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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Warrington Borough Council v Unite The Union [2023] EWHC 3093 (KB) (01 December 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/3093.html Cite as: [2024] IRLR 190, [2024] ICR 599, [2024] WLR(D) 85, [2023] EWHC 3093 (KB) |
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QUEEN'S BENCH DIVISION
KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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WARRINGTON BOROUGH COUNCIL |
Applicant/Claimant |
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- and |
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UNITE THE UNION |
Respondent/Defendant |
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Rebecca Tuck KC and Madeline Stanley (instructed by Thompsons Solicitors LLP) for the Respondent
Hearing date: Tuesday 28 November 2023
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Crown Copyright ©
The Honourable Mrs Justice Eady DBE:
Introduction
The Background
The NJC
The Relevant History
". An increase of 2% + RPI on all spinal column points
In addition:
. Consideration of a flat rate increase to hourly rates of pay in order to bring the minimum rate up to £15 per hour within two years
. A review and improvement of NJC terms for family leave and pay
. A review of job evaluation outcomes for school staff whose day to day work includes working on Special Educational Needs (SEN)
. An additional day of annual leave for personal or well-being purposes
. A homeworking allowance for staff for whom it is a requirement to work from home
. A reduction in the working week by two hours
. A review of the pay spine, including looking at the top end, and discussions about the link between how remuneration can be used to improve retention."
"Unite is in dispute concerning the pay rates for 2023/2024 for all workers whose pay is based upon pay awards made by the [NJC]
Unless and until your organisation agrees to a pay increase of RPI + 2% and the additional elements of Unite's pay claim for all such workers, payable from April 2023, a trade dispute subsists between your organisation and members of this union employed by it."
"The pay rates for 2023/2024 for all workers whose pay is based upon pay awards made by the [NJC] ... Unite seeks a pay increase of RPI + 2% and the additional elements of Unite's pay claims for all such workers, payable from April 2023."
"WBC understands that this dispute and the industrial action is in relation to the 2023 national pay situation/awards. We fully respect national pay bargaining arrangements and feel it is not appropriate to do anything outside of this -nor do we want to negotiate with one single trade union."
" willingness to reach a negotiated settlement locally with Warrington Borough Council under [NJC] Part III provisions, ... Unite will not accept local authorities hiding behind the notion that employers must abide by the NJC negotiations, as Part III provisions clearly allow for local negotiations, combined with the fact that the NJC outlines the minimum terms and conditions, not the maximum."
"I would just reconfirm that the reason for your industrial action as stated in documentation supplied to the Council in relation to the ballot was "the rates of pay for 2023/2024 for all workers whose pay is based upon pay awards made by the [NJC]
I am not aware of UNITE raising any local pay issues other than the national pay award with us as an employer, despite having a robust consultative framework in place, which includes a Joint Consultative Committee, consisting of Trade Unions and Elected Members, and which provides a forum for any such matters to be raised or escalated to
However, I am willing to take a call with ACAS as you suggest, to hear how they may wish to assist. ."
" In addition to a laundry allowance, you also wish to discuss Agency workers, continuous employment for seasonal workers, Christmas working arrangements and the job evaluation process for staff.
I note that none of these areas are items that were part of the collective national NJC pay claim for 2023, upon which you subsequently have decided to take strike action targeting waste services in Warrington.
All of that notwithstanding, the Council is willing to listen to you in more detail regarding the issues you have now put forward to ACAS. ."
"Regarding the items raised with you via ACAS, namely 'laundry allowance, Agency workers, continuous employment for seasonal workers, Christmas working arrangements and the job evaluation process for staff', this list was always non-exhaustive, and we would like to be able to freely discuss any item during the negotiations. If we are too prescriptive, we may leave ourselves unable to discuss other items that may be helpful to finding a mutually agreeable position. Other items that I have raised with ACAS include 'task and finish, additional holidays, non-consolidated lump sum payment'. This list is also non-exhaustive, but indicative of what Unite believe could be discussed to resolve this dispute."
" this does not prevent Unite from continuing to deliver results under the Green Book Part III provisions which allow for local negotiations. That is what we are seeking to achieve currently. "
As for the issues raised in those local negotiations, Mr Troake identified eight matters, all of which I understand to be specific to those working in waste services, save for: laundry allowance (albeit Mr Troake's note described this in terms of its potential benefit for refuse workers), an increase in holiday, and a non-consolidated lump-sum payment.
" the national pay award has been settled today. We will now be making arrangements to implement the pay award as soon as possible.
Given that the basis for your strike action was "the rates of pay for 2023/24 for all workers whose pay is based upon pay awards made by the NJC for Local Government Services". Also, given the annual national pay award is now settled and that we have made a separate offer to discuss local issues, I am now calling on you to cancel your strike action that is due to commence on Wednesday 8 November, to prevent any further disruption to Warrington residents and businesses."
" will not cancel the strike action , as we have not yet reached a satisfactory resolution to our dispute with Warrington Borough Council.
I have been clear throughout this process and in my communication to-date, that it is Unite that are in dispute with Warrington Borough Council, and therefore it is only Unite and its members that can resolve this dispute. This point has been made repeatedly and I continue to make this point as clear and unambiguous as possible.
This dispute will not be resolved until Warrington Borough Council make an improved offer that is satisfactory to our members."
" Unite is clear that our campaign continues!
Any members still in dispute with their local authority will continue to receive the full support of the union, until a fair settlement is agreed."
" will now be taking legal advice in respect of the forthcoming industrial action and I once again urge you to recognise that the basis of your dispute as voted by your UNITE membership across the council in Warrington has now been settled by the NJC, and for you to immediately call off any further planned strike action."
The effect of the strike action
The Relevant Legal Principles
The approach I am to take on this application
"[w]here - (a) an application for an interlocutory injunction is made to a court pending the trial of an action, and (b) the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute, the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party's succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) ".
"Cases of this kind bring into the balance of convenience an important additional element in considering whether or not to grant an interim injunction the court should have regard to the likelihood of the defendant's succeeding in establishing that what he did or threatened was done and threatened in contemplation or furtherance of a trade dispute."
" the fact that the evidence before the court makes it more likely than not that if at the trial that evidence were neither supplemented nor contradicted, the defendant would succeed in establishing a statutory immunity , this is a factor in favour of refusing to grant an interlocutory injunction which, although not necessarily conclusive, is a weighty factor: and the greater the likelihood the greater is the weight to be attached to it."
Statutory Immunity
"(1) a dispute between workers and their employer which relates wholly or mainly to one of more of the following- (a) terms and conditions of employment, or the physical conditions in which any workers are required to work; ."
"(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."
" a summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates."
"33. the summary had to be a reasonable summary of the dispute but needed to be no more than that. The meaning of the summary was to be determined by reference to the hypothetical reasonable member of the union who receives a ballot, who might be compared to the hypothetical reader of a publication in James v News Magazine [2008] EWCA Civ 130 at paragraph 14, who will be reading the ballot paper against the factual matrix of any publications to him by Unite and Argos."
"11. a judge would conclude that the strike action had as its aim a number of targets and only the lingering grievance about the outcome of the 2013/14 pay round. Accordingly, on that factual premise, I would expect the outcome of the trial to be that in the words of Section 226, the inducement by the trade union to its members to take part in the strike tomorrow was not protected by a ballot held,
"By ballots held "in respect of the action'.
That phrase must apply both to the action to be taken and to the trade dispute in support of which it is to be taken. "
In reaching his decision, Mitting J considered that the protection afforded by the legislation would not extend to "a strike whose object includes, but is not limited to" the particular dispute specified on the ballot. In apparent acknowledgement that his approach might be considered "too radical" (paragraph 11), Mitting J further went on to find that, on the facts of that case, the strike action that had been authorised by the ballot had effectively been discontinued (paragraphs 12-14).
"An act is to be taken as having been done with the support of a ballot if, and only if, the union has held a ballot in respect of the industrial action in the course of which the breach or interference occurred. So the instruction to break the contract or interfere with its performance and the obedience to that instruction are industrial action and one has to consider whether the course of industrial action which then occurred was a course of industrial action in respect of which a ballot has been held. I look therefore to see what this ballot was about "
"What the legislation does is to make a ballot a condition precedent to taking industrial action in furtherance of a trade dispute. The legislation requires the appropriate questions to be identified in the ballot paper . If there has ceased to be a dispute over those questions but the industrial action continues, then the subsequent industrial action cannot be action which is supported by the ballot. The ballot has achieved its purpose and is exhausted." (see per Woolf LJ (as he then was) at paragraph 23)
"83. Some argument was addressed to me on the question whether it is incumbent on the union to define or describe every issue with which the dispute is concerned in the information supplied to members taking part in the ballot. No express requirement to this effect is to be found in the statute, and I can see no reason to imply one. It is, of course, incumbent on a union which calls a strike to establish that the strike has the support of a ballot, and this may make it necessary to identify the strike which is called with the strike which was voted for. But this is a matter of evidence. In the present case there is not the slightest difficulty. The information sent to registered dock workers taking part in the ballot was clear and comprehensive and fairly described the dispute which the union perceived to exist. If the union calls a strike in furtherance of that dispute, it will have had the support of the ballot."
Although an appeal against Millett J's decision was allowed by the Court of Appeal (ABP v TGWU [1989] IRLR 305), this point was not challenged.
"The voting paper must indicate the period or periods within which the industrial action, or as the case may be, each type of industrial action, is expected to take place."
It was common ground in that case that the paramount purpose of the subsection was "that a trade union member should know what he is being asked to vote for" (paragraph 13). Lavender J went on, however, to make clear that this was something that needed to be understood contextually:
"17. It seems to me that the word 'expected' in the subsection has to be read in the context of all the uncertainties which are inherent in a trade dispute, some of which were explained by [the general secretary of the union] when he said as follows:
' planning industrial action strategy is necessarily both a dynamic as well as a reactive process. It is one which is very much contingent upon (a), various factors which are either not known before the ballot papers are sent out to members and, (b) other variables which are entirely outside the control of the defendant, for example Thomas Cook's response to the ballot result '
18. It became apparent in the course of argument that difficult and potentially insoluble conundrums could arise if the relevant expectation for the purpose of the subsection is taken to be the trade union's best guess as to how the trade dispute will end, rather than its proposals for the form of industrial action it seeks authority to take if the dispute continues."
"23. This raises the issue as to the position in law where one side to an industrial dispute considers that the disputes which were the subject of the ballot have been resolved but the other party to the dispute contends that this is not the case. [The employer] submits that in this situation it is for the court to determine, by applying an objective standard, whether the party who is contending that there is still a dispute is acting reasonably in so doing. Although this submission has its attractions, I cannot accept that it is correct. [The union] submits that for a dispute to continue it is sufficient if the side who still regards itself as being in dispute, honestly and genuinely believes this is the position. Modified by what I have to say hereafter, I would accept [that] general approach. What the legislation does is to make a ballot a condition precedent to taking industrial action in furtherance of a trade dispute. . If there has ceased to be a dispute over [the questions identified on the ballot] but the industrial action continues, then the subsequent industrial action cannot be action which is supported by the ballot. The ballot has achieved its purpose and is exhausted. This remains the situation where there is no longer any real or live dispute over the questions which were the subject of the ballot but one side of the dispute either deliberately or unintentionally or irrationally prolongs the appearance that the dispute continues. Examples of this include seeking to obtain protection of the ballot for some other dispute or other ulterior purpose or because of a conflict of personalities.
24. Adopting this approach, the question arises on this interlocutory appeal as to whether the borough can establish a triable case that the issues identified in the ballot paper had been resolved prior to the orders being made by the judge. "
"71. There is no requirement that the union should be acting exclusively in furtherance of a trade dispute. It is sufficient if the furtherance of a trade dispute is one of its purposes. Moreover, purpose must not be confused with motive. What the union hopes to achieve by the strike must be distinguished from its motives in calling it. It is sufficient if the union calls the strike for the purpose of furthering the dispute and in the honest belief that it will do so. The presence of an improper motive is relevant only if it is so overriding that it negatives any genuine intention to promote or advance the dispute; ... To succeed on this issue, therefore, it is not enough for the plaintiffs to show that the union was not single-mindedly pursuing its industrial objectives; they must show that the union called the strike without any genuine intention of pursuing those objectives. ..."
Argument, Analysis and Conclusions
The Parties' Submissions
Analysis and Conclusions
" As a point of principle, if our members are on strike then we are in dispute with the employer and the only basis on which we will meet with the employer is for the purpose of resolving the dispute. This means if matters are going to be resolved they need to be resolved as part of the industrial dispute resolution process."