voting papers."
"(1) As soon as reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that every relevant employer is informed of the matters mentioned in section 231."
"(1) If—
(a) in relation to a ballot there is a failure (or there are failures) to comply with a provision mentioned in subsection (2) or with more than one of those provisions, and
(b) the failure is accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot,
the failure (or failures) shall be disregarded for all purposes (including, in particular, those of section 232A(c)).
(2) The provisions are section 227(1), section 230(2) and section 230(2B)."
"(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action is not protected as respects his employer unless the union has taken or takes such steps as are reasonably necessary to ensure that the employer receives within the appropriate period a relevant notice covering the act.
(2) Subsection (1) imposes a requirement in the case of an employer only if it is reasonable for the union to believe, at the latest time when steps could be taken to ensure that he receives such a notice, that he is the employer of persons who will be or have been induced to take part, or continue to take part, in the industrial action.
(3) For the purposes of this section a relevant notice is a notice in writing which—
(a) contains—
(i) the lists mentioned in subsection (3A) and the figures mentioned in subsection (3B), together with an explanation of how those figures were arrived at, or
(ii) where some or all of the affected employees are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (3C), and
(b) states whether industrial action is intended to be continuous or discontinuous and specifies—
(i) where it is to be continuous, the intended date for any of the affected employees to begin to take part in the action,
(ii) where it is to be discontinuous, the intended dates for any of the affected employees to take part in the action,
…
(3A) The lists referred to in subsection (3)(a) are—
(a) a list of the categories of employee to which the affected employees belong, and
(b) a list of the workplaces at which the affected employees work.
(3B) The figures referred to in subsection (3)(a) are—
(a) the total number of the affected employees,
(b) the number of the affected employees in each of the categories in the list mentioned in subsection (3A)(a), and
(c) the number of the affected employees who work at each workplace in the list mentioned in subsection (3A)(b).
(3C) The information referred to in subsection (3)(a)(ii) is such information as will enable the employer readily to deduce—
(a) the total number of the affected employees,
(b) the categories of employee to which the affected employees belong and the number of the affected employees in each of those categories, and
(c) the workplaces at which the affected employees work and the number of them who work at each of those workplaces.
(3D) The lists and figures supplied under this section, or the information mentioned in subsection (3C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1).
(3E) For the purposes of subsection (3D) information is in the possession of the union if it is held, for union purposes—
(a) in a document, whether in electronic form or any other form, and
(b) in the possession or under the control of an officer or employee of the union.
(3F) Nothing in this section requires a union to supply an employer with the names of the affected employees.
(4) For the purposes of subsection (1) the appropriate period is the period-
(a) beginning with the day on which the union satisfies the requirement of s 231A in relation to the ballot in respect of the industrial action, and
(b) ending with the seventh day before the day, or the first of the days, specified in the relevant notice."
The European Convention on Human Rights, article 11
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
"The Court recalls that, while Article 11 paragraph 1 includes trade union freedom as a specific aspect of freedom of association, this provision does not secure any particular treatment of trade union members by the State. There is no express inclusion of a right to strike or an obligation on employers to engage in collective bargaining. At most, Article 11 may be regarded as safeguarding the freedom of trade unions to protect the occupational interests of their members. While the ability to strike represents one of the most important of the means by which trade unions can fulfil this function, there are others. Furthermore Contracting States are left a choice of means as to how the freedom of trade unions ought to be safeguarded (see the Schmidt and Dahlström v Sweden judgment of 6 February 1976, Series A no. 21, pp.15–16, paragraphs 34–36)."
"140. The development of the Court's case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union's collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers' Union, cited above, § 40; and Schmidt and Dahlström v. Sweden, 6 February 1976, § 36, Series A no. 21).
141. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court's view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers' Union, cited above, § 40; and Schmidt and Dahlström, cited above, § 36).
142. As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers' Union, cited above, § 39). It further stated that this right in no way constituted an element necessarily inherent in a right guaranteed by the Convention (see Schmidt and Dahlström, cited above, § 34).
143. Subsequently, in the case of Wilson, National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members' interests. The union had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members (Wilson, National Union of Journalists and Others, cited above, § 44).
144. As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade-union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, whilst in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court's case-law.
145. From the Court's case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tüm Haber Sen and Çinar, cited above), the prohibition of closed-shop agreements (see, for example, Sørensen and Rasmussen, cited above) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members (Wilson, National Union of Journalists and Others, cited above, § 44).
146. This list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 100, ECHR 2003-II; and Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V)."
"The terms of the Convention require that the law should allow trade unions, in any manner not contrary to article 11, to act in defence of their members' interests … Strike action, which enables a trade union to make its voice heard, constitutes an important aspect in the protection of trade union members' interests … The Court also observed that the right to strike is recognised by the International Labour Organisation's (ILO) supervisory bodies as an indissociable corollary of the right of trade union association that is protected by ILO Convention C87 on trade union freedom and the protection of trade union rights (for the Court's consideration of elements of international law other than the Convention, see Demir and Baykara). It recalled that the European Social Charter also recognised the right to strike as a means of ensuring the effective exercise of the right to collective bargaining. As such the Court rejected the Government's preliminary objection."
"that these sanctions were such as to discourage trade union members and other persons from acting upon a legitimate wish to take part in such a day of strike action or other forms of action aimed at defending their affiliates' interests."
"43. In that regard, it must be recalled that the right to take collective action, including the right to strike, is recognised both by various international instruments which the member states have signed or cooperated in, such as the European Social Charter, signed at Turin on 18 October 1961 – to which, moreover, express reference is made in Article 136 EC – and Convention No.87 concerning Freedom of Association and Protection of the Right to Organise, adopted on 9 July 1948 by the International Labour Organisation – and by instruments developed by those member states at Community level or in the context of the European Union, such as the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held in Strasbourg on 9 December 1989, which is also referred to in Article 136 EC, and the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000.
44. Although the right to take collective action, including the right to strike, must therefore be recognised as a fundamental right which forms an integral part of the general principles of Community law the observance of which the court ensures, the exercise of that right may none the less be subject to certain restrictions. As is reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union, those rights are to be protected in accordance with Community law and national law and practices. In addition, as is apparent from paragraph 5 of this judgment, under Finnish law the right to strike may not be relied on, in particular, where the strike is contra bonos mores or is prohibited under national law or Community law.
45. In that regard, the court has already held that the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, such as the free movement of goods (see case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 74) or freedom to provide services (see case C-36/02 Omega [2004] ECR I-9609, paragraph 35).
46. However, in Schmidberger and Omega, the court held that the exercise of the fundamental rights at issue, that is, freedom of expression and freedom of assembly and respect for human dignity, respectively, does not fall outside the scope of the provisions of the Treaty and considered that such exercise must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality (see, to that effect, Schmidberger, paragraph 77, and Omega, paragraph 36).
47. It follows from the foregoing that the fundamental nature of the right to take collective action is not such as to render Article 43 EC inapplicable to the collective action at issue in the main proceedings."
"27. Parliament's object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity, but to ensure that such action should have the genuine support of the members who are called upon to take part. The requirement has not been imposed for the protection of the employer or the public, but for the protection of the union's own members. …
32. … It would be astonishing if a right which was first conferred by Parliament in 1906, which has been enjoyed by trade unions ever since and which is today recognised as encompassing a fundamental human right, should have been removed by Parliament by enacting a series of provisions intended to strengthen industrial democracy and governing the relations between a union and its own members."
"45. … Under s.226A(2)(c) and s.234A(3)(a) in their original form, the clear legislative purpose was to enable an employer to know which part or parts of its workforce were being invited to take industrial action, in order that the employer could (first) try to dissuade them and (secondly, and so far as unsuccessful in its first aim) make plans to avoid or minimise disruption and continue to communicate with the relevant part or parts of the workforce. That required the employer to be able to ascertain (that is, identify) the relevant employees. …
46. After the concerns expressed by this court in the Blackpool [1994] IRLR 227 case, and no doubt for other reasons also, Parliament altered the legislation by the 1999 Act so as to make plain that a union could not be compelled to provide a list of names (although a union is still at liberty to do so if it thinks fit, and if RMT had done so it seems likely that LUL and the other claimants would have continued their previous practice of themselves annotating the list with grades and workplaces). But there was not any significant change in the legislative policy or in the purpose for which information was to be given to the employer. The change was a change of means, not of objective, in order to meet the concerns of those members of a union who objected to being included in a list of names. It was not intended to make it easier for a union to prepare notices under s.226A and s.234A, and indeed it is clear from the facts of this case that it may make the task more onerous. But that is not as surprising as Mr Hand has contended. It is the inevitable consequence of expressly enacting that a union is not bound to provide a list of names."
"61. In relying on theHuman Rights Act
1998, Mr Hand referred to National Union of Belgian Police v Belgium [1975] 1 EHRR 578, 591 for the proposition, which is not in dispute, that the right to form and join trade unions, conferred by Article 11(1) of the European Convention on Human Rights, entails that Contracting States must permit and make it possible for a trade union to take action for the protection of its members' interests. That is as far as the authorities go in recognising a right to strike, and the Commission's decision on inadmissibility in the Blackpool [1994] IRLR 227 case shows that the notice requirements as they then stood were not an infringement of union rights. See also Schmidt v Sweden [1976] 1 EHRR 632, 644:
'The Court recalls that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. Article 11(1) nevertheless leaves each State a free choice of the means to be used towards this end. The grant of a right to strike represents without any doubt one of the most important of these means, but there are others. Such a right, which is not expressly enshrined in Article 11, may be subject under national law to regulation of a kind that limits its exercise in certain instances.'
I would reject Mr Hand's submission that there is anything oppressive or disproportionate in the legislation as it now stands."
"79. It is wholly artificial in those circumstances to say that the union should have given details of job descriptions and status of employees of the sort to which my Lord referred. It is much more reliable from an employer's point of view if, having been given the names, he himself, with his superior knowledge of the way in which his operation works, decides into what categories and into what sections those persons fall. When that point was put to Mr Béar in argument he was constrained to agree that that was indeed as a matter of common sense, but that approach, he said, was prevented by the wording of the statute. We should look with great caution at such an argument about a statute such as this, which is a statute directed to industrial relations, designed to enable workers and employers to conduct their affairs in a sensible and efficient way.
"81. But if I am wrong about that, the fact that the notice in this case provided, by a reference easily available to the employer, an actual nominal roll more than amply fulfilled any obligation placed upon the union by this statute. I would not want to be thought to be laying down any rule that goes outside the facts of this case, save to say that the obligations of the union must be assessed in the circumstances of the particular strike and in a commonsense way in the light of the policy of the legislation. In this case that objective was achieved and I would therefore allow the appeal on that ground also."
"66. Since the Convention is first and foremost a system for the protection of human rights, the Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory. The Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.
67. In addition, the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties.
68. The Court further observes that it has always referred to the "living" nature of the Convention, which must be interpreted in the light of present-day conditions, and that it has taken account of evolving norms of national and international law in its interpretation of Convention provisions."
"The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases."
i) In the General Survey under the aegis of the International Labour Office from the 81st session of the International Labour Conference in 1994, in Chapter V, about the right to strike, paragraph 170 and part of paragraph 172 are noteworthy:
"170. In many countries legislation subordinates the exercise of the right to strike to prior approval by a certain percentage of workers. Although this requirement does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. The conditions established in the legislation of different countries vary considerably and their compatibility with the Convention may also depend on factual elements such as the scattering or geographical isolation of work centres or the structure of collective bargaining (by enterprise or industry), all of which require an examination on a case by case basis. If a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of votes cast, and that the required quorum and majority are fixed at a reasonable level.
172. In a large number of countries the law requires workers and their organizations to give notice of their intention to strike or gives the authorities the power to impose an additional cooling-off period. In so far as they are conceived as an additional stage in the bargaining process and designed to encourage the parties to engage in final negotiations before resorting to strike action – preferably with the assistance of a conciliator or a special mediator – such provisions may be seen as measures taken to encourage and promote the development of voluntary collective bargaining as provided for in article 4 of Convention No. 98. Again, however, the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike. …"
ii) In the Report of the Committee of Experts under the European Social Charter in 2002, a study of the legislation in the UK made a number of detailed points, on some of which the law has since been amended, and concluded in the following trenchant terms:
"The Committee concludes that the United Kingdom does not guarantee the right to take collective action within the meaning of article 6.4 of the Charter: the notion of lawful industrial action is restrictive, the procedural requirements are onerous, the consequences for unions where industrial action is found not to be lawful are serious, and the workers have limited protection against dismissal when taking industrial action."
"describing (so that he can readily ascertain them) the employees who it is reasonable for the union to believe (at the time when the steps to comply with [paragraph (a) of subsection (1)] are taken) will be entitled to vote in the ballot."
"containing such information in the union's possession as would help the employer to make plans and bring information to the attention of those of his employees who it is reasonable for the union to believe (at the time when the steps to comply with [paragraph (a) of subsection (1)] are taken) will be entitled to vote in the ballot."
"A new disregard relating to small failures to follow the law on pre-ballot and pre-strike notices could be introduced. The disregard would concern accidental errors on a scale which would not significantly reduce the practical help provided through the notices to the employer. This measure would reduce the scope for legal wrangling over minor technicalities in an area of the law where unions need to process a lot of information to meet the statutory requirement."
The ballot and strike notices
"RE: OPERATING PAY NEGOTIATIONS – 2008
This letter is to give you notice that this union intends to hold a ballot for industrial action. The ballot will open on 18 August 2008.
Your employees who will be entitled to vote will be those who are members of the T & G Section of Unite the Union employed by you at Crawley, Croydon and Orpington depots in the following category, operating Staff (drivers).
Those members in any of the above category who pay union subscriptions through check-off are known to you, including their individual categories and workplaces, and I believe that they number 776.
A number of, I believe 69 members pay union subscriptions by means other than check-off.
The attached matrix provides such information as the union possesses about the numbers in particular categories of the non check-off members.
I believe that the total number of your employees who will be entitled to vote in the ballot (both check-off non check-off) is therefore 845.
The information set out in this notice is an accurate as possible in the light of the information in the possession of the union at the date this notice is given."
"RE: INDUSTRIAL ACTION BALLOT
I am writing to you to inform you of the result of the ballot for industrial action held on 18 August 2008. I enclose a copy of the Independent Scrutineer's report, which provides you with the information you require.
I hereby give notice that your employees who are members of the T & G Section of Unite the Union employed by you at Crawley, Croydon and Orpington depots in the following category; Operating Staff (drivers) will be taking part in industrial action.
Those members in any of the above categories who pay union subscriptions through check-off are known to you, including their individual categories and workplaces, and I believe that they number 766.
A number of, I believe 69 members pay union subscriptions by means other than check-off. Such information as the union possesses about the numbers and the categories covered is as follows:
Workplace | Category | Number |
Crawley Depot Croydon Depot Orpington Depot |
Operating staff (Drivers) |
8 18 43 |
I confirm that the union does not possess information in any document or in electronic form as to numbers in each category.
I believe that the total number of all your employees who will be taking industrial action (both check-off and non-check off) is therefore 845. Please note however the new members listed below will also be taking part in industrial action. This will take the total therefore to 857."
Giving notice to Metrobus of the result of the ballot
"AUTHORITY
METROBUS LIMITED – CRAWLEY WEST SUSSEX
(Operating Staff – Drivers – Crawley - Croydon & Orpington Depots)
Further to previous correspondence, I have been informed by the ERS that the ballot result is affirmative and I, therefore, give authorisation for strike action to be taken to resolve the difficulty at the above company.
If the members decide upon, or contemplate taking strike action, then the ballot result must be sent to the employer asap.
If strike action does take place I also give authority for grants to be paid, equalling dispute benefit, to the members concerned if the action consists of three days or more. The Servicing Officer should ensure, when sending the ballot result to the employer, that he does not include ERS' cover sheet giving number of members balloted. This does not form part of ERS' report.
The relevant action notice letter, set out in the latest Advice (Unite the Union) should be sent to the employer seven days in advance of any action and a copy forwarded to me at the same time it is sent to the employer.
If I am not in receipt of this information within the respective time limit, the authority will not be valid."
"3. With regard to the Metrobus postal ballot, approximately a month before the ballot commenced it was necessary for me to check membership details, so that members to be balloted could be identified. During this period numerous telephone calls were made between branches so that any queries with regard to the membership list could be dealt with. The membership list confirmed that 776 members paid by check-off and 69 members paid by other means.
4. Once the administration referred to in paragraph 3 above had been finalised, the postal ballot was held and it was successful. …"
Telling the employer the result of the ballot
"The defendant was not entitled in my judgment to delay informing the employer of the result, even by one day, while it determined whether to give notice of industrial action based upon that result."
The lack of explanation in the ballot notice and the strike notices
"(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or
(ii) where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (2C)."
"Where only some of the employees concerned pay their union contributions by the "check off", the union's notice may include both types of information. That is, the lists, figures and explanations should be provided for those who do not pay their subscriptions through the check off whilst information relating to check off payments may suffice for those who do."
"When providing an explanation of how the figures in the written notice were arrived at, unions should consider describing the sources of the data used (for example, membership lists held centrally or information held at regional offices, or data collected from surveys or other sources). It is not reasonable to expect union records to be perfectly accurate and to contain detailed information on all members. Where the union's data are known to be incomplete or to contain other inaccuracies, it is a desirable practice for unions to describe in their notices the main deficiencies. In some cases the figures will be estimates based on assumptions and the notice should therefore describe the main assumptions used when making estimates."
The inaccuracy of the figures
"It is well understood that a union is not expected to achieve 100% perfection in the conduct of ballots such as these. A union has the protection of the de minimis rule and the test of reasonable practicability: see British Railways Board v National Union of Railwaymen [1989] IRLR 349. There will always have been some recent toings and froings with which the best of paperwork or computer systems will not have caught up. It is all a matter of fact and degree in a particular case."
The effect of article 11 of the interpretation of the relevant sections
The judge's exercise of his discretion
Disposition
Lord Justice Maurice Kay
"where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (3C)."
Section 234A(3C) defines the section 234A(3)(a)(ii) information as
"such information as will enable the employer readily to deduce"
numbers of employees, categories and workplaces. It does not require "an explanation".
The President of the Family Division