There are actually a few legal issues which could scupper this ballot:
1a. Are the records used for the ballot accurate to a reasonable level?
I believe the Electoral Reform Service (who administered the ballot on behalf of Unite) had concerns on this front from the start, evidenced by the fact that in the most recent ballot, ERS never actually released a statement on their notepaper setting out the results of the ballot; if you notice, the thrid ballot announcement was on ERS notepaper, the latest (fourth) ballot result was published on Unite notepaper:
http://uniteba.com/ESW/Files/BA_ballot_result_consultative_20_7_2010.pdf
The latest confirmation was communicated by Unite directly to its membership:
http://uniteba.com/ESW/Files/BAllot_..._21jan2011.pdf
It will be telling on what notepaper the ballot result is publicised this time round (which I think shall be known as the “fourth” ballot).
Last time round there was anecdotal evidence that non-members were balloted, and that multiple ballots were sent to a number of people, certainly including those who were no longer union members and possibly permitting duplicate votes by those who were current members. This would have skewed the results materially.
Though BA passed on the evidence for these breaches to ERS (classed as a “legal blitz” by Unite) it was ERS which refused to support the ballot, not BA’s legal activities, as BA never took this issue to court. There was no recourse to the courts/legal challenge as has been implied in several Unite Press Releases.
It has been alleged that the BASSA rep responsible for the recordkeeping (and, apparently, paid to do so through membership subscriptions) had “outsourced” that function to another person. It is enough for BASSA to demonstrate they have a robust methodology for keeping accurate records, there is no compulsion for 100% accuracy.
“Reasonableness” is the only benchmark they have to satisfy. Far from the law being pitched against successful ballots, many other unions have held successful ballots in recent times (RMT for Tube Drivers, I think the Post Office had a strike recently, though no-one noticed) and BASSA was not able to manage this very fundamental task. This is a shocking indictment of their abilities to administrate their own records (which is a legal requirement under Chapter 3 of the Trade Union and Labour Relations Act 1992), and would justify a motion of censure from the Certification Officer, should a BASSA member choose to take this up with that CO.
It appears from posts here that Unite itself has now taken over the administration of BASSA records, with letters having been sent to confirm BASSA membership which arrived between 18th-22nd February. That exercise would probably be enough to demonstrate a robust process, but as to the actual outcome especially with BA’s peripatetic employee lifestyle, it will still be a challenge to properly ensure accuracy, especially if members are away on longer trips over the next few days. I personally do not believe the objectives of this mailshot will be realisable to the extent required prior to the commencement of the ballot on March 1st.
This is further complicated by Holley’s statement on 23 January telling the 6,500 Union members who did not vote for Industrial Action to leave Unite/BASSA/Amicus, which will no doubt have created a moving target for BASSA’s own membership records:
Holley
Now BA's plans are in the open I would like to send this message to everyone who has either left BASSA, voted NO, or to a lesser extent not voted. You have been given your say and the majority has spoken. If you have any integrity you should accept Bill Francis's offer straight away because your actions and votes are a tacit acceptance of what BA propose.
Don't sit back and see if your brave colleagues who voted YES can fight your fight for you. That is cowardice, you have made your bed and now you must lie in it, alongside Bill. Good Luck, it has been nice knowing you.
www.uniteba.com/LATESTNEWSUPDATES.html
So while I believe Unite should be in a position to demonstrate it has “taken in hand” BASSA’s recordkeeping, I do not believe there is reason to believe those records will be in any better state by 1 March than they were last time round, principally due to the moving target created by DH himself.
1.b. Failure to Administrate the Branch Properly
The keeping of accurate membership records is a legal responsibility of the Branch and Union, similar to the requirement to keep audited accounts and grant access to members to such records:
Trade Union and Labour Relations (Consolidation) Act 1992
BASSAwitch has recently had a formal request for visibility of the accounts denied (see the previous page of the forum for BASSA’s response). I think the deadline is 15 March 2011; I hope BASSAwitch has by now copied the derisory response to BASSA’s auditors (does anyone know who they are? It’s possibly Northover Bennett & Co in Eastleigh Hants, as they set up the “BASSA Ltd” entity in January this year as the holding company for BASSA subscriptions?), Unite’s auditors, The Certification Officer and the TUC so that any censure will happen at the earliest opportunity once the 28 day deadline has passed; let’s hope BASSA are in a position to release its historical accounts to its own membership and demonstrates both its administrative effectiveness and its transparency.
While this is not a reason to stop action, any concern about the effectiveness of the branch administration ( accounting, membership AND related to the election of officials, which hasn’t really been challenged to date) could adversely affect a range of serious issues which would harm BASSA’s credibility.
2. That the Reason for Industrial action was “unclear”
Simple really, BASSA needs to give one, clear reason to ballot; any more than that is a problem as it opens up multiple areas for potential challenge.
In the most recent ballot, DH set out four reasons, with an extra fifth tagged on by Unite. The fifth reason (introduction of Mixed Fleet) was an attempt to make this ballot unconnected to previous ballots. But it wasn’t unconnected, and did not succeed in that endeavour. I think as that ballot was declared invalid (not *
illegal*, as Unite would have you believe!) they could possibly used the Mixed Fleet (MF) argument again, and this would be their strongest suit – even that could easily be defeated. HOWEVER, BA has already won the right to introduce changes in its workforce, here is the court report setting that out:
Malone & Ors v British Airways Plc [2010] EWHC 302 (QB) (19 February 2010)
and it is similarly clear that BA did indeed consult BASSA on MF several years ago, and it was offered a solution which avoided MF but declined, so it should be quite easy to gain an injunction if that is the reason on which they ballot.
3. That the Reason for the Ballot Continues Previous Action
It is my understanding that Unions are permitted 12 weeks within which to conclude their dispute; they must demonstrate they have made proactive effort to negotiate. If they fail to reach a negotiated settlement, the dispute is effectively over and the Union has failed in its attempt to change the employer’s stance.
No further withdrawal of labour may occur for reasons connected with the initial dispute, and while a strike is possible it remains outside the “protection” of the Trade and Industrial Relations Act 1992, which means BASSA members are exposed to having their employment terminated with minimal compensation if they choose to withdraw their labour. You can read more about this here:
www.direct.gov.uk/en/Employment/TradeUnions/Industrialaction/DG_179248
It's important to emphasise that the criterion for unprotected action IS NOT that the reason for the strike is "the same as previous ballots". The evidential tests for unprotected action are set out below:
Dismissal and unprotected industrial action. Official industrial action organised by a trade union is 'unprotected' if:
1. the trade union has failed to hold a postal ballot in-line with the law
2. the trade union has not told the employer, in-line with the law, about the industrial action ahead of a ballot or ahead of the industrial action
3. it has been disowned by the trade union (eg because someone without authority called for the action, or because the trade union considers the dispute to be resolved), sometimes called 'repudiated action'
4. it is secondary industrial action (in support of workers of another employer), sometimes called 'sympathy action'
5. it promotes ‘union labour only’ practices (also known as a ‘closed shop’)
6. it is in support of any workers who have been dismissed for taking unofficial action
7. other aspects of industrial action law have been breached by the trade union
If you are dismissed while taking part in unprotected industrial action called for by your trade union, you cannot normally claim unfair dismissal if all the other employees taking part are dismissed as well.
BASSA has never set out to its membership the risks of unprotected action; it has a moral obligation, especially if it believes it is covered, to set out these risks to its membership.
As an aside, BA has already sent a detailed repudiation on the issues around both Disciplinaries and Sick Pay while Striking to Unite in December 2011:
http://freepdfhosting.com/7a5b9147a5.pdf
AND
http://freepdfhosting.com/3382e93952.pdf
So it’s unlikely Unite could use those reasons for industrial action with any certainty of success.
4. Incitement to Secondary Action
There is possibly something in LM’s recent plea for other Unite members to join in the action:
LM: I want to be very clear in my statement to all members of our union. I expect all members to support our cabin crew members taking industrial action.
Just for one minute put yourselves in the position of those involved in the dispute. They have been villified [sic], harassed and victimised, all for standing up to maintain terms of employment and agreements. It's a disgrace and I expect all our members to recognise and respect this.
This is unclear to me, and I am not certain it represents “incitement to secondary action”. The plea begged other Unite members to join the action; I would assume this would be at LHR, but it is not clear to me that you can strike if you haven’t actually taken part in a ballot, unless it is their intention to ballot all Unite members within British Airways, and not just BASSA/Amicus Cabin Crew; given the strength of the VCC response, I wouldn’t imagine they’d get much traction. The issues of unprotected action would still remain for any others who chose to withdraw their labour.
5. Previous Industrial Action was illegal and that Unite may therefore be compelled to compensate BA for losses
I understand there is a court case scheduled for 15 March in which the further appeal will be heard as to whether the injunction against BA’s attempt to stop the first strike was legal; if it is found in BA’s favour then Unite would be in significant financial difficulty, with a “profit” of under £500k last year and assets of around £80m and a potential claim in the £100s of millions. The only evidence I have for such an action is somewhat tentative:
www.rpc.co.uk/index.php?task=download&option=com_flexicontent&cid=6917&id= 948&fid=22&Itemid=92
"• In what appears to be an increasingly bitter battle, the British
Airways plc v Unite dispute will go to trial at the High Court
in March [2011]. BA is claiming damages in respect of the strikes in
March last year. It is the most high-profile example of a trend of
employers using the courts to stop industrial action. We may see
further examples with industrial unrest expected in 2011."