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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ultraframe (UK) Ltd, R (on the application of) v Central Arbitration Committee [2005] EWCA Civ 560 (22 April 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/560.html Cite as: [2005] EWCA Civ 560, [2005] ICR 1194, [2005] IRLR 641 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE DAVIS)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE MAURICE KAY
SIR MARTIN NOURSE
____________________
QUEEN ON APPLICATION OF ULTRAFRAME (UK) LTD |
Claimant/Respondent | |
| -v- | ||
| CENTRAL ARBITRATION COMMITTEE | Defendant/Appellant |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR THOMAS LINDEN and MR DAN SQUIRE (instructed by Treasury Solicitor) appeared on behalf of the Appellant
MR ANDREW HOCHHAUSER QC and MISS HELEN MOUNTFIELD (instructed by Fairclough Alexander of Manchester) appeared on behalf of the Respondent
____________________
Crown Copyright ©
Introduction
This is another case about the jurisdiction of the Central Arbitration Committee ("CAC"), a body that takes its present form from section 260 of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended. The chairman of the CAC is currently a Judge of the High Court, Sir Michael Burton the President of the Employment Appeal Tribunal. All of its members are required by statute to be persons experienced in industrial relations. One of functions of the CAC is to act in and about the procedure for determination of applications by trade unions for bargaining rights with a particular employer, under provisions equally to be found in the 1992 Act as amended, and in particular in Schedule A1 thereto. The statutory rules and procedures governing that process are summarised in the judgment of Mr Justice Elias in his judgment in the Kwik-Fit case. I will follow the example of this court in R Kwik-Fit (GB) Ltd v Central Arbitration Committee [2002] ICR 1212 by simply appending to this judgment the relevant parts, paragraphs 5-15, of Elias J's judgment. It is only necessary to add that by section 263A of the 2002 Act the CAC is required to discharge its functions in respect of any particular application to a panel of three members, the same panel retaining responsibility throughout that application.
"(1) As soon as is reasonably practicable after the CAC is informed of the result of a ballot by the person conducting it, the CAC must act under this paragraph.
(2) The CAC must inform the employer and the union or unions of the result of the ballot.
(3) If the result is that the union is (or the unions are) supported by -
(a) a majority of the workers voting, and
(b) at least 40 per cent of the workers constituting the bargaining unit,
the CAC must issue a declaration that the union is (or the unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
(4) If the result is otherwise the CAC must issue a declaration that the union is (or the unions are) not entitled to be so recognised."
The application in this case
Ultraframe
(UK) Ltd ("
Ultraframe
"). In a case which is opposed by the employer, and the CAC is not satisfied that a majority of the workers constituting the bargaining unit are members of the unions concerned, it must arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they wish the unions to conduct collective bargaining on their behalf (paragraph 23 of Schedule A1). The ballot arranged in this case, the result of which was delivered by the Qualified Independent Person ("QIP") on 28 April 2004, revealed a majority of workers in favour of recognition, but the numbers voting in favour fell short by four votes of the required 40 per cent of all members of the bargaining unit. The unions complained to the CAC that some of their members had not received ballot papers. The CAC panel seised of the application instituted an inquiry, in which it judged that five employees had not been given sufficient opportunity to vote; found that if given an opportunity they would have voted for recognition; and as a result ordered the ballot to be re-run.
Proceedings
Ultraframe
contended and contends that the CAC had no jurisdiction to go behind the result of the ballot as delivered to it by the QIP. Its duty, and its only power at that stage, was to make the declaration of non-entitlement to recognition set out in paragraph 29 (4) of Schedule A1.
Ultraframe
also contended that the CAC's decision that the five employees had not had a sufficient opportunity to vote had been irrational. In judicial review proceedings Davis J agreed with both arguments. He quashed the decision of the CAC to order a new ballot, and ordered it forthwith to make the declaration under paragraph 29 (4). His order in detail was as follows:
"1 The decision of the CAC, of 29 June 2004, under paragraph 23 of the Trade Union and Labour Relations (Consolidation) Act 1992, Schedule A1, to order a new ballot of workers atUltraframe
's place of work be and hereby is quashed.
2 The matter be remitted to the CAC which is hereby ordered to exercise its statutory duty under paragraph 29 (4) of Schedule A1 to make a declaration of non-recognition against the GMB and URTU for the purposes of collective bargaining atUltraframe
(UK) Limited."
This appeal
Ultraframe
in the court below were the CAC and the GMB union. The CAC fully argued the jurisdiction point, but remained neutral on the issue of irrationality, in respect of which argument in support of the decision of the CAC panel was presented only by the GMB. The GMB has not appealed against the decision of Davis J, though it has indicated informally that it supports the appeal brought by the CAC. The CAC sought to argue both the jurisdiction and the irrationality points. That circumstance caused
Ultraframe
to submit that it was not open to the CAC, the only appellant, to appeal against the decision of Davis J on the irrationality issue, because it did not present argument on that issue in the court below; and, if that was correct, the whole appeal must fail in limine, because a decision on the jurisdiction point in the CAC's favour would be academic, granted that it would already have lost on irrationality.
"(1) The appellant will no longer pursue the irrationality point and will limit the relief which it seeks to a variation of the order of Davis J dated 24 February 2005 to add a declaration that -
'The defendant had jurisdiction under paragraph 24 (4) Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 to order a further ballot. The remainder of the order will stand'.
(2) Given that the jurisdictional issue rose on the ambit of a present dispute, the respondent has nothing to say if the court wishes to hear the appeal on that issue.
(3) In the light of the appellant not seeking to overturn the order below, counsel for the respondent has instructions not to oppose the appeal on jurisdiction and with the court's permission proposes to withdraw.
(4) There will be no order as to costs."
" ..... that on an appeal on an issue of public law involving a public authority the House of Lords had discretion to hear the appeal even if by the time it was due to begin there was no longer a lis to be determined directly affecting the parties' rights and obligations inter se ..... "
We make two further comments: (1) it is clear from the judgments that that view applies to courts below the House of Lords, (2) we have taken note of the warning that the discretion of the court to hear academic appeals of that sort has to be exercised with caution.
The role of the CAC
"In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned."
And in Kwik-Fit [2002] ICR 1212, para 2, this court said:
" ..... the CAC was intended by Parliament to be a decision making body in a specialist area that is not suitable for the intervention of the courts."
Mr Linden also pointed out that the CAC's role in relation to the ballot, whatever it might be, had to be seen in the context not only of the general guidance just set out, but also as part of its responsibility in relation to a wide range of issues in the course of a recognition application, extending even to the supervision of the process of agreement as to the form and methods of collective bargaining once declaration has been made as to bargaining rights: see paragraphs 30-31 of Schedule A1.
The CAC's role in relation to the ballot:
Ultraframe
's argument and the judge's conclusion
Ultraframe
argued, and the judge agreed, that the statutory position was simple. The CAC's function was to "arrange" the holding of the ballot (paragraph 23 (2)). The ballot is to be conducted not by CAC itself, but by the QIP appointed by the CAC (paragraph 25 (2)). The only role for the CAC thereafter is to take action if the employer does not comply with his duty under paragraph 26 (4) to provide the CAC with information as to the workers who constitute the bargaining unit, for onward transmission by the CAC to the QIP. The QIP completes her functions by delivering the result of the ballot to the CAC. The CAC's role then is explicit, clear and limited. It must (that word is emphasised) act on the result of the ballot in the way required by paragraph 29. There is no provision, and no room, for the CAC to act as it did in this case, and question the validity of the ballot, and much less to reject the figures given to it by the QIP and order a substitute ballot. And the conclusion must follow from that general argument that the CAC was obliged to act on the QIP's figures as delivered to it even if it had incontrovertible evidence that they had been produced by mistake, or even by fraud.
Ultraframe
, has to be to the Administrative Court.
Ultraframe and accepted by the judge produces a result that by its inconvenience and encouragement of litigation is unlikely to improve the efficient and economic conduct of industrial relations. It is therefore necessary to consider whether any alternative construction is available.
The jurisdiction of the CAC
"in which the workers constituting the bargaining unit are asked whether they want the union or unions to conduct collective bargaining on their behalf."
As the CAC put it in relation to the complaint in this case, not some of the workers but all of them. The CAC continued, in its paragraph 31:
"the reference in paragraph 29 is to a ballot conducted in accordance with the statutory requirements. Accordingly, the simple communication and arithmetic duties imposed on the Panel apply only in the case of a ballot which meets those standards. Where those standards have not been met, paragraph 29 cannot be determinative of what the CAC should do."
I respectfully agree.
"The defendant had jurisdiction under the Trade Union and Labour Relations (Consolidation) Act 1992 to order a further ballot."
R (Kwik-Fit (GB) Ltd) v Central Arbitration Committee (CA)
Elias J
"Legislative context
5. It is necessary to set out the statutory background against which this application is made. The legislation was introduced by theEmployment Relations Act 1999 which created a new schedule - Schedule A1 - to the Trade Union and Labour Relations (Consolidation) Act 1992. The schedule deals with recognition and subsequent variations as well as de-recognition. Recognition itself is regulated by Part 1 of the schedule. The provisions are exceptionally detailed; Mr Bean for the CAC accurately described them as being of "byzantine complexity". I will not begin to seek to deal with all the permutations envisaged by the statue but will merely outline the basic structure so that the issues in this case can be placed in context.
6. The purpose of the legislation is to enable a trade union which is refused recognition by an employer to use the legal process to require the employer to enter into collective bargaining. Recognition means that the union should be "entitled to conduct collective bargaining on behalf of a group or groups of workers": paragraph 1. Collective bargaining in turn is defined as "negotiations relating to pay, hours and holidays", unless the parties agree to a broader range of matters: paragraph 3.
7. The process commences with the trade union making a request for recognition from the employer. Certain conditions must be met if the request is to be treated as valid within the terms of the legislation. For example, it must be in writing, be made by an independent trade union and identify the proposed bargaining unit. In addition, the employer (together with any associated employer) must employ at least 21 workers: paragraphs 4 to 9.
8. The employer is given 10 working days to agree the request. If the request is accepted that is the end of the matter. If it is rejected or there is no response, then the union applies for recognition. This is made pursuant to paragraph 11 (2), an important provision in this case which I set out below. (There is a variation of the procedure where the employer agrees to negotiate about the proposed recognition but those negotiations fail to bear fruit).
9. The second stage is the acceptance or otherwise of the application. The CAC must decide two questions in order to determine whether the application can be accepted. First, it must be satisfied that the original request was valid in the way I have described above. Second, it must decide whether it is admissible within the meaning of paragraphs 33 to 42: see paragraph 15. The most important criterion of admissibility is that members of the union must constitute at least 10 per cent of the workers in the proposed bargaining unit, and that the CAC must be satisfied that a majority of the workers would be likely to favour recognition: paragraph 36.
10. The third stage is the determination of the bargaining unit. (That, of course, is the principal issue in this case.) In accordance with the general philosophy that voluntarism is preferable to legal regulation, the CAC must try to help the parties reach agreement as to the relevant bargaining unit. But if that is unsuccessful, then the CAC itself must determine the bargaining unit: paragraph 19 (2). Paragraph 19 (3) and (4) set out criteria which must be taken into account in the course of that process. I consider them in more detail below.
11. Once the CAC has determined the bargaining unit, the fourth stage depends on the outcome of that decision. If the bargaining unit determined is the same as that proposed by the union, then a ballot may have to be held. In general, a ballot will not be required if the union has a majority of the workers in the bargaining unit as members (although even then a ballot may be required if, broadly, there are doubts as to whether the majority does want the union to be recognised, or if good industrial relations makes this desirable): paragraph 22. Otherwise a ballot will be necessary. Where no ballot is required, the CAC simply declares that the union is recognised and entitled to conduct collective bargaining.
12. The position is more complex if the stipulated bargaining unit is not that proposed by the union. The CAC must then decide whether the application is invalid within the meaning of paragraphs 43 to 50: see paragraph 20. The most significant feature here is that the CAC must be satisfied in respect of the stipulated bargaining unit that the 10 per cent criterion and that relating to the likelihood of majority support are met. If not, the application will at that stage be treated as invalid. If it is valid, then the issue as to whether a ballot is required is determined in the same manner as I have outlined above.
13. Where a ballot is required it will be carried out by a qualified independent person appointed by the CAC. The employer must co-operate in the process and permit the union to have access to the workers. The CAC must make a declaration of recognition if the result is favourable; this requires both that those who vote in favour constitute a majority of those voting; and that they constitute at least 40 per cent of the workers constituting the bargaining unit: paragraph 29 (2).
14. If the vote is against then the CAC must declare that the union is not entitled to recognition. Essentially it cannot re-apply for recognition in respect of that group of workers (or a substantially similar group) for three years: paragraph 40.
15. The consequences of the declaration in favour of recognition are that the employer is obliged to recognise the union in respect of the relevant bargaining unit. In the absence of agreement between the parties, the CAC will be required to stipulate the method by which collective bargaining can be carried out: paragraphs 30 and 31. The ultimate, and only, sanction for failure to comply is specific performance: paragraph 31 (6)."
Order: Appeal allowed, stay was lifted.