Engineers' and Managers' Association v Advisory, Conciliation and Arbitration Service
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE CUMMING-BRUCE |
| Judgment Date | 14 May 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0514-1 |
| Docket Number | 1978 E. No. 135 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 1979 |
[1979] EWCA Civ J0514-1
The Master of The Rolls
(Lord Denning)
Lord Justice Lawton and
Lord Justice Cumming-Bruce
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Chancery Division
(Mr. Justice Oliver)
MR. S. GOLDBLATT. Q.C. and MR. P. CLARK (instructed by Messrs. Lawford & Co.) appeared on behalf of the plaintiffs (Appellants).
MR. H. BROOKE (instructed by the Treasury Solicitor) appeared on behalf of the First Defendants (Respondents).
MR. C. K. HICKLING, Deputy General Secretary, UKAPE, represented the Second Defendants (Respondents).
MR. S. BROWN (instructed by the Treasury Solicitor) appeared on behalf of the Attorney-General as amicus curiac.
In the engineering industry there has for many years been a conflict between the rival unions. In particular between the lower grades of workers (such as manual workers) on the one hand, and the higher grades of professional men (such as university graduates) on the other hand. The lower grades of workers are represented by TASS which is a subsidiary section of a big union (AUEW). The higher grades of professional men are represented by two independent unions. One of them is called the Engineers' and Managers' Association (EMA). The other is the United Kingdom Association of Professional Engineers (UKAPE). Some professional men belong to EMA. Others belong to UKAPE. Others belong to no union at all. But there is this significant difference. EMA is affiliated to the big organisation of trade unions called the Trades Union Congress (TUC). Whereas UKAPE is not so affiliated. This difference looms large in the present case.
This conflict has led to many battles for power. Recently there was a battle about a factory at Bedford where they manufacture steam turbines. UKAPE sought to obtain recognition for the purpose of collective bargaining. This was vigorously opposed by TASS and its associates. The issue was referred to the Advisory Conciliation and Arbitration Service (ACAS). They refused to recommend recognition. One of the reasons was because ACAS feared that TASS would use its industrial "muscle" if UKAPE were recognised. This court held that the report of ACAS was invalid. The case is reported in (1979) Industrial Relations Law Reports 68. It is under appeal to the House of Lords.
This time it is a battle about a factory at Whetstone near Leicester where the General Electric Company manufacturereactor equipment. Most of the professional engineers desire to he recognised for the purpose of collective bargaining. Either by EMA or UKAPE but not by TASS. This is vigorously opposed by TASS. Again TASS want all the higher grade professional men to join TASS and to exclude EMA and UKAPE altogether. The issues have been referred to ACAS. But everything has become bogged down because ACAS have been marking time. The professional engineers have become very restive about the delay. They have come to the courts asking for a declaration that ACAS should get on with their job. In particular they ask that ACAS should hold a ballot of the professional engineers so as to ascertain their opinions.
But this case differs from all other cases hitherto because there is here another body which claims to have jurisdiction over the dispute. It is the Disputes Committee of the TUC. This is a domestic body which has no statutory authority whatever. It arose out of a congress of the TUC held at Bridlington as far back as 1939 - long before ACAS was thought of. That congress was concerned about disputes between unions which were affiliated to the TUC. It enunciated eight principles. These were to be regarded as morally binding on affiliated unions, but not legally binding. It made regulations to govern the procedure for resolving disputes between unions. In particular they were to be referred to a Disputes Committee which could give directions to an affiliated union. If those directions were disobeyed, the affiliated union could be suspended or even expelled from membership of the TUC.
THE SITUATION AT WHETSTONE
In 1976 at Whetstone the professional men in the highergrades numbered about 300. Out of these some 113, that is more than one-third of them, were members of EMA: some 91l, that is nearly one-third, belonged to no union at all. The remaining one-third were about equally divided, some 49 to UKAPE and 40 to TASS. Many Of these professional men were anxious to be represented for the purpose of collective bargaining with their employers on such matters as their salaries and conditions of service. The first move was made by UKAPE. On the 9th July, 1976 they applied to ACAS for recognition for the purpose of collective bargaining with the employers GEC. This application got held up for a time for one reason or another.
Meanwhile EMA also sought recognition from the employers for the purpose of collective bargaining. In aid of it EMA started a recruiting campaign so as to increase their membership at Whetstone. They already had over 100 out of 100 in the higher grades. They tried to recruit new members from among the 90 or more who had not joined any union at all. TASS strongly objected to this. They wanted to get all the higher grades within their own sheep-fold.
Seeing that EMA were affiliated to the TUC, TASS at the end of 1976 complained to the TUC. They appointed a Disputes Committee under the terms of the Bridlington Congress. On the 16th March, 1977 this committee made an award in favour of TASS. It found that EMA had infringed the Bridlington principles by recruiting at Whetstone. It awarded that EMA should cease recruiting among the professional engineers. It said that the existing EMA members (over 100 of them) should join TASS. It awarded that EMA should not proceed with its claim for recognition. In short the Disputes Committee awarded that the EMA and its members should be ousted from the Whetstonefactory altogether and be replaced by TASS.
EMA CHALLENGE THE AWARD
This award was a body blow at EMA. They protested at once. They claimed that the award was a nullity and void. There was, however, nothing in the TUG rules which enabled EMA to appeal against the award. So on the 25th April, 1977 their secretary wrote to Mr. Len Murray, the General Secretary of the TUC, and said that the award was perverse. He put their case so forcibly that I would quote it:
"I am bound to advise you that my Association can see no way in which it can be held to be morally bound by an Award which is so flagrantly at variance with the principles which should determine the Award, and so contrary to the evidence which was submitted.
"Further, if my Association were to comply with the Award it would effectively deprive all our members in the engineering industry of their right to representation - indeed of their right even to seek recognition. For the tens of thousands of staff working at broadly professional and managerial levels in the engineering industry who are not members of any union, and therefore quite unrepresented, implementation of the Award would imply in general that they are to be denied the opportunity to choose freely even as between affiliated unions, and specifically that they are not to be allowed to choose the one affiliated union - my own Association - which exists to represent these levels of staff in particular".
EMA APPLY TO AGAS
Getting no satisfaction from Mr. Murray, EMA threw down the gauntlet. In defiance of the award, they took advantage of the new statute. They made an application to ACAS for thereference of a recognition issue under section 11 of the Employment Protection Act 1975. It was made on the 27th April, 1977.
On getting this application, ACAS had to consider seriously the position at Whetstone. In particular they had already received an application by UKAPE for recognition there. It was unlikely that both unions would be recommended. If recognition were to be afforded to the professional men, it would have to be either UKAPE or EMA - one or the other - or both jointly. ACAS seemed to be uncertain what to do. They were faced with the award by the Disputes Committee of the TUC. The delay was such that on the 16th June, 1977 EMA went to their solicitors and threatened proceedings against ACAS. Further pressure was brought to bear by the decision of this court in the Grunwick case (1978) Appeal Cases 655. It was there declared that the duty imposed on ACAS was mandatory and not directory.
Under these pressures ACAS got on with their job. They prepared a questionnaire for submission to the professional men at Whetstone and got it agreed. This was followed on the 20th September, 1977 by a meeting of the council of ACAS at which they "considered a number of representations with regard to the S.11 applications made by UKAPE and EMA. Its decision was that ACAS had no alternative but to exercise its statutory duty to proceed with the inquiry at GEC REL, and the Council also agreed the form of questionnaire to be used".
THE AGREED FORM OF QUESTIONNAIRE
The agreed form of questionnaire has assumed such importance that I think it would be useful to set it out. Each employee was asked:
| "1. | What is your present job title? | |
| 2. | In what category are you employed? | |
| 3. | At which location are you employed? | |
| 4. | In which department are you employed? | |
| 5. | Are you a member of a trade union - if so, which one? | |
| United Kingdom Association of Professional Engineers | UKAPE | |
| Engineers' and Managers Association | EMA | |
| Association of Scientific Technical and Managerial Staffs | ASTMS | |
| (AUEW)... |
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