Here is the ruling on the Metrobus case, of which BA were clearly aware. What mystifies me is how UNITE didn't know this was coming. Wasn't John Hendy the QC representing them last week?
Where an employer sought an injunction to restrain a strike, a union’s failure to comply with its obligation under s 231A of the Trade Union and Labour Relations (Consolidation) Act 1992 to inform the employer as soon as reasonably practicable of the result of the ballot could justify the grant of an injunction restraining the strike. S 231A, and also ss 226 and 234A, were not disproportionate restrictions on the rights of association conferred by art 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The obligations under those sections could not be regarded as onerous so that they could be said to constitute a serious impediment on a union’s ability to call a strike.
The Court of Appeal so stated in a reserved judgment dismissing the appeal of the defendant, Unite the Union, from the decision of King J on 9 October 2008 by which he granted an interim injunction restraining Unite from calling a strike by members who were bus drivers working for, inter alia, the claimant, Metrobus Ltd. The judge found that there were fatal defects in the notice of the ballot, in the two strike notices, and in the failure of Unite to notify Metrobus sufficiently promptly of the result of the ballot. Unite contended that the grounds on which the judge granted the injunction constituted a serious impediment on its ability and that of any other union to call a strike.
LLOYD LJ said that Unite submitted that the provisions of the 1992 Act as regards industrial action were to be seen in the light of fundamental right of freedom of peaceful assembly and association including the right to form and to join trade unions conferred in art 11 of the Convention. Decisions of the European Court of Human Rights recognised that collective bargaining and strike action were important means by which a citizen’s rights might be protected without any formal recognition of either as an essential element of the art 11 right (see Unison v United Kingdom [2002] IRLR 497) and had now recognised that the right to collective bargaining was an essential element in that right: see Demir and Baykara v Turkey(Application No 34503/97) 12 November 2008. Unite also submitted that EC law recognised the fundamental nature of the right to strike: see International Transport Workers’ Federation v Viking Line (Case C-438/05) [2008] ICR 741. Unite submitted that the relevance of the European Court of Human Rights jurisdiction was that restrictions on the ability of a trade union to call a strike had to stand up to scrutiny under art 11. Were they appropriate? Such restrictions could be justified in the interests of members of the union, who were entitled to be protected against the calling of a strike which did not have the support of a majority of the relevant members, not that such restrictions could be a necessary protection for employers. In his Lordship’s view the legislation did take account of the legitimate interests of employers. A balance was necessary between the rights afforded to workers by art 11 on the one hand and the rights of the employer under art 1 of the First Protocol to the Convention on the other. The binding effect of art 11 did not restrict the scope for a wide variety of different legislative approaches. Such variety was to be expected and was permitted by the margin of appreciation permitted to member states as regards conformity with the Convention.
Section 231A of the 1992 Act imposed a freestanding obligation on the union to inform the employer as soon as reasonably practical of the outcome of the ballot, regardless of the union’s decision as to industrial action, and His Lordship agreed with the judge that the union had not complied with it. This point affected also the ballot notice and the strike notices. Unite might have misunderstood the application of s 226A(2C)(ii). If so, it ignored the assistance provided by the Code of Practice. In assessing the reasonableness of the legislation it was legitimate to take account of the fact that that code was there to help in cases of doubt or difficulty. The requirement of an explanation was not an onerous obligation. Nor was it unreasonable for a trade union, when supplying information from its own sources, to be obliged to say something about how the information supplied had been arrived at. Assessing the requirements imposed by ss 226A and 234A, it did not seem to His Lordship that the obligation to provide an explanation of the figures could be said to be unreasonable, excessively onerous or disproportionate.
MAURICE KAY LJ and SIR MARK POTTER P delivered judgments concurring in the result
Appearances: John Hendy QC and Simon Gorton (instructed by EAD Solicitors LLP, Liverpool ) for the union; Charles Béar QC and Paul Gott (instructed by Bircham Dyson Bell ) for the employer.
.
Ah yes, I checked:
In response on Thursday, John Hendy QC for Unite said the union had been "assiduous" in its efforts to comply with the law.