Balfour Beatty Engineering Services Ltd v Unite the Union
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 16 February 2012 |
| Neutral Citation | [2012] EWHC 267 (QB) |
| Court | Queen's Bench Division |
| Date | 16 February 2012 |
| Docket Number | Case No: HQ12X0331 |
[2012] EWHC 267 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ12X0331
Bruce Carr QC and Mohinderpal Sethi (instructed by Pinsent Masons LLP) for the Claimant
John Hendy QC and Michael Ford (instructed by Thompsons) for the Defendant
Hearing dates: 7 and 8 February 2012
On 7 and 8 February 2012 I heard an application by Balfour Beatty Engineering Services Ltd ("BBES") for an interim injunction against Unite the Union ("Unite"), seeking an order in the following terms:
"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."
It is unnecessary to go into the issues of the industrial dispute, but it relates to the organisation of the construction industry and the collective bargaining arrangements within it. These are complicated by a number of factors and, in particular, by the divide between the electrical and mechanical trades. For some time, the Joint Major Contractors Group (supported by the two major employers' bodies) has been concerned to effect changes to the industry in the interests of what it perceives to be modernisation. In July 2010 a working party was set up to draft an agreement that was supposed to fit the needs of major contractors with multi-skilled workforces. It produced the Building and Engineering Services National Agreement ("BESNA"), of which one of the main features is to introduce a new semi-skilled installer grade. This is regarded as contentious by Unite, which considers that it would mean a reduction in the work available for skilled electricians. At the risk of over-simplification, I can say that this is one of the principal topics in the current dispute.
Although the application is for interim relief, it has long been recognised that the usual test based on American Cyanamid Co v Ethicon Ltd [1975] AC 396 is inappropriate in such circumstances because the outcome can often be, in effect, determinative of the relevant union's opportunity to take industrial action. This recognition has been embraced in the provisions of s.221 of the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended). It requires that the court take into account, on any such application, the likelihood of the union establishing a trade dispute defence following a full trial. It is not always easy to form a judgment about the outcome of a case at an early stage and, in particular, when the court is confined to only partial or inchoate evidence. Nevertheless, as with the provisions of s.12(3) of the Human Rights Act 1998, that is the test which Parliament has set. It is thus clear that no applicant in this Claimant's position can expect to succeed in obtaining interlocutory relief merely by showing (i) that there is a serious issue to be tried, (ii) that the balance of convenience lies in its favour and (iii) that it is likely otherwise to suffer harm which cannot be adequately compensated for in damages.
If the court concludes after such an inquiry, however difficult, that the union in question is likely to establish the trade dispute defence following a full trial, that does not necessarily conclude the issue of whether to grant an interim injunction. Nevertheless, it is likely to be in exceptional cases only that the court, having reached such a conclusion, will go on to grant relief: see e.g. Serco Ltd v National Union of Rail, Maritime & Transport Workers [2011] ICR 848, 854–855 at [13], per Elias LJ.
Almost all industrial action would be prima facie unlawful at common law: workers who withdraw their labour would usually be acting in breach of their contracts of employment. So too, those who call or organise a strike would be liable, in principle, for the tort of inducing a breach of contract. Because in modern times public policy recognises the importance of the "right to strike", it has been necessary to confer immunities from tortious liability, in certain circumstances, provided the action in question is intended to advance an industrial objective. The formula adopted is that protection will only be afforded if the industrial action is "in contemplation or furtherance of a trade dispute". In the current statute the relevant provision is contained in s.219.
The modern law requires that certain procedures be complied with before a trade union can obtain the benefit of the statutory immunity. The purpose is to try to ensure minimum standards of democratic legitimacy. Union members who are approached with a view to participating in strike or other industrial action must have the opportunity to vote in secret on whether they support it or not. The immunity only applies if, of those members voting, there is a simple majority in favour following a lawful ballot.
The 1992 Act was amended (by the Trade Union Reform and Employment Rights Act 1993) to impose an additional obligation on a trade union to give certain specified information to any employer likely to be affected by strike action concerning the scope of a proposed ballot, its outcome and any resulting call to its employees to take action. The effect of these statutory provisions is that a failure to comply with the obligations of notification would preclude any protection from tortious liability.
It was sometimes suggested in the past, because the protection for strike action in this jurisdiction was structured in terms of immunity from the general law, that the relevant legislation should be construed against those seeking to take advantage of it: see e.g. the observations of Lord Denning MR in Express Newspapers Ltd v McShane [1979] ICR 210, 218. On the other hand, it is now recognised since the advent of the Human Rights Act 1998, at least, that it is appropriate to construe the relevant statutory provisions in a way that is compatible with rights enshrined under the European Convention on Human Rights and Fundamental Freedoms. We have traditionally not recognised a right to strike, as such, but have adopted the mechanism of providing for immunities. On the other hand, the approach adopted in Strasbourg has been to recognise the right to strike as part and parcel of the right to freedom of association conferred under Article 11(1). Accordingly, the Court of Appeal in Serco Ltd v National Union of Rail, Maritime & Transport Workers, cited above, acknowledged that a presumption of adverse construction would be inappropriate. Thus, in the words of Elias LJ at [9], the legislation should simply be construed "in the normal way, without presumptions one way or the other". He referred to the words of Lord Bingham in P (A Minor) v National Association of School Masters/Union of Women Teachers [2003] ICR 386, at [7], who said that it was appropriate to give the provisions of the 1992 Act a "likely and workable construction".
Otherwise, it is probably an accurate statement of the law to say that the legislation on industrial action in this jurisdiction should be interpreted in accordance with our normal canons of construction and without any need to have resort to Article 11: see e.g. Metrobus v Unite [2010] ICR 173, CA.
Another aid to construction in this statutory context is brought to bear by reason of s.207 of the 1992 Act, which provides that the court needs to take into account any relevant code of practice. It is agreed by the parties, therefore, that it is appropriate to have regard to the 2005 Code of Practice on industrial action, ballots and notice to employers. My attention was drawn by Mr Carr QC, in particular, to the following paragraphs of this code:
"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."
As the Claimant's draft order records, a ballot was carried out of some Unite members between 19 January and 2 February of this year in order to see whether they wished for industrial action to be taken. This followed shortly after a balloting process which had begun in November 2011 and was later abandoned. The Claimant's challenge to the latest ballot in these proceedings is based upon allegations of non-compliance with the requirements of ss.226–232 of the 1992 Act and specifically with regard to s.230. Underlying these statutory requirements is Parliament's intention " … to ensure fair dealing between employer and union and to ensure a fair, open and democratic ballot": British Airways Plc v Unite [2010] ICR 1316, 1342 at [152], per Smith LJ. It is important to keep that...
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