Injunctions due to TU incompetence
One for the anoraks........
(Courtesy of Eversheds)
04 March 2011
Key strike law decision from Court of Appeal
The law relating to industrial action is complicated and many aspects are unclear, mainly because of conflicting court decisions, complex statutory rules or because of the absence of judicial interpretation. In particular, uncertainty exists over the degree to which trade union failures in the strike ballot process will invalidate any strike that follows. Today's decision from the Court of Appeal departs from recent High Court decisions and will be welcomed by trade unions but not employers.
Background
For a trade union to organise lawful industrial action, it must comply with a number of specific statutory requirements. These include conducting a ballot and notifying the employer in accordance with detailed rules set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
A breach of these ballot and notice rules can result in industrial action being stopped by a court injunction, usually obtained by the employer. This has been illustrated in recent times by injunctions involving, for example, British Airways and Network Rail. However, trade union criticism has been mounting against the TULRCA rules and the way the courts have interpreted them. This includes union criticism that the rules are too strict and inflexible, thereby allowing employers to obtain injunctions. Today's case considers some of these criticisms, in particular:
· the extent to which accidental failures in the balloting process can be ignored
· the extent of the obligation on trade unions to maintain accurate membership records in order to comply with employer strike and ballot notices, and
· the nature and detail of the explanation that the trade union must provide to explain how it arrived at the information provided in the notices to the employer (about the numbers of employees involved in the action, their categories and workplaces).
Decision
The case involves two separate transport strikes, involving London Midland Railway and London Docklands Railway, both of which were halted by employer injunctions granted by the High Court in December and January respectively this year. Aslef and RMT, the two unions involved, were successful in their appeals against the injunctions on the following grounds:
· whilst sending ballot papers to two members who were not entitled to vote (where over six hundred were balloted) breached TULRCA, the statute provided a defence (section 232). This defence permits small accidental failures in relation to entitlement to vote and the conduct of the ballot to be disregarded. The Court of Appeal held that to take advantage of this accidental failures defence, the failure must be unintentional, but it did not also have to be unavoidable. In other words, just because the union could have taken steps which avoided the error, like keeping better records, this did not mean by itself that it was deprived of the accidental failure defence because of human errors and failings
· in addition to the specific accidental failure defence (above) in TULRCA, the unions argued successfully that a general principle of law permits other "trifling" errors in the ballot and employer notifications to be ignored and should not form a basis for invalidating the whole process
· the Court departed from previous High Court case law by deciding that, when complying with TULRCA rules about notifying the employer about the numbers, categories and workplaces of the employees involved in the dispute (in the ballot notice), it must provide those figures which are as accurate as reasonably practicable
in the light of information it possesses at the time. The Court stated that these were "important limiting words" which need to be given weight when considering a union's obligation. As such, the trade union had complied in the circumstances. Importantly, by focusing on the information actually in the hands of the union, the Court rejected the notion that trade unions have a duty to keep proper records, or collect further information, specifically in order to comply with the balloting and notice rules under TULRCA. However, this does not mean that trade unions escape any obligation in this respect; as the Court pointed out, it must still supply the employer with information as accurately as it reasonably can, for example, collate and obtain relevant documents from union officers and analyse the information
· the Court of Appeal decided that a trade union's duty to provide an explanation of the figures (about employee numbers, workplaces and categories) contained in the strike and ballot notices is not an onerous duty. Again, this runs contrary to recent High Court case law and means that the repeated use of a formulaic or generic explanation, as is often the case, can suffice. In reaching this decision, the Court of Appeal approved the analysis of what is required under paragraph 16 of the Industrial Action Code of Practice.
Comment
This decision will be welcomed by trade unions, given the less prescriptive approach taken by the Court of Appeal to the standards they must reach in order to comply with the statutory ballot and notification process.
However, that inevitably leaves employers with less certainty when it comes to relying on the information supplied by the trade union, for example, identifying those employees involved in a potential strike. This, in turn, makes contingency planning that much harder.
While the case will reduce the number of employer injunctions granted on minor technicalities, it does not spell the end of all injunctions. The rules under TULRCA are there to be complied with, trifling and small errors to one side.
RMT v Serco Limited and ASLEF v London and Birmingham Railway Limited