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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Balfour Beatty Engineering Services Ltd v Unite the Union  EWHC 267 (QB) (16 February 2012)
Cite as:  EWHC 267 (QB),  ICR 822,  IRLR 452
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BALFOUR BEATTY ENGINEERING SERVICES LIMITED
|- and -
|UNITE THE UNION
John Hendy QC and Michael Ford (instructed by Thompsons) for the Defendant
Hearing dates: 7 and 8 February 2012
Crown Copyright ©
Mr Justice Eady :
"1. The Defendant must not, until trial or further order, whether by any official, officer, servant, agent or local Branch, or otherwise howsoever induce, call for, authorise or support any form of industrial action whether in the form of strike action or short of a strike in reliance upon the ballots it conducted between 19 January 2012 and 2 February 2012 of which notification was supplied to the Claimant on 12 January 2012;
2. The Defendant must not otherwise seek to induce its members employed by the Claimant to take [any form of] industrial action, whether in the form of strike action or short of a strike, unless and until it has properly complied with the balloting requirements contained within Part V of the Trade Union and Labour Relations (Consolidation) Act 1992."
"Ensuring secrecy of voting
39. Any list of those entitled to vote should be compiled, and the voting papers themselves handled, so as to preserve the anonymity of the voter so far as this is consistent with the proper conduct of the ballot.
40. Steps should be taken to ensure that a voter's anonymity is preserved when a voting paper is returned. This means, for example, that:
- envelopes in which voting papers are to be posted should have no distinguishing marks from which the identity of the voter could be established; and
- the procedures for counting voting papers should not prejudice the statutory requirement of secret voting."
"Every trade union is required by law to maintain a register of its members (see section 24 of the 1992 Act). But it is a fact of life that no trade union of any size can keep completely full and accurate records of the names and addresses of its ever-changing body of members, still less their current places of work, trade categories and pay grades … "
This highlights the need to make due allowance for these realities by reference to what, in the particular circumstances, may be regarded as reasonably practicable.
(2) Except as regards persons falling within subsection (2A), so far as is reasonably practicable, every person who is entitled to vote in the ballot must –
(a) have a voting paper sent to him by post at his home address or any other address which he has requested the trade union in writing to treat as his postal address; and
(b) be given a convenient opportunity to vote by post.
(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."
"So long as the union, owing to human error or failings, failed to ballot the correct constituency, the section can bite."
He added that this was "plainly the case here". It seems to me that "human error or failings" could, in some circumstances, lead to a union's failure to ballot the correct constituency without the carefully worded provisions of either s.230(2) or s.232B coming to its aid. There might be a case where the democratic legitimacy of a process was so undermined by the errors in question that they simply could not be overlooked.
i) In September 2011 Mr Drysdale printed off a list of all the members on the Unite database in respect of whom BBES was recorded as the employer.
ii) For the purpose of the first (November) ballot, it was checked against the information held by the Joint Industry Board over six days of visits by Unite staff.
iii) For the second (January/February) ballot, Unite checked its database against a BBES list of check-off payers (although not as informative as had been hoped). In December Mr Bell from the Unite subscriptions department (as he confirmed in evidence) found a list relating to check-off members who were weekly staff. Mr Drysdale identified that there were 25 check-off payers who had claimed to be employed by BBES but who did not appear on that list. Only 13 of them were found to be included on the list of monthly check-off payers (obtained on 9 January by another Unite official following enquiries made of Balfour Beatty Pensions Plc and also of the independent company which deals with the pay source). This list of monthly payers contained altogether 162 names, but it would have been inappropriate to send papers to all those individuals, since it was quite possible that it included people who were not actually employed by BBES and who would therefore be outside the constituency.
iv) On 6 December, Unite sent out questionnaires (2447 by post and 1065 by email) to those members recorded as working for any company within the Balfour Beatty Group asking them to identify, in each case, his or her particular employing company.
v) Mass 1 was engaged by Unite to contact every member who was recorded as working for any company within the Group and for whom a telephone number was available. Mass 1 managed to contact nearly 6000 of the telephone numbers and the information thereby obtained was used in order to update the details on Unite's database in relation to 572 members.
vi) The regional offices of Unite were sent lists based on the information yielded by these researches and asked to chase up, by telephone, information relating to any members recorded as working for BBES, Cruikshanks or Haden Young. It is common ground that because of a merger in 2009 it would now be appropriate to classify members recorded as working for Cruikshanks or Haden Young as falling under the BBES umbrella (assuming no subsequent departures).
vii) A yet further questionnaire was sent out with the Unite Christmas newsletter requesting that individual members should update the information on their current employer. This went out on 22 December to all those members recorded as working for a Balfour Beatty company or for any other company seeking to end existing collective bargaining arrangements.
viii) A further 3593 questionnaires were sent out at the same time to all Unite members who were recorded on its database under the "General Construction" code. Thus, it seems that a total of 8847 questionnaires were sent by post and 1065 by email.
ix) The information obtained was used under the supervision of Mr Drysdale to update membership records and this naturally included the information as to the individual's employing company.
x) Where there remained gaps in the information required, further attempts were made to contact the relevant member individually up to 9 January. This led to further updating.
xi) On the advice of the Unite legal department, yet further enquiries were made thereafter.
xii) Mr McAulay described how further steps were taken to alert Unite members to the imminent ballot.
The evidence indicates that these enquiries took some 500 hours or more of work on the part of the Unite staff involved.
UPON reading submissions from leading counsel for the Defendant dated 22 February 2012
AND UPON reading the letter from the Claimant's solicitors dated 20 March 2012
IT IS ORDERED THAT:
" … It is obvious that the insertion of the latter was intended to provide an additional qualification to the union's duty, since it comes into effect on the premise that the relevant union has failed the test of reasonable practicability: see again the judgment of Elias LJ in Serco at -. What is contemplated, therefore, is the possibility of breaches occurring in the light of that failure, but which are accidental and insignificant. … "
Dated: 26 March 2012